Did a homicide defendant get good legal advice when he turned down a plea deal? That was the issue before DC Superior Court Judge Neal Kravitz in a July 9 motions hearing. In an usual twist, a defense lawyer in the case was the prosecution’s star witness.
On July 26, 2021, Malik Hewitt, 43, was convicted of conspiracy, attempted robbery while armed, and felony murder while armed, for his involvement in the murder of 37-year-old Christopher Heard who was lured into what he believed was a drug deal but turned into a deadly encounter on April 27, 2017, at the 2300 block of Ainger Place, SE.
Hewitt’s co-defendant, Nyekemia Everett, 38, was convicted of first-degree murder while armed, conspiracy, attempted robbery while armed, and possession of a firearm during a crime of violence, among other charges, for his involvement in the incident.
At the hearing, Hewitt’s defense attorney, Adrian Madsen, motioned for Hewitt’s murder sentence to be reconsidered. Hewitt was convicted in January of 2024 but Madsen argued Hewitt didn’t get good legal advice deciding to go to trial instead of taking a prosecution offer that would have resulted in a shorter sentence.
The witnesses included Hewitt, himself, and his first attorney,Jonathan Zucker, who was the main witness for the prosecution, while the defense called Hewitt’s second attorney, Nikki Lotze.
Hewitt described his frustration at being detached from the proceedings and which he didn’t fully understand.
He blamed Zucker, who Hewitt said had been overly negative his prospects without fully explaining his options.
“He said I would get convicted if I went to trial. I would get burned,” Hewitt said.
In Hewitt’s telling Zucker insisted that a plea deal was one his best leverageable options but didn’t fully explain the hazards of going to trial for felony murder.
Hewitt’s cognitive and hearing difficulties were noted after being shot in the head, and as the victim of another shooting incident several years prior–thus the needed for greater than usual explanation.
In cross examination, the prosecution said Hewitt said Zucker was a competent lawyer, even calling him “one of the best” during previous hearings. They also said that in hearings where plea deals had been discussed directly, Hewitt had said that he understood the terms, prior to waiving them.
When Hewitt denied this, one of the prosecutors read a transcript of conversations in which Hewitt affirmed the terms. Ultimately, he admitted to the statements.
After the felony murder charge was explained to Hewitt by his second lawyer, Nikki Lotze, he had become more receptive to a plea. Prior to his first trial, Lotze asked for a plea deal with an eight year sentence. She reduced this to a six year sentence after the first trial ended in a mistrial.
In the hearing, Lotze had said the mandatory minimum had not previously been explained to Hewitt and that she had wanted him to take a plea.
Hewitt was the driver in the fatal robbery. He had told Zucker Heard was a friend and he never wanted him dead.
The plea deals offered by the prosecution had been part of a wired plea agreement with Everett. When it was discussed during hearings, Everett rejected the pleas, despite saying he had wanted to accept. He said Hewitt’s unwillingness to accept had made him reject the pleas.
Everett appeared as a witness in the hearing virtually, calling in from a detention facility. “I accepted both plea offers,” he said during questioning, at which point the prosecution corrected him.
Hewitt’s case went through two trials, where he was eventually found guilty and sentenced to a mandatory 30 year sentence for the felony murder charge. He has served the initial years of his sentence already.
The prosecution used testimony from Zucker to argue that Hewitt had clearly been informed about the nature of his circumstances and that his decision not to accept the plea deal was deliberate.
“I explained the theory of felony murder over and over again. I tried as many ways as I could to explain it,” said Zucker testifying under a waiver of attorney client privilege.
He said that for whatever reason Hewitt had not believed him when he told him he would be convicted on the charge. He also said that there had been times where Hewitt had walked out of conversations prematurely.
Zucker had said he thought he had got to a point where there was no more he could do to help Hewitt. Hewitt had sought other council and Zucker had subsequently left the case.
In cross examination, Madsen attempted to poke holes in Zucker’s narrative. He showed Zucker a list of visits to the jail since he had taken on Hewitt’s case. He showed he had only met with Hewitt on two occasions prior to the formal plea reading in August 2018.
He also disputed the length of the conversations between Zucker and Hewitt about a plea, with Zucker admitting that some conversations had been as short as ten-to-20 minutes.
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After weighing the testimony, Judge Kravitz said it would be difficult but not impossible for Madsen to prove that Hewitt had not had effective counsel prior to his decision on the plea.
He said the lawyer has a high burden to ensure that their client fully understands their circumstances before deciding to go to trial.
The judge’s decision will hinge on that issue.
“It is not a question I have come across to date,” he said.
Kravitz asked both sides to submit a brief that addressed the following question:
“When the lawyer believes the client is making the wrong decision based on lack of understanding, what steps does a lawyer have to take to overcome that lack of understanding?”
Once reviewed, the parties are set to reconvene for another hearing on Aug. 22.
