Former prosecutor accused of misconduct has "serious concerns" about testifying in murder trial
Tom Van De Rostyne said he is on vacation during trial and may have ethical problems in testifying. The defense also claims 44 more pages of evidence were withheld.
Monday, July 21st 2014, 3:35 PM EDT
LOUISVILLE, Ky. (WDRB) -- The former Assistant Commonwealth’s Attorney at the heart of misconduct allegations in the high-profile Dejuan Hammond murder case has sent a letter to the trial judge, questioning whether he should be forced to testify and indicating he may have to refuse.
In the letter, written on July 17 and placed in the Hammond file on Monday, Tom Van De Rostyne first tells Judge Angela McCormick Bisig that he will be on a previously planned vacation during the time the defense subpoenaed him to testify, on Sept. 2.
While he agreed to testify either before or after his vacation, Van De Rostyne also said he has “serious concerns” about being forced to testify since he was the original prosecutor in the case and has attorney/client privilege with his former employer, the Commonwealth’s Attorney’s office.
“To date, I have not received a formal notice from my former employer of a waiver of that privilege,” Van De Rostyne wrote, adding that he may be forced to “assert that privilege to avoid a potential breach of my ethical duties.”
Assistant Commonwealth’s Attorney Elizabeth Jones Brown, who inherited the case in 2012, declined to comment on Van De Rostyne’s letter.
Ted Shouse and Annie O'Connell, attorneys for Hammond, have accused Van De Rostyne of misconduct for concealing and withholding evidence from the defense, including a summary of an interview with Hammond's former girlfriend in which she gives Hammond an alibi.
Recently, 24 more pages of evidence were turned over to the defense, also wrongly withheld, Bisig has ruled. The judge has given defense attorneys permission to go through the police investigative file in the case, to make sure nothing else has been withheld, and to allow them to inform jurors about the concealed evidence.
The defense also told Judge Bisig on Monday that it found 44 more pages of evidence in the police file but declined to discuss what was in them. Judge Bisig has set a hearing on the issue next week.
Commonwealth’s Attorney Tom Wine, who fired Van De Rostyne when he took office in 2012, after both ran for the position, has testified that his office had "clearly" concealed some evidence and not turned it over to defense attorneys, though he doesn’t know the reasoning behind the decision.
An internal investigation is ongoing.
the case despite what she has called "wrongful" actions by prosecutors in withholding evidence from the defense, set a hearing for next month to discuss Van De Rostyne’s letter.
The judge has said the prosecution's failure to turn over a summary of an interview with Hammond's former girlfriend was the result of a "mistake, sloppy review, and inadvertence, rather than a calculated attempt to force a mistrial."
Van De Rostyne, who has declined to comment about the Hammond case, has testified previously that he deleted the interview to protect the witness's safety and it was accidentally not turned over to the defense.
In his letter, which was written on stationery from Attorney General Jack Conway's office, where he now works, Van De Rostyne also expressed concern about being a “fact witness” and noted that he is “not aware of the potential subject matter of my proposed testimony.”
Shouse said he would try to accommodate Van De Rostyne’s vacation schedule but is “not in the habit of telling hostile witnesses the questions I intend to ask before” trial. He declined to comment further.
Hammond has been indicted for the murder of Troya Sheckles, who was shot to death during the daytime in Shelby Park in 2009, allegedly to prevent her from testifying against Dejuan Hammond's brother, Lloyd Hammond.
His murder trial in April ended in a mistrial after prosecutors revealed the summary of the Bolin interview - after Bolin had already testified. In that interview, Bolin said Hammond was with her at the mall at the time of the slaying. She later changed her story and testified during the trial that Hammond and co-defendant Steven Pettway were responsible for the murder.
Attorneys for Pettway have asked Bisig for a new trial based on the Bolin interview, which also mentions Pettway.
After being convicted by a jury in May 2013, Steven Pettway was sentenced to 55 years in prison for killing Sheckles to prevent her from testifying in another trial.
In the motion filed recently in Pettway’s case, Assistant Public Defender Jay Lambert claims the n
wly released evidence is “exculpatory” for Pettway and was never provided, “which necessitates Pettway receiving a new trial.”
Judge Bisig on Monday gave prosecutors 60 days to respond to the motion and set a hearing date for Oct. 30.
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