A decade after Gary Gathers and his friend, Keith Mitchell were convicted of shooting Wayne Ballard while he waited at a traffic light in Washington D.C., they were granted a new trial because prosecutors relied on false testimony from police officers.  Gathers and Mitchell were first found guilty in 1994.  The District of Columbia Court of Appeals upheld the convictions 3 years later.  Now, another appeals court with a three-judge panel found that prosecutors repeatedly made use of false testimony from a police officer.

At trial, the prosecution told the jury that the men wanted to kill Ballard, the sole eyewitness, in an effort to prevent him from testifying at Gathers’ brother’s murder trial.  Detective Ray Crawford testified that Ballard’s name was mentioned during a hearing in the brother’s case.  This was in fact false.  Neither Gathers, Mitchell, nor Gathers’ brother knew that Ballard was a cooperating witness.  Ballard’s name was never used in open court, he was identified just as “driver”.  The trial prosecutor cited the officer’s false testimony as proof of murder repeatedly during the trial and then repeated the false information at the first appeal, which the defendant’s lost.

“It is markedly disquieting to think that appellants should stand convicted on what is plainly false evidence highly prejudicial to the outcome where the government knew or should have known of the falsity, however belatedly this falsity may have come to the forefront,” Senior Judge John Steadman wrote.

To make matters worse, both the detective and the prosecutors were assigned to both cases, so  at any given time one or both would have been present at hearings where Ballard’s name was never used.

“The testimony of Detective Crawford was in fact false. The transcript,” Judge Steadman wrote on behalf of the panel, “plainly showed that nobody mentioned Ballard’s name in any way…”

The Mid-Atlantic Innocence Project has been involved in the case since 2010.

Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, said “It just means that even when an office has the best of intentions, even when people have the best of intentions, sometimes people do the wrong thing.  It’s a sign we need procedures in place to make sure that doesn’t continue to happen.”

“Fundamental to the fairness of any criminal prosecution is the government’s adherence to its obligations to correct misstatements by any witness and to avoid any mistakes of fact arguing for conviction,” Judge Steadman wrote.

William Miller of the U.S. Attorney’s Office said that the “misstatements” in court were “unintentional” and that the office is “assessing [its] options going forward.” The U.S. Attorney’s Office has acknowledged the error made by Eric Acker.  Acker left the U.S. Attorney’s Office and entered private practice in San Diego in 1999.  Crawford, the detective, retired in 2012.

Amit Mehta, Seth Rosenthal, and Matthew Beville, their defense attorneys, worked for the last four years with the innocence project arguing the two men are innocent.

“This is extremely good news. Our clients are very pleased, and they continue to maintain their innocence,” Rosenthal said, “Ultimately, we’re looking for exoneration.”

Previous attorneys for Gathers and Mitchell did not find the false evidence and neither did the first appeals court. Despite their admission of mistake, prosecutors argued that the new defense attorneys should not be allowed to bring up the issue because it had not been brought up in previous appeals.  The court rejected the argument, making way for the successful appeal.

FURTHER READING:   D.C. Appeals Court Calls For New Trial in ’93 Murder Case, Citing ‘False Evidence’

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