Prosecutor's cases to be reviewed after mistrial declared in Hammond case
LOUISVILLE, Ky. (WDRB) -- Commonwealth's Attorney Tom Wine said his office will look at all pending criminal cases that were assigned to former prosecutor Tom Van De Rostyne to determine if there was any evidence not turned over to defense attorneys.
"We are going to make sure there are no other time bombs out there," Wine said in an interview Tuesday after a Jefferson Circuit Court judge declared a mistrial in a case Van De Rostyne had once handled.
Judge Angela McCormick Bisig declared a mistrial in the murder trial of Dejuan Hammond, a day after Hammond's defense team complained of "prosecutorial misconduct," saying investigators have for five years had a summary of an interview with Hammond's former girlfriend that they had failed to turn over.
Defense attorneys accused Van De Rostyne of not only not turning over the evidence, but of purposefully hiding it and keeping it from attorneys because it contained exculpatory information.
"Somebody needs to get to the bottom of this," said Ted Shouse, an attorney for Hammond.
"We've said all along that the Commonwealth manufactured evidence of Dejuan's guilt and hid evidence of his innocence -- and that's what's been proven here today," Shouse added.
And the current prosecutors on the case acknowledged it appeared the evidence - a summary of an interview with Hammond's former girlfriend - had been tampered with and withheld inappropriately.
"It's one of the more disappointing experiences, to be honest with you, that I've had in the nearly 30 years I've been prosecuting here in this community," said Jim Lesousky, assistant commonwealth attorney.
Wine fired Van De Rostyne after he was elected in 2012. Van De Rostyne had run against Wine and lost in the primary.
Now, Wine said his prosecutors will look at every case still pending that Van De Rostyne handled or screened and make sure the evidence given to them by police in the case was also turned over to the defense.
Van De Rostyne, now with the Attorney General's office, declined to comment.
Leland Hulbert, a spokesman for the Commonwealth Attorney's Office, said the office talked with Van De Rostyne and "at this point he just doesn't remember" how this happened, noting there were hundreds of pages in the file.
"It was never the intention of any prosecutor involved in this case to hide this paperwork from defense counsel for any sort of strategic purposes," Hulbert said at a press conference.
He said there were "100 different reasons" this information may have inadvertently not been turned over, including that there was discussion of sealing information because of the safety of witnesses.
On Monday, prosecutors acknowledged the report of an interview with Princess Bolin was mistakenly not turned over - a realization they discovered in recent days as Bolin finished testifying in the case - but suggested it was inadvertent and there were other remedies besides a mistrial.
At the time, Judge Bisig denied a motion for a mistrial but gave the defense the day to investigate the interview summary and allowing them to question both Bolin and the lead investigator about it.
On Tuesday morning, Hammond's defense team renewed their objections to the trial.
"It looks like this was a deliberate attempt to conceal this evidence," said O'Connell. "This trial is fundamentally unfair."
O'Connell added that she was "offended they are not making a motion to dismiss this case right now."
Lesousky repeatedly said he took responsibility for failing to turn the evidence over, calling it "indefensible," and saying it was one of his worst days as a prosecutor.
Bisig seemed most troubled by the fact that the interview with Bolin included a possible alibi for Hammond. Bolin told police in 2009 that she and Hammond were at the mall when Troya Sheckles was shot to death in Shelby Park, according to the summary.
Other interviews in which Bolin pointed the finger at Hammond were turned over to the defense.
Shouse and defense attorney Annie O'Connell said their questioning of Bolin and entire defense likely would have been different if that interview had been properly given to attorneys.
When Bisig asked how it would be different, they talked with her at the bench. After a break, Bisig came back and ordered the mistrial. The next court date is set for June.
Lesousky told Bisig and reporters he was unsure why the report wasn't turned over sooner. He said he talked with Van De Rostyne, the initial prosecutor on the case, who also didn't know why the evidence was withheld.
"It doesn't matter if it was intentional or unintentional," Lesousky said. "I accept responsibility."
Shouse told Bisig the information was withheld on purpose and pointed out that the evidence right before and after the interview were given to the defense but there is a blank spot where the Bolin interview should be.
"This is a really sad day," Shouse said later. "The court system is not supposed to operate like this. This is embarrassing that our police department and our prosecutor's office are run this way."
From the beginning, Shouse said, prosecutors and police have "manufactured evidence of guilt" against Hammond and "hid evidence of his innocence."
The defense will ask in June that the case be dismissed because of the prohibition against double jeopardy, or trying a defendant twice for the same crime.
Also, Shouse said it is possible that the defense will call Van De Rostyne in to testify on what happened.
"We have a duty to defend our client and find out what happened," he told reporters.
Shouse also questioned how this might effect the conviction of Hammond's co-defendant, Steven Pettway.
Pettway, Shouse told Bisig, was convicted of murder and sentenced to 55 years in prison last year without the benefit of having this evidence.
Leslie Smith, an attorney who represented Pettway during his murder trial, said she had contacted his appellate attorney and "we are exploring potential avenues for relief for him in this case."
Hulbert would not discuss the Pettway case in detail, saying only that there was "no way to tell what he might do now."
He pointed out, however, that both Hammond and Pettway are still incarcerated. Hammond is facing unrelated charges.
Hammond's murder case was dismissed in October because prosecutors couldn't find two witnesses, but he was re-indicted in January.
Prosecutors have said Pettway was acting at the behest of Dejuan Hammond, because Sheckles had agreed weeks earlier to testify against Lloyd in the 2006 murder of her boyfriend and two other men.
Bolin testified in May at the Pettway trial that Hammond sent her into Shelby Park to look for a woman and report back to him shortly before Sheckles was killed.
It is unclear how long it will take to bring the murder case back to trial, though Hulbert said he hopes it is quick.
"This is a setback that was not anticipated," he said. "It's very disappointing to our office. ...Unfortunately for the victims families, this is another delay."
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