A previously undisclosed police report, dubbed the Terman report by attorneys, could derail the murder trial of two men suspected of fatally shooting Tracy Lamont Crews in 2008.
One defense attorney called the 17-page report, which provides a new window into police’s response to the Sept. 12, 2008 slaying of Crews inside his Whittaker Avenue home, “devastating” to his client, according to a transcript obtained by The Trentonian.
Edward Hesketh, the attorney for Nigel Joseph Dawson, accused Gary Britton, Trenton police’s lead detective in the homicide case, of misconduct – an accusation a judge quickly quashed.
“The more troubling aspect of this is that the lead detective in this case, Detective Britton, had in is possession, preparing for trial, these first 17 [pages of] reports,” Hesketh said
The revelation comes days after Superior Court Judge Andrew Smithson dismissed the jury early in the trial of Dawson, 31, who is being tried alongside co-defendant William Brown, 30, for the murder of Crews.
Crews was shot twice with a 9 mm handgun in his kitchen shortly after he tucked his then-2-year-old daughter into bed. Assistant Prosecutor Al Garcia has said Crews was betrayed by Brown, a close friend, former roommate and the best man at his wedding.
Hesketh’s remarks about the Terman report came during a Thursday sidebar that took place outside of the jury’s presence, leading Superior Court Judge Andrew Smithson to wonder if anything could be done to “cure any of the prejudice” or whether the high-profile murder case is headed for a mistrial.
It’s unclear if the defense plans to ask for a mistrial. Garcia didn’t return a phone call requesting comment. A judge is expected to take up the issue at a hearing Monday.
Smithson implored attorneys to gauge the relevance of the report and determine if it is vital to their defense.
“You have work to do and please give it your most critical thinking,” Smithson said. “I need to know what real prejudice may fall or what would have been done differently.”
Legal experts said the defense would likely only ask for a mistrial if they were certain a judge would grant it with prejudice, meaning it could not be retried. The chance that the defense asks for a mistrial seems remote considering Brown and Dawson have spent more than three and a half years in county jails while awaiting trial.
While the Terman report, which was compiled less than a month after Crews was murdered, does not appear to be a smoking gun for the defense, Garcia called the report “very significant” and said he was previously unaware it existed.
Reading over the report, Garcia said he didn’t find anything that contradicted evidence that has come out during testimony. Nonetheless, he immediately turned over the report to the defense and was credited by the judge for acting ethically and responsibly.
Defense attorneys said it appears the report contradicts testimony of police officers who responded to the murder scene and fanned out in search of two suspects. It also reveals that police dogs were brought to the scene to try to pick up the suspects’ scent.
Steven Lember, Brown’s attorney, has maintained his client would not have “lifted a finger against Tracy Crews.” He said the report shows police were “going in different directions” and gave an initial description of two suspects that doesn’t match his client.
“There are so many inconsistencies,” Lember said, according to the transcript.
Hesketh called the report the “missing piece,” adding it would have been the basis for him to file a motion on behalf of his client asking for counts of robbery and felony murder to be dismissed.
Hesketh also said the report would have prompted him to give a stronger opening statement.
“I was very cautious of exactly what type of testimony was going to come [in] because there was very little police reports to go by,” Hesketh said. “Now that I’m seeing these reports I believe that it’s devastating to my client.”
The report was discovered this week by Detective Michael Terman on the hard drive of an old computer at Trenton police headquarters.
Smithson said he imagined the defense contends the disclosure is “much too little too late.”
“I think that’s what you would say,” he told defense attorneys. “But still. I don’t know that Mr. Garcia kept anything back. He was very open about where he found it and so forth.”
The report led Smithson to hold several closed-door sessions with attorneys inside his chambers after he dismissed the jury for the rest of the week.
The attorneys spent part of two days locked in discussions with the judge about the report, emerging Thursday to address the issues on record.
But Smithson convened a sidebar to avoid having the so-called Terman report discussed openly, in front of a reporter.
During sidebar, Smithson instructed attorneys to “keep your voice down a little.”
This is the latest delay in a trial hamstrung by witness and evidence problems. Last month, Garcia asked for a two-month delay in the trial because a police officer he planned to call as a witness was on stress leave and unable to testify.
Garcia withdrew the request after it became apparent Smithson was opposed to a delay. The latest evidence hitch rankled Lember, who looked “pained” during sidebar, according to the judge.
“He was pretty mad,” Hesketh told the judge. “I’ve never seen him like that.”
Lember stormed out of the courtroom Thursday shortly after court adjourned. He and Hesketh could be overheard arguing with court staff inside the courtroom.