Defense Wants Delay in 2021 Murder Case Due to Absent Witness

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On what was supposed to be the first day of Bernard Matthews‘ murder trial, July 22, his defense attorney asked DC Superior Court Judge Michael O’Keefe to delay the case because the prosecution isn’t calling a witness she wanted to cross-examine.

Matthews, 44, is charged with first-degree premeditated murder while armed, possession of a firearm during a crime of violence, unlawful possession of a firearm by a convict, and carrying a pistol without a license for his alleged involvement in the shooting of 22-year-old Diamonte Green. The incident occurred on Feb. 16, 2021, on the 300 block of 33rd Street, SE.

According to court documents, an alleged threat made by Green to a relative of Matthews was the motive for the shooting. Green was found unresponsive and not breathing with eight gunshot wounds to the torso, extremities, neck, and head.

Before jury selection began, Matthews’ attorney, Marnitta King, alleged a prosecutorial error made delay necessary.

According to King, the prosecution had filed a notice the previous day they would not be calling a records expert to testify about relevant Instagram messages. King said the defense’s case relied on cross-examining that witness.

“The Instagram messages are the most important part of this case,” King said. She intended to question the witness to prevent the jury from concluding the dates and times on the message records were accurate.

King told Judge O’Keefe she would need time to adapt her case if he allowed the records to be brought into evidence without a so-called custodian.

The prosecution argued the custodian could testify only to the existence of records, not to any discrepancies with dates and times. They said the documents are already authenticated and shared with the defense months ago, and they plan for another witness to authenticate them during trial.

King responded that, because the notice was filed the previous day, she did not have reasonable time to review it and prepare changes to Matthews’ defense.

Judge O’Keefe agreed with the prosecution that the custodian would not be able to testify to any matters outside of when and how the record was created. He pointed out King was informed on June 25 that a custodian might not be called, and she chose not to stipulate to that fact on July 18. Instead, he noted, she waited until the first day of trial to make a motion on it.

Judge O’Keefe asked the prosecution to determine by the next day whether a custodian is available to testify in the next couple of weeks. He wants that information before ruling on whether to admit the Instagram messages as evidence.

According to Judge O’Keefe, if the trial were to be delayed, it couldn’t be rescheduled in less than a year, due to scheduling constraints.

Parties are slated to return July 23.