DC Superior Court Judge Neal Kravitz denied a prosecutor’s motion for trial continuance in a non-fatal shooting case on July 1.
Mario Kirksey, also known as Jaymario Kirksey, 36, is charged with assault with intent to kill, assault with a dangerous weapon, three counts of possession of a firearm during a crime of violence, and unauthorized use of a vehicle for his alleged involvement in a non-fatal shooting of an individual on the 1300 block of Okie Street, NE on Feb. 28, 2024.
The prosecution’s motion for a continuance was denied after arguments from both parties. The prosecution “ought to be ready for trial,” said Judge Kravitz.
In their arguments, prosecutors requested a 45-day continuance to gather more evidence and track down two unavailable witnesses.
DNA evidence and fingerprint evidence was previously preserved for trial, but the Metropolitan Police Department (MPD), had only tested some of the DNA swabs. When prosecutors asked for more time to test all of the swabs, Kirksey’s attorney, Kevin O’Sullivan, said “they should have done this testing a long time ago.”
Prosecutors argued that they did not need the evidence until Judge Kravitz suppressed cell site data at the last motions hearing. “The suppression of that evidence did change the government’s case,” prosecutors said.
Judge Kravitz, who suppressed the cell site evidence due to an invalid warrant, told the prosecutors that they, “should have realized the warrant was invalid,” and questioned why they did not prepare for the evidence to be suppressed.
The motion for a continuance was also based on prosecutors’ inability to find two witnesses, the victim and the 911 caller, and bring them to court—witnesses were essential to the prosecutor’s case.
“The jury expects to see and hear from the person who was shot,” prosecutors said. Yet, said they have struggled to find the victim, who is on supervised release, due to complications with Court Services and Offender Supervision Agency (CSOSA).
O’Sullivan told the court that defense investigators had been able to find the victim. He also questioned why the prosecution did not attempt to locate the victim until recently, saying, “They knew that he was going to be a potentially difficult witness to locate.”
Judge Kravitz agreed, noting the expansive resources of the prosecution, saying that if the prosecution, “Wants to find somebody, they can find this guy.”
The 911 caller, whom prosecutors said they have taken extensive efforts to locate, was also a target of the continuance motion. “Every single scrap of evidence matters,” prosecutors said when referring to the caller’s testimony.
O’Sullivan said “there is no reason for his name to come up,” in trial, noting that they would not argue to the jury that prosecutors failed to find this witness if the continuance was denied.
Prosecutors also recently identified fingerprints from a man that was allegedly present in the stolen Hyundai Tucson from which the shooter is believed to have exited. The man said he smoked a cigarette in the car with a man named “Country” who prosecutors believe to be Kirksey. Prosecutors “need more time to ascertain Country’s identity,” they said.
O’Sullivan argued that this was a weak link between Kirksey and whoever Country is and that, as it stands, would not be admissible in court.
A video of inside the Hyundai Tucson was provided to prosecutors recently, showing a cardboard box that contained a name and address. They requested more time to look into that person’s name.
O’Sullivan responded by saying that Kirksey, “asked for a speedy trial and he’s been very adamant about that request.”
Judge Kravitz said that the prosecution’s evidence may be helpful in trial, but it should have been collected in the last “14 months that Mr. Kirksey was detained.” He denied the continuance motion.
Judge Kravitz told the prosecution that when they ask for preventive detention, it’s critical to be ready for trial. He said that preventative detention causes an “incredible intrusion” in a defendant’s life.
Judge Kravitz said he did “firmly believe” that the prosecution stated 45 days in good faith, but said it’s not a realistic time period to start the trial.
Several other motions were then considered.
Judge Kravitz heard two defense motions to dismiss due to the prosecution not disclosing information, “without undue delay.” The judge said those motions were “incongruent” with the defense’s argument against the motion for a continuance, and said that it doesn’t make sense that the defense should be given more time with prosecutors’ evidence if the prosecution isn’t given more time for a continuance.
Two defense motions to dismiss due the prosecution’s failure to preserve body-worn camera footage were discussed. In previous hearings, the officers testified what happened and why the footage was not preserved.
Judge Kravitz ruled that the footage should have been preserved, but since it was not deleted out of “bad faith,” dismissal was not the appropriate sanction. He excluded one officer’s testimony from court and may exclude the other officer’s testimony, pending a call between parties and the officer.
O’Sullivan also moved to exclude homeless shelter records that included Kirksey. He argued that case law states that the records could only be used in court to show a defendant’s identity. They could not be used to show that a defendant was more likely to commit a crime.
Prosecutors offered to create a jury instruction that would follow O’Sullivan’s guidelines. Judge Kravitz said he would take the matter under advisement.
Parties are slated to reconvene on July 2.
