The prosecutor, Al Garcia, said it best when he surmised Wednesday that attorneys involved in the Tracy Crews murder trial are in “uncharted territory.”
Garcia is in the peculiar position of working with the defense to possibly help clear its clients, William Brown and Nigel Joseph Dawson.
The thought of a prosecutor taking such measures is jaw-dropping. But that’s the position Garcia is in because of discovery issues that threaten to derail the murder trial.
To avoid a possible mistrial, Garcia plans to accommodate the defense’s eleventh-hour request to interview Maria Cappelli, an inmate at the women’s prison in Muncy, Penn.
Defense attorneys said because certain reports were turned over to the defense late, they were never aware that the woman implicated Crews’ wife, Sheena Robinson-Crews, in his murder, nor were they able to travel out of state to meet with her.
They said they should be allowed to interview her during a teleconference to determine whether her story has merit and if she would be willing to testify as a witness.
The suggestion came from Edward Hesketh, Dawson’s attorney, moments after his colleague, Steven Lember, asked a judge to dismiss the charges against Brown based on a “wholesale failure” by the state to turn over evidence.
Lember said discovery issues that delayed the trial amounted to a “trial by ambush.”
Last week, the state turned over a previously undisclosed police report and a two-page report from a Pennsylvania corrections officer based on a statement Cappelli made in which she claimed Robinson-Crews admitted to setting up his murder because her husband was physically and emotionally abusive.
Lember said the state’s late disclosure of the reports was tantamount to “forgetting about the party and never showing up for the party and trying to apologize after the fact.”
Lember specifically avoided criticizing Garcia, saying he was convinced the prosecutor acted responsibly by turning over the reports once he was aware of them.
But Lember couldn’t say the same for the actions of Gary Britton, the lead detective in the case. The reports were found in Britton’s case file and only after what Lember called a “midnight search.”
“He kept it from the prosecutor,” he said. “He kept it from the defense.”
Lember asked the judge, Andrew Smithson, to be the “conscience of the system” and dismiss the charges with double jeopardy protection, meaning the state cannot seek a second trial.
“We don’t want to give the state a second bite of the apple they don’t deserve,” Lember said.
Garcia said the defense was essentially “asking for a mistrial without asking for a mistrial.”
But Smithson cut the prosecutor off before he could argue against the defense’s request, saying he is trying to fashion a remedy that would allow the trial to go forward.
At the same time, Smithson said he would hold off on issuing a ruling on the dismissal until it is determined if the defense’s request is possible.