A new layer of secrecy enveloped the Chandra Levy murder mystery Monday, underscoring the crucial questions now confronting the court:
Who is the prosecution witness whose credibility is now in question?
Could the potential credibility problem undermine the November 2010 conviction of accused killer Ingmar Guandique?
And did prosecutors meet their obligations to share information with defense attorneys, who say the Salvadoran immigrant did not kill Levy on May 1, 2001, shortly before she was to return to her Modesto, Calif., home?
In the latest plot twist to be sealed from public view, attorneys for both sides on Monday convinced an appeals court to hold off while a trial judge sorts out key questions that could include whether Guandique gets a new trial based on new evidence. Though the District of Columbia Court of Appeals’ one-page decision staying Guandique’s pending appeal on other grounds was made public, the joint motion filed by defense attorneys and prosecutors was not.
But prosecutors and defense attorneys differ over secrecy. Prosecutors insist that it would be dangerous to make public the information that has arisen concerning one of their witnesses.
“The possible disclosure of that information may create safety issues,” D.C. Superior Court Judge Gerald I. Fisher declared at a Dec. 18 hearing.
So far, over the stated objection of a McClatchy reporter, Fisher has overseen two sealed hearings and has suggested that a planned Feb. 7 hearing could be sealed as well. Citing the persistent secrecy, media organizations including McClatchy, Gannett and The Washington Post have joined in retaining attorneys with the WilmerHale law firm in hopes of opening up the proceedings.
Citing unnamed officials, The Post has reported that Guandique’s defense attorneys have formally requested a new trial.
“Mr. Guandique has repeatedly objected to Judge Fisher’s orders closing these proceedings as overly broad and legally unfounded,” Julia Leighton, general counsel for the D.C. Public Defenders Service, said in a statement Monday. “In light of the protective order currently in place, however, we cannot disclose whether specific pleadings may have been subsequently filed under seal.”
The seal covers several key questions. Some involve the identity of the witness.
Though the potential credibility issues could theoretically implicate any of the prosecution witnesses, the only one whose testimony was crucial was a former Fresno, Calif., gang member, Armando Morales. Morales, sentenced to a 23-year term in 1997 on drugs and weapons charges, testified that Guandique confessed to him while they were in prison together.
In a trial with no eyewitnesses or DNA evidence, the Morales testimony made all the difference, despite questions about his credibility.
“You’ve been pretty much locked up most of your life, right?” defense attorney Santha Sonenberg asked Morales during cross-examination.
“Yes,” Morales replied.
Other pivotal questions include whether prosecutors properly notified defense attorneys.
They are obliged to share information with the defense that might be favorable to the accused. Failure to do so can be deemed a Brady violation, named for the 1963 Supreme Court case from which the legal rule first arose. Timing of disclosures can become crucial.
For instance, the chief prosecutor in the Guandique case, Assistant U.S. Attorney Amanda Haines, in 2005 helped win a conviction on double-murder charges of a man named Thomas Zanders. Zanders subsequently appealed, alleging, among other things, that prosecutors had suppressed evidence that might have helped his defense.
In a July 2010 decision, the D.C. Court of Appeals agreed that prosecutors had made “incomplete and late disclosure” of some evidence but concluded the problem wasn’t enough to reverse the trial court decision.
“Any doubts should be resolved in favor of full disclosure made well before the scheduled trial date, unless there is good reason to do otherwise,” the appeals court cautioned.
A spokesman for the U.S. Attorney’s Office declined to comment.