DC Superior Court Judge Neal Kravitz agreed with defense criticism of the DC Metropolitan Police Department (MPD) and the U.S. Attorney’s Office (USAO) for their handling of key evidence for a shooting case, in a motion hearing on June 30. While calling the ovesight “embarrassing,” he stopped short of santioning the agencies for bad faith.
Jaymario Kirksey, also known as Mario Kirksey, 36, is charged with assault with intent to kill while armed, three counts of possession of a firearm during crime of violence, assault with significant bodily injury while armed, assault with a dangerous weapon, and unauthorized use of a vehicle for his alleged involvement in a non-fatal shooting. The incident occurred on the 1300 block of Okie Street, NE on Feb. 28, 2024 and one victim was injured.
During a continued motions hearing, Kirksey’s attorney, Kevin O’Sullivan, asked Judge Kravitz to impose a “suppression” sanction. Namely, a penalty, which, in this case, would be imposed on the prosecution regarding their use of specific evidence making it inadmissible at trial.
“It ought to be embarrassing for the police department and the United States Attorney’s Office,” said Judge Kravitz in reference to mishandling of key evidence.
According to O’Sullivan, the MPD failed to retain a stolen Hyundai Tucson from which the shooter is believed to have emerged before firing gunshots. While materials from the back seat of the car were lost including key DNA evidence, some forensic evidence was collected from the front of the car.
“The lack of evidence prevents Mr. Kirksey’s ability to tell a full story,” O’Sullivan claimed.
Suppressing the prosecution’s evidence, could tilt the playing field toward the defense by reducing speculation as key elements in the case.
Citing previous case law, O’Sullivan claimed gross negligence in the police and prosecution’s actions. Such violations amount to “bad faith or deliberate loss of evidence,” constituting an extreme departure from the normal standard of care for evidence.
O’Sullivan also argued that the evidence lost is “from the most important part of the car,” and noted that the prosecution’s case is based on this evidence. The importance of these materials, he claimed, warranted a heftier sanction against the prosecution.
This claim was apparently substantiated by the case’s lead detective, who previously testified that the evidence contained in the back of the car are the most crucial materials in the case.
O’Sullivan also argued that there was no independent evidence connecting Kirksey to the vehicle, and that the weight of the evidence needed to be considered in determining the proper sanction.
“A message needs to be sent to have a deterrence over this happening again,” O’Sullivan asserted.
Judge Kravitz called the mishandling, a “comedy of errors,” but one that is “not funny because it’s a serious matter.”
However, Judge Kravitz did not find there was bad faith or deliberate action at fault. He rejected O’Sullivan’s proposed sanction, requesting that he come up with a new penalty to be imposed on the prosecution.
O’Sullivan also proposed instructing the jury to consider the missing evidence right before deliberations, but Judge Kravitz was concerned that doing so may invite speculation.
According to prosecutors, the lead detective in the case believed he could release the car because he saw that one of Kirksey’s unrelated cases had moved to sentencing. Prosecutors wanted to introduce that fact so that the jury would not assume malice on the part of the detective, but O’Sullivan argued that informing the jury of other cases Kirksey was involved in would be prejudicial.
Judge Kravitz proposed a compromise where the prosecutor could have the detective say that he looked at the wrong case without any further detail, making this an unintentional oversight as opposed to an act of bad faith.
Prosecutors wanted to introduce evidence of Kirksey living in a homeless shelter to establish that he was familiar with the neighborhood prior to the incident. However, O’Sullivan argued that revealing Kirksey’s time at the homeless shelter may cause prejudice amongst the jury.
During the investigation, prosecutors obtained a DNA sample from Kirksey after obtaining a warrant to do so. O’Sullivan argued that the evidence should be suppressed, because on one of the documents the prosecutors used to obtain probable cause, Kirksey’s name was spelled incorrectly (“Kirksy”). Judge Kravitz denied this motion, stating there was still sufficient evidence for probable cause.
The parties are scheduled to reconvene on July 1.
