A supervisor from the United States Attorney’s Office stepped in before DC Superior Court Judge Danya Dayson on Oct. 30 to provide support for two prosecutors unsettled by the court’s handling of potentially incriminating evidence against one of their witnesses.
David Pena, 48, is charged with second-degree murder while armed, possession of a firearm during a crime of violence or dangerous offense, assault with a dangerous weapon, and unlawful possession of a firearm by a convict. The charges stem from his alleged involvement in a fatal shooting on June 12, 2023 on the 3000 block of 30th Street, SE. Maurice Robinson, 24, succumbed to his injuries on June 13 at a local hospital.
The hearing took a turn when prosecutors learned that the court had appointed an attorney for one of their witnesses the week prior. Prosecutors informed Judge Dayson that they had since met with the witness without her attorney, unaware that she had one.
“For our legal and ethical obligations we’ve been sandbagged,” a prosecutor said before calling his supervisor.
Judge Dayson told prosecutors that their witness had been appointed a lawyer for reasons not relevant to the upcoming trial, but defense attorney Dana Page’s contention that she had a potentially incriminating Instagram video of the witness that muddled the issue.
In an earlier hearing, Page argued that an arson at Pena’s apartment was a retaliation for Robinson’s death. During the Oct. 30 hearing, Page indicated that the video, if authentic, could potentially tie the witness to the arson.
Page said that prosecutors had months to investigate the matter and that it was not her duty to inform them whether their witnesses were at risk of incriminating themselves.
“It’s not our responsibility to point out the [prosecution’s] Fifth Amendment issues,” Page said. “The [prosecution] has known about this arson since June 15, 2023.”
A supervisor for the prosecutor’s office said that she had never seen this kind of information withheld by defense attorneys and that she would need the video to determine whether the witness needed immunity.
Page argued that prosecutors did not need the video to secure witness immunity and said that the witness’s attorney, Michelle Lockard, should be provided with the video to act as an intermediary as she saw fit.
“If Ms. Lockard comes in and says ‘this is not my client,’ then we can move forward. If Ms. Page is correct then we need to address this,” the supervisor said. Lockard agreed to meet with the witness the next day and try to resolve the issue.
The parties discussed several other motions throughout the hearing. Judge Dayson found that statements Pena made to officers before he was read his rights were voluntary and ruled to admit them. Judge Dayson noted that, according to body-worn camera footage, officers tried for several minutes to read Pena his rights but that he repeatedly interrupted to make statements.
Judge Dayson also overruled prosecutors’ motion to prevent Page and her co-counsel, Gail Engmann, from arguing that Pena acted in self-defense and in defense of his daughter. Judge Dayson said that she might modify her instructions to the jury about self-defense based on the evidence presented during trial but that the existing evidence did not rule out self-defense.
“Someone who is in that situation, the heat of passion, that it may appear differently to them, so I’m going to allow the self-defense and defense of a third,” Dayson said.
Parties are slated to reconvene Nov. 3.
