- The Washington Times - Thursday, June 5, 2014

Acting as his own lawyer from a federal prison cell, a D.C. man convicted of two murders has won a significant legal battle against the Justice Department, forcing federal prosecutors to acknowledge or deny the existence of taped conversations that the prisoner believes will exonerate him.

The ruling in federal court in the District rejected Justice Department arguments that an informant had a right to privacy that would allow prosecutors to neither confirm nor deny the records existed.

“It’s a triumph for the prisoner,” said Stephen Saltzburg, law professor at George Washington University.

The prisoner, David Wilson, was convicted in federal court in the District in 2007 of aiding and abetting in a double murder in August 1998. The killings happened amid a violent drug war between rival gangs in Southeast, the Congress Park Crew and the 1-5 Mob, according to prosecutors.

Prosecutors said Wilson acted as the driver in the drive-by killing of Ronnie Middleton, an 1-5 Mob member, and Sabrina Bradley, who was in the car with him when one of Wilson’s two associates, Antonio Roberson, opened fire.

Years after his conviction, Wilson’s legal team filed a motion for another trial, citing new evidence from a D.C. Jail inmate, who said in an affidavit that he — not Wilson — acted as the driver.

But a judge rejected the motion.

In his open records request, Wilson sought a copy of a recording between Roberson and an informant he believed to be Bobby Capies. Wilson believed Roberson on the tape named his accomplices and that he was not among them. But the Justice Department refused to confirm or deny whether such a record even existed, citing privacy concerns about Roberson and the confidential source, whom officials would not identify.

But U.S. District Court Judge James E. Boasberg disagreed. In a ruling, he cited a 2011 article by The Washington Times that reported Roberson has since died, along with Wilson’s other purported associate on the night of the shooting, Antoine Draine. The federal Privacy Act doesn’t apply to the dead.

The judge also said the Justice Department had already disclosed the fact that Mr. Capies was an informant in the case. And the existence of the tape sought by Wilson wasn’t a matter of speculation, the judge added in his May 21 ruling.

Among the thousands of pages of trial records was a 1999 police interview with Mr. Capies, in which he said he talked with Roberson and his other associate, the ruling pointed out.

“Plainly, the answer here is yes, the records exist,” Judge Boasberg wrote.

“DOJ must — at a minimum — confirm or deny whether the record Wilson is seeking exists,” he wrote. “If it does, DOJ must either turn it over or explain the reasoning behind its withholding.”

In his open records lawsuit, Wilson said prosecutors “improperly withheld exculpatory evidence” from the defense that would have showed he played no role in the murders.

He also argued that Mr. Capies was wearing an undercover wire and had talked with Roberson, but the conversation was never disclosed to the defense.

The U.S. Attorney’s Office did not respond to requests for comment Thursday, but Judge Boasberg gave prosecutors until June 16 to tell him whether they plan to turn over the records.

Mr. Salzberg said while the ruling marked a significant legal victory for Wilson, it doesn’t mean he’ll get the records he’s seeking. He said the Justice Department also can refuse to turn over records on the basis that doing so could interfere with a law enforcement proceeding.

While Wilson’s trial ended in 2007, prosecutors could seek to apply that exemption to the open records law in withholding records, he said.

“The government almost always responds to request whether they’re filed by a defense lawyer or somebody who’s been convicted by citing the law enforcement exemption,” he said. “I predict that’s next.”

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