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Words from grave wanted as evidence

Victim testified before her killing

- The Washington Times - Monday, September 5, 2011

Crystal Washington was fatally shot more than two years ago, but her words still could loom large in an upcoming federal conspiracy trial.

The U.S. Attorney's Office wants to use Washington's out-of-court statements to help put the men charged with killing her in prison.

Authorities say she was killed so she wouldn't testify in a drug trial scheduled in D.C. Superior Court just three days after she was shot. Weeks after the killing, prosecutors dropped the Superior Court case against Mark Pray, the alleged leader of a violent drug ring based in the Barry Farms neighborhood of Southeast Washington.

But after Washington's death, the FBI began to investigate and Mr. Pray was charged in a superseding indictment and arrested in 2010. He is one of several men now in the D.C. Jail awaiting trial in federal court on murder, conspiracy and drug charges.

In a recent motion, prosecutors asked U.S. District Judge Rosemary M. Collyer to allow them to introduce out-of-court statements by "the murdered witness," arguing that her words are admissible because the evidence would show that Mr. Pray and Alonzo Marlow "procured the unavailability of Crystal Washington."

The upcoming trial, slated to begin sometime in January, is expected to last about four months, making it one of the bigger federal drug conspiracy cases in Washington in the past decade. Federal prosecutors were considering seeking the death penalty against Mr. Pray, 30, Mr. Marlow, 31, and Kenneth Benbow, 31, but they said in court in June that the Justice Department - after months of deliberations - decided not to seek capital punishment if the men were convicted.

Defense attorneys don't want Washington's words used in the trial. They said that allowing her "hearsay statements" would violate the defendents' Sixth Amendment right to cross-examine witnesses testifying against them.

The defense motion cited a 2008 Supreme Court decision in which the court said, "The Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had an opportunity to cross-examine him."

Washington, 44, was never cross-examined about her statements, but prosecutors say the Supreme Court also has argued that a defendant's right to confront a witness can be waived by "the defendant's intentional misconduct."

"Thus, courts have found that defendants lost their Sixth Amendment rights, and their corresponding evidentiary rights to exclude hearsay, where their misconduct caused the unavailability of a witness," Assistant U.S. Attorney Anthony Scarpelli argued in a motion.

Among the statements by Washington that prosecutors are seeking to introduce are dozens of pages of testimony she gave before a grand jury and during guilty plea proceedings in 2008, as well notes a prosecutor took after interviewing her.

During Washington's guilty plea hearing in 2008, she admitted helping Mr. Pray and others by allowing them to use her home to cut and package drugs. But there were signs she was leaving the drug life behind her before she was killed April 10, 2009.

At the time of her grand jury testimony in 2008, Washington said she had been clean for a year, and she told a prosecutor that she had gotten a job working nights at a restaurant.

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