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By
D.C. Witness Staff
- June 25, 2020
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Homicides
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DC Superior Court judge denied June 25 a defendants’ motion for a mistrial due to COVID-19 related delays.
Nyekemia Everett and Malik Hewitt are charged with first-degree murder while armed, conspiracy, attempt to commit robbery while armed and possession of a firearm during a crime of violence for their alleged roles in the shooting of 37-year-old Christopher Heard on the 2300 block of Ainger Place, SE in 2017. They have also been charged with obstruction of justice for allegedly using threats to persuade a witness.
The trial of Everett, 34, and Hewitt, 40, began on March 3 and continued until it was suspended on March 18, right before the prosecution was supposed to have closing arguments.
Both defense attorneys stated jurors would be unable to remember what happened since it has been so long since the trial occurred. The attorneys also said they believe that towards the end of the trial, jurors were too distracted by the pandemic to give the case their full attention.
“There were many competing demands on jurors’ attention: death rates in areas affected by the virus soared; area schools shut down, and panic set in about the safety and health risks presented by the continuation of any business as usual,” the motion said.
Towards the end of the trial, there was so much confusion about the court’s operations that one juror was sent home after security incorrectly said the courthouse was closed to the public.
The prosecutor on the case said he does not believe that the pandemic impaired jurors’ ability to pay attention or adequately remember what occurred.
When courts reopen, there will be a “serious backlog” on jury cases, he said. Also, witnesses will have to be flown in again from Ohio, Texas., and California. The prosecution also cited a precedent set by the California courts. In the precedent multiple murder trials were motioned for mistrial in the state for the same reasons. The mistrials were denied every time.
Defense attorney Nikki Lotze acknowledged the concerns, but reminded the judge that “no one is more inconvenienced than the people that must sit in jail during this delay.” She said that “if Hewitt will accept the inconvenience, it’s not too much to ask the government to fly in a few witnesses.”
Counsel agreed a voir dire must take place to ensure individual jurors can fairly proceed with the trial.
While finding the delay “problematic,” Judge Anita Josey-Herring said she does not consider it to be an issue so long as all jurors state they are okay to continue the trial.
Another area of disagreement was whether transcripts may be used to refresh jurors’ memories in the trial.
The defense fears the prosecution may use the transcripts to “cherry-pick” and give unfair weight to certain arguments. However, the prosecution said the availability of the entire transcript to both parties will prevent issues.
Judge Josey-Herring did not decide on whether transcripts could be used in the trial.
She said that every voir dire should ask jurors if they would be able to remember everything when given a full transcript.
Defense attorney Michael Madden disagreed, saying the suggestion was coercive, as it would allegedly make jurors believe the trial must go on.
Everett and Hewitt’s next hearing is scheduled for Aug. 17.