- The Washington Times - Thursday, July 3, 2014

The Justice Department says it can’t find a tape recording sought by a federal prisoner who says the evidence will exonerate him in a 1998 double murder

The admission comes in response to a federal judge’s order that the Justice Department confirm or deny the tape’s existence — the latest development in a Freedom of Information Act lawsuit filed by federal inmate David Wilson.

Acting as his own lawyer, Wilson sued the Justice Department after officials denied his open records request for a recording of an undercover drug informant’s 1999 conversation about a double murder later tied to Wilson.

The killings happened in summer 1998 amid a violent drug war between rival gangs in Washington known as the 1-5 Mob and the Congress Park Crew, according to prosecutors.

After an eight-month trial in 2007, Wilson was convicted of acting as the driver in the shooting of 1-5 Mob member Ronnie Middleton and his girlfriend, Sabrina Bradley. Prosecutors identified the shooter as Antonio Roberson.

In his records request, Wilson asked the Justice Department to provide a recording of a 1999 conversation between Roberson and an undercover informant named Bobby Capies.

Wilson said other records in his case showed that the tape exists, with documents referring to how Capies wore an undercover wire in summer 1999 while talking with Roberson about the murders.

“I believe the said body recording was exculpatory and should have been disclosed during the criminal proceedings,” Wilson said in his FOIA request.

At first, the Justice Department refused to confirm or deny whether the tape existed, citing, among other reasons, privacy concerns about Roberson and the confidential informant, whom officials would not name as Mr. Capies.

But U.S. District Court Judge James E. Boasberg disagreed. In a ruling, he cited a 2011 article by The Washington Times reporting that both Roberson and Wilson’s other purported associate on the night of the shooting, Antoine Draine, have since died. Privacy protections don’t extend to the dead.

The judge also said the Justice Department already disclosed that Mr. Capies was an informant.

He ordered the Justice Department to confirm or deny whether the tape existed, adding, “Plainly, the answer here is yes, the records exist.”

However, government attorneys responded in a recent motion by saying they’ve looked in case files but can’t find the recording.

A paralegal said in an affidavit that she searched boxes of case records. She found a disc that mentioned Mr. Capies wearing a body recording device and speaking with Roberson. But, she added, she did not find the actual recording or a transcript.

In a letter to The Washington Times, Wilson said the recording and transcript should have been turned over years ago and long before his trial.

“What’s on that tape will help prove my innocence,” he wrote, adding that searching boxes of case records wasn’t sufficient.

“They never searched the Metropolitan Police Department files or anywhere else?” he asked.

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