Defense attorneys seek removal of prosecutors in murder case delayed after public defenders allegedly concealed evidence
James Mallory’s attorneys say the collection of the bullet casings by the public defender's office and not turning them over raise questions of whether a crime has been committed and will likely cause everyone involved to be included as a fact witness in the murder trial, which has been delayed until later this year.
LOUISVILLE, Ky. (WDRB) – Attorneys for a man charged with the 2012 murder of 15-year-old Gregory Holt have asked a judge to remove the Jefferson Commonwealth’s Attorney’s office from the death penalty case, arguing the prosecutors have now become necessary witnesses for the trial.
The request further complicates a case already marked with surprise revelations that lawyers concealed evidence and may have broken the law.
Late last month, as James Mallory was days away from standing trial, prosecutors found out an investigator and attorneys for a co-defendant, and key witness against Mallory, have for six years been in possession of bullet casings possibly linked to the shooting -- without disclosing them.
At the time, the judge said the actions “appalled” her and raised questions about whether a crime may have been committed by the defense team for one of the men allegedly involved in the slaying.
“How is this not tampering with physical evidence?” Jefferson Circuit Court Judge Susan Schultz Gibson asked twice in court on Feb. 23 after learning about the issue. Tampering with evidence is a felony. “I have a tremendous concern about that. … You can’t make this stuff up.”
Now, Mallory’s attorneys, Darren Wolff and Mark Hall, claim that prosecutors have a conflict in interest because of their role as witnesses in the case and as potential investigators of the co-defendant and his attorneys.
The attorneys argue prosecutors will need to testify as to how exactly they learned co-defendant Anthony Hogan and his attorneys came into possession of the bullet casings. In addition, they say, the Commonwealth's Attorney's office has a duty to investigate the defense attorneys and Hogan, who was also charged in the murder of Holt but agreed to testify against Mallory as part of a plea deal.
Attorney Angela Elleman of the Louisville Public Defender’s office, and an investigator working with her, dug up the shell casings buried in a tree stump outside a bar in Louisville just months after the April 11, 2012, murder, according to evidence discussed in a court hearing last month.
Hogan allegedly claims he saw Mallory bury the shell casings after Holt was shot to death in his mother’s apartment near Dixie Highway and East Rockford Lane.
The casings had been in a safe at the Jefferson County Public Defender’s office until Louisville Metro Police recently took them for testing.
The lead prosecutor, Assistant Commonwealth’s Attorney Dorislee Gilbert, will likely be called to testify as to her conversation with Hogan and Elleman, according to the motion.
In an interview Friday, Gilbert declined to comment on the motion, saying she needed more time to review it. Assistant Commonwealth's Attorney Jeff Cooke, a spokesman for the office, said prosecutors would file an objection to the motion arguing "there is no basis in law to disqualify us."
Cooke said prosecutors have "acted appropriately under the circumstances" and are not "material witnesses" in the case.
Wolff and Hall also argue in the motion “that a crime may very well have been committed by Mr. Hogan and/or his attorney(s) in relation to collection and lack of disclosure of shell casings.”
Since the Jefferson Commonwealth’s Attorney’s office would be responsible for investigating that case, it “leads to the logical conclusion that they cannot fairly investigate and prosecute individuals they clearly consider to be their most important allies in the prosecution of James Mallory,” the defense attorneys wrote.
Cooke said if there is at some point an investigation that leads to charges, a special prosecutor could be appointed if a judge decided it was necessary.
Elleman has declined to comment. But Dan Goyette, head of the public defender’s office, has said that "after a careful review of the rather complex legal and evidentiary situation that arose in this case, it’s clear that the actions of Mr. Hogan’s attorneys were directed in the best interests of their client and were consistent with their professional obligations."
Gibson has said in court that she needed to “figure out” why the evidence was never turned over and “what further action needs to be taken.”.
Holt was a student at Farnsley Middle School. Prosecutors have said Holt’s mother, Kendra Wilson, participated in a robbery and attempted execution of Mallory hours earlier, and that Mallory shot the teen while trying to retaliate against Wilson.
Hogan was pulled over in April 2012 in possession of the gun, but he has accused Mallory of firing the shots that killed the teen. He told police the men drove to the apartment, Mallory kicked in the door, planning to attack Wilson, and fired shots into the darkened home, killing the teen.
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