Levy prosecutors sat on key information, defense claims

McClatchy NewspapersFebruary 19, 2013 

— The case against the man convicted of killing former intern Chandra Levy is “drastically undercut” by information that prosecutors kept to themselves “for the better part of a year,” according to defense attorneys, who now say they will seek a new trial.

In heavily redacted legal briefs and transcripts made public Tuesday, defense attorneys quote prosecutors as acknowledging they had come upon “significant impeaching information” that potentially undermines the credibility of a prosecution witness. But though prosecutors received the information in about February 2012, the trial judge wasn’t informed until November.

“We think we’re being jerked around,” defense attorney James Klein said, according to a previously sealed transcript of a Dec. 18 court hearing.

But a few weeks later, a newly public account of a Jan. 4 hearing revealed that Justice Department attorney Alessio Evangelista countered: “We were trying to carefully and thoughtfully decide what needed to be done with this information. It did take, you know, several months.”

The ensuing legal fight has spurred renewed questions about the strength of the case against Ingmar Guandique, a 31-year-old Salvadoran immigrant whose felony murder conviction in November 2010 seemingly put to rest one of the nation’s highest-profile murder mysteries. Prosecutors convinced jurors that Guandique killed Levy on May 1, 2001, in Washington’s Rock Creek Park, shortly before Levy was to return to her family’s Modesto, Calif., home.

The new twists also have revived questions about the public’s right of access to trial proceedings, as well as precisely what the government knew and when it knew it.

The newly public documents show that Klein, chief of the appellate division of the Public Defender Service for the District of Columbia, charged at the previously sealed December hearing that the government’s alleged failures to investigate potential witness problems were either “intentional” or sheer “ineptitude.”

In either case, Klein alleged that the government may have violated the legal rule that bars prosecutors from knowingly presenting false testimony and obligates them to correct it when it occurs.

“We will be filing a motion to dismiss the indictment and requesting a new trial,” defense attorney Jon Anderson stated at the previously sealed January hearing, the newly released transcript shows.

But prosecutors warned that premature release of witness information could prove dangerous.

“We have very credible and specific safety issues,” Justice Department attorney David Gorman cautioned the trial judge in the January hearing, the transcript shows.

The trial judge, D.C. Superior Court Judge Gerald I. Fisher, suggested in several asides that he had at least some sympathy for the government’s position, telling Klein that “you jumped the gun in the conclusions that you’ve reached about either the (government’s) motivation or the competency in acquiring the information.” Fisher further suggested that prosecutors may have shared the information once it was fully developed.

The lynchpin of the prosecution’s case against Guandique was former Fresno Bulldogs gang member Armando Morales, who testified that Guandique confessed to him while they were prison cellmates in Kentucky. Morales further testified that he had left the gang life behind, as he awaited his scheduled release from prison in 2016.

Guandique, who shared a cell with Morales for about six weeks while serving time on unrelated charges, did not testify in his own defense but maintained his innocence throughout.

In a redacted legal brief made public Tuesday, Justice Department attorneys say that “approximately one year” after Guandique’s February 2011 sentencing, they received information concerning a prosecution witness. The nature of this information and the identity of the prosecution witness remain secret, although there is a suggestion in the documents released Tuesday that the information came in written “documents.”

Justice Department attorneys further argued that “disclosure of this new information creates a serious risk of harm to the witness” who has now come forward.

“The dangerous situation confronting this witness . . . is precisely the type of ‘overriding interest’ that merits shielding the proceeding from public view,” Justice Department attorneys wrote.

Media organizations, including McClatchy, the Washington Post and the Associated Press, went to court in an effort to make proceedings public.

Defense attorneys likewise have wanted the proceedings to be public, arguing that the new information might help elicit more information from other witnesses. At an extended bench hearing last week, attorneys hammered out details about the discovery procedures that are supposed to uncover exactly what happened. Attorneys are set to meet again in April, when further information may be made public.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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