DC Superior Court Judge Danya Dayson found that the prosecution failed to provide material evidence to the defense belonging to a homicide victim on April 14.
Jamil Whitley, 38, is charged with first-degree premeditated murder while armed, possession of a firearm during a crime of violence, carrying a pistol without a license outside a home or business, and unlawful possession of a firearm with a prior conviction for his alleged involvement in the fatal shooting of Kevin Redd, 32, on the 4700 block of Jay Street, NE on June 11, 2020. Redd sustained gunshot wounds to his left shoulder, left forearm, and chest.
Before the jury entered, Whitley’s attorney James Brockway argued that the prosecution did not preserve a bag of marijuana found in Redd’s pockets, failing to share all material evidence with the defense upon request and information that may prove Whitley’s innocence. Prosecutors allege Whitley gave the marijuana to Redd before his death. Brockway said forensic testing of the bag could have disproved this or provide Whitley information necessary for his defense.
Brockway said this was “physical, real, tangible evidence” the prosecutor should have maintained.
“The [prosecution] had a duty to preserve, and they did not preserve,” Brockway said.
The prosecutor said the marijuana was not preserved because there was no indication at the scene that it would be relevant to the case. The prosecutor said it was a very small amount and noted marijuana is legal in DC.
“None of that has anything to do with issues of materiality,” Brockway responded. Brockway added that prosecutors could not prove the marijuana did not contain an illegal substance.
Judge Dayson agreed that, while the marijuana would not have necessarily proved Whitley’s innocence, it was tangible evidence that should have been preserved. She ruled that the loss of the bag violated the defense’s right to material evidence, though it was not a failure to provide exculpatory evidence.
Brockway requested Judge Dayson impose sanctions on the prosecution and at the very least, instruct the jury about the missing evidence.
With the jury present, the defense called a former Metropolitan Police Department (MPD) officer who retrieved Redd’s belongings from the hospital where he was treated, including two clear bags of marijuana. The belongings were placed in a white bag. The officer said he attempted to look in the bag in hopes of identifying Redd, but a homicide detective at the hospital told him not to.
The officer said that after leaving the hospital with the property, he returned to the crime scene and met with a Department of Forensic Services (DFS) evidence technician. After talking to a detective on scene, the technician kept certain items and returned the rest to the officer. The marijuana was among the returned items.
The officer said he brought the returned items back to the police station, where he filled out a property record. He then left Redd’s belongings in the property room for the clerk to process. The marijuana was listed on the property record presented to the jury as evidence.
On cross-examination, the prosecution confirmed that the officer arrived at the hospital before the homicide detectives did. However, Brockway clarified that the detectives were present when a nurse handed the officer the marijuana.
Prosecutors called an employee in the United States Attorney’s Office (USAO) from the trial graphics unit, who showed videos of who prosecutors allege was Whitley and Redd at a Shell gas station, on the 4300 block of Nannie Helen Burroughs Avenue, NE.
The USAO employee discussed that the video showed the movement of the suspect vehicle from the Shell to the alley where the shooting occurred. The video also showed that vehicle leaving the scene.
Prosecutors also called an MPD sergeant who performed a search of MPD records that showed Whitley did not have a concealed carry permit or a firearm registered to him on the day of the incident.
Without the jury, Brockway motioned for a judgement of acquittal. Brockway said, even if the evidence is viewed in the light most favorable to the prosecution, it is largely based on inferences. He noted that the videos did not depict an argument between Whitley and Redd and no one saw the shooting or could attest to bad blood between the two.
Brockway concluded there was not sufficient evidence of premeditation. Brockway said the charges against Whitley depend on him having a gun, but since he cannot be clearly seen with one in the video and no one testified to seeing him with one, he should be acquitted on all charges.
The prosecutor argued there was evidence that Whitley had a gun because he was the only person seen with Redd near the time of the incident and the cause of death was gunshot wounds.
“Two people go into an alley, one person comes out,” the prosecutor said.
The prosecutor said there was evidence of premeditation because Whitley left the gas station and returned in a different vehicle wearing a surgical mask. According to prosecutors, a video showed Whitley taking something from his pocket and pointing it at the other car.
Judge Dayson denied the motion to acquit all charges, but did not yet rule on the premeditated first degree murder while armed charge. She said that while a reasonable fact finder could conclude Whitley caused Redd’s death, she was unsure if they could find premeditation. She said she would review the evidence and decide.
The defense also called a Public Defender Service (PDS) supervisory investigative specialist to testify. She said the day prior to her testimony, on April 13, she took photos and measurements of the area where the shooting occurred. The investigator said there was a break in the fence leading to Jay Street and a walkway leading to Sheriff Road that someone could exit the alleyway through without walking on to 47th Place, where prosecutors said Whitley’s car drove away from the scene.
Parties are slated to reconvene on April 15.
