New prosecutor assigned to murder case

New prosecutor assigned to murder case

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A city prosecutor has stepped aside in a trans-related murder case due to issues stemming from alleged exculpatory evidence that was withheld from the defense, it was announced last week.

Chesley Lightsey replaces Danielle Burkavage as prosecutor in the case of Matthew J. White, who allegedly murdered a trans woman’s boyfriend last year. The new assignment was announced during an Aug. 3 court proceeding, two days after White’s jury trial was halted due to alleged evidence mishandling.

A spokesperson for the Philadelphia District Attorney’s Office said the office stands behind Burkavage and that she did nothing wrong.

“The Philadelphia Police Department made an administrative error and failed to turn over photo arrays and related notes,” said the D.A.’s Ben Waxman. “Ms. Burkavage discovered the mistake and properly notified defense counsel and turned the information over. In response, defense counsel filed a motion alleging prosecutorial misconduct.”

Burkavage stepped aside from the case because she cannot be a prosecutor and a witness at the same time, Waxman said.

White is accused of murdering Barry Jones in the city’s Carroll Park section on Jan. 9, 2017. A day before Jones’ murder, White allegedly burglarized the nearby residence of three trans women.

White’s trial was scheduled to begin Aug. 1. Fifteen jurors, including three alternates, were selected on July 31. But later that evening, Burkavage emailed evidence relating to the case to defense attorney Eileen J. Hurley.

Before jurors could be sworn in and opening arguments delivered the next morning, Hurley told Common Pleas Court Judge J. Scott O’Keefe the newly released evidence has the potential of clearing her client.

O’Keefe promptly halted the trial and ordered the permanent removal of jurors. Later in the day, O’Keefe transferred the case to Common Pleas Judge Barbara A. McDermott, who held a two-hour hearing about the evidence dispute on Aug. 3.

According to court testimony, White was arrested by Philadelphia police on Jan. 15, 2017, after a trans woman who witnessed the burglary spotted his photo on Facebook. A total of five witnesses subsequently identified White as the person who either burglarized the trans women or killed Jones.

But Hurley told McDermott that the most recent evidence raises the possibility that a person named Michael Attaway — not her client — is the killer. Attaway wasn’t in the courtroom and couldn’t be reached for comment.

Hurley said police and prosecutors improperly withheld evidence indicating that multiple witnesses saw a tattoo under the left eye of the offender. She noted that White doesn’t have a tattoo or any type of notable features under his left eye.

Homicide Det. William Kelhower Jr. testified that on Jan. 12, 2017, he detained Attaway for questioning because he appeared to meet the description of a witness. An array of headshots that included Attaway’s picture was shown to witnesses of the burglary, but they didn’t identify Attaway as the culprit.

Kelhower said he didn’t document the photo lineup in his “activity sheets” because Attaway ultimately was cleared. Kelhower also said Vivian Royster — who was Jones’ girlfriend and witnessed his murder — wasn’t shown the photos because the burglary witnesses cleared Attaway.

Homicide Det. Joseph Murray testified that he conducted the photo array at the residence of the three burglary witnesses. He  said documentation of the photo lineup “ended up in my file cabinet” rather than being shared with prosecutors. “I forgot I had it,” Murray testified.

McDermott urged Murray to handle evidence relating to a homicide investigation in a more appropriate manner. “You better go through all of your files,” the judge told the detective.

Hurley told McDermott she didn’t learn about the photo lineup until July 31, when Burkavage emailed her copies of the photos shown to the burglary witnesses. Hurley expressed concern about the manner in which Murray conducted the photo lineup and told the judge she’d elaborate on those concerns at a later date.

Hurley also brought up the contents of a notebook used by Kelhower, which indicate that multiple witnesses saw a tattoo on the offender’s face. Hurley said she wasn’t informed about Kelhower’s notebook until Aug. 2.

Additionally, Hurley complained about not learning until July 31 that a witness spotted the burglar in the area of 52nd Street and Girard Avenue on Jan. 12, 2017 — four days after the burglary. The witness’ spotting of the burglar prompted the photo lineup conducted by Murray, Hurley said.

At this late date, Hurley said, it’s difficult to establish White’s whereabouts on Jan. 12, 2017. If she could prove he was somewhere else that day, it would help clear his name, she added.

Burkavage took the witness stand and acknowledged that Kelhower’s notebook was in a police homicide file that she had access to. She said she didn’t look through the notebook, partly because she trusted police and they didn’t tell her it contained relevant information. Otherwise, she said, she would have shared its contents with Hurley sooner.

“Based on what happened here, I will be flipping through every single notebook that comes to me,” Burkavage said on the stand.

Hurley emphasized she wasn’t accusing Burkavage of acting in bad faith. But the defense attorney said it’s possible that police acted in bad faith by deliberately withholding exculpatory evidence. She reiterated her plea that all charges against White be dismissed, claiming he now faces challenges in getting a fair trial.

McDermott said she wants to review additional information before ruling on Hurley’s request for dismissal. Hurley said she’ll file a supplemental motion within the next several days. McDermott said the matter will be resumed at 9 a.m. Aug. 23 in Room 507 of the Criminal Justice Center, 1315 Filbert St.

Meanwhile, White remains incarcerated at the Curran-Fromhold Correctional Facility in Northeast Philadelphia. However, Hurley said she intends to request his release on bail. She said her client continues to maintain his innocence.

White, 34, is accused of murder, aggravated assault, burglary, reckless endangerment, possessing an instrument of crime and related offenses. He faces life imprisonment if convicted of all charges. 

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