Birmingham White, 24, was released from the Jackson County Detention Center July 7, one day after Jackson County Prosecutor Jim Kanatzar dropped the second-degree murder and armed-criminal-action charges against him. White had been accused of killing a man he called his best friend, 31-year-old Dwight Gill. Gill was found dead on a picnic table in Noble Park near 73rd and Indiana on July 28, 2008, surrounded by 9 mm bullet casings, cigarette butts and two empty containers of Colt 45.
Kanatzer's explanation is simple: "The case was dismissed because the evidence changed."
Conversations with several sources with knowledge of the case (all of whose accounts match) reveal that the behind-the-scenes story of the dismissal is more complex.
White was arraigned on August 18, 2008, and his trial date was set for August 24, 2009. On June 17, his public defender, Arimeta DuPree, filed a request for discovery, asking that the prosecution share "any conversations, interviews or correspondence with any witnesses, including Latasha Lewis and Antwain Gray, made to law enforcement, the Prosecuting Attorney's Office or any of its employees." Lewis was supposedly White's girlfriend, and Gray was a witness who had been interviewed by police the night of the murder.
In their original statements to police, Lewis and Gray said that on the night of Gill's slaying, White entered Gray's apartment around 11:30 p.m., out of breath and sweating, a 9 mm gun in his hand, and said, "I just shot a motherfucker."
When he was arrested on July 29, 2008, White told police that he was with Lewis and Gray from 8 p.m. on July 27 until the following morning. But he also told police that at 9 p.m. on July 27 he'd been at his grandmother's house at 2951 Victor. White said Gill, who lived just a few blocks away, had walked over and the two had smoked PCP. Gill left 15 minutes later, White told detectives. White pleaded not guilty in Gill's murder.
Jackson County prosecutor Jalilah Otto asked Judge Justine Del Muro to file an order
that would keep Lewis' address from appearing on the witness sheet, which typically contains such information. In her motion, Otto wrote that Lewis was afraid of White and had moved in order to protect herself and her children.
On May 21, DuPree filed a motion asking that the prosecutors turn over Lewis' address because nothing in any of her statements to police had indicated she was afraid of White. But Del Muro granted the protective order on May 26, saying there were ways in which prosecutors could make Lewis available for the defense without revealing her address.
DuPree asked her client if he knew why Lewis would be afraid of him. White said she couldn't be, and backed up his story by mailing DuPree the birthday card he'd just received in jail from Lewis (his birthday is May 23). Lewis had included her address in the card, casting doubt on the prosecutor's claim that she was afraid of White.
With the trial date approaching, DuPree went to the prosecutor's office
and opened its file on White, even though everything it contained
should already have been in DuPree's possession. Since the U.S. Supreme Court's 1963 ruling in Brady v. Maryland (which resulted in the Brady rule), prosecutors have been compelled to share all of their
evidence and information with the defense, regardless of whether it is
favorable to the defendant (or exculpatory).
also impose a local rule that says prosecutors
must turn over anything that is discoverable within seven days of its
addition to the case file.
But in the file, DuPree found three
pages of notes that had never been turned over by the prosecution. One small, handwritten note
read: "Birmingham is not the one who killed Dallas." (Gill, the victim,
also went by "Dallas.")
DuPree called Lewis. Over the phone, sources say, Lewis told DuPree that she had been telling prosecutors for more than three months that White wasn't the shooter. If it's true, the prosecutors were bound to disclose
Lewis' new version of events to DuPree within a week of Lewis' first
mention of it.
Lewis also said that the prosecutors had told her not to talk to DuPree, according to sources.
In a July 2 hearing in Del Muro's courtroom, Leon Munday, who is second in command at the Jackson County Public Defenders Office, outlined the
defense's claims of potential prosecutory misconduct in White's case. During the hearing, DuPree took the stand to testify regarding the items that weren't disclosed to her by Otto. At this hearing, sources say, Otto handed over 41 CDs that she said she'd forgotten to let the defense know about. The CDs contained recorded coversations between Lewis and Gray. Gray, who had been one of the initial witnesses at the time of Gill's shooting, had been arrested by Grandview police three months after Gill's death on an unrelated robbery charge and was in jail awaiting trial. His jailhouse conversations with Lewis had been recorded and sources close to the case believe that in the recordings, Gray tells Lewis that it was he, not White, who had killed Gill.
Del Muro took the allegations "under advisement" and scheduled another hearing for July 6. That day, Otto filed a motion to dismiss the case against White, checking a box on a form to indicate "Current evidence not sufficient to prove guilty." (The word "current" is meaningful. Prosecutors can refile the case against White anytime if other evidence surfaces. There is no statute of limitations on murder.)
Kanatzar tells The Pitch that it isn't uncommon for a witness to change his or her story. "Sometimes evidence changes and we can't go forward with a case, and that's what happened with this case," he says. "I couldn't ethically go forward with a case I thought was not submissable."
Kanatzar adds that conflicts over discovery issues are routine: "It's very important to get disputes taken care of before trial to prevent any surprises at trial or after trial." Post-conviction, allegations of discovery violations become a much bigger deal, he says. "So it's not unusual to have status conferences pertaining to discovery. We want to get those issues resolved before trial so as to not have problems later." Kanatzar wouldn't speak to any of the specific details in this case.
On June 22, prosecutors charged Gray with Gill's murder.
Kanatzar says nothing out of the ordinary happened in the White case, but the discovery issues have a familiar ring for John Picerno, a Kansas City criminal defense attorney. Picerno's client Matthew Davis was sentenced in 2005 to 22 years in prison for drug offenses and for abandoning the body of his girlfriend, Amber McGathey, who had died of a drug overdose. An appeal unearthed major discovery violations by the Jackson County Prosecutor's Office, resulting in a judge throwing out Davis' guilty plea in February. Davis is out of prison now, awaiting a new trial.
Picerno points out that, in White's case, Kanatzer's office filed for dismissal when a witness changed her story, but "not until the public defender found out about it on her own, and not until after a full-blown hearing in front of Judge Del Muro."
DuPree and Munday wouldn't return calls from The Pitch, but Picerno says the details gathered for this story match what he has heard directly from numerous attorneys with knowledge of the case. "It's really discouraging that everyone who's involved [on the defense side] won't speak to the media about the alleged misconduct. It's also very disappointing that the prosecutors aren't disclosing these issues of misconduct."
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Jim Kanatzar has no problem dismissing cases that have to do with black on black crime.
He makes a deal with the defense attorneys especially Pat Peters and doesn't care about the familys in mourning. It's all about him and Pat Peters. I hope that when he comes up for re-election that Black people will rise up and make another selection.
Why is this news again?? Hmmm another story about a PCP smoker who shoots someone and how he got the shaft by the KCMO legal system. **Yawn**
Why is it that the Pitch always tries to paint drug using, gun toting criminals as the victim and tries to make police, prosecutors, or anyone else whose task it is to keep our city safe look like the bad guy?? Seems like we have our priorities mixed up a bit...
Let's remember something: at the end of the day, criminals are bad, people who put them away are good (mostly), and sensationalized journalism is a waste of time.
The real story should be about how many people have gone to jail because of incompetent public defenders. Now that's an article I'd consider news worthy!
Keep up the good work Nadia, that's why you write for the Pitch!
It appears that Ms. Pflaum is not only a capable reporter, but that she has a gift for satire as well.
Actually, The Truth, most of the information in this story comes from the case file itself, which I was granted permission to view.
I spoke directly with the prosecutor. I'm comfortable with using Picerno as a source. It doesn't sound like you're offering anything in the way of new information to counter what I've relied on to write this piece, but if you can, I'm all ears. Til then I think a handle change is in order.
This is one of the poorest stories ever written. Barely any facts; most of it is 2nd and 3rd hand information. Is it uncommon for a defendant to claim their innocence. Is it smart to quote him on what a witness for the opposing side says. We'd prefer to hear from the witness himself. And the part with Picerno is even worse. "but Picerno says the details gathered for this story match what he has heard directly from numerous attorneys with knowledge of the case." Did he speak DIRECTLY with the prosecutor? Did he speak with the defense attorneys? Hmmm....I think NOT!
These types of stories are all to common for Kanatzer and his office. Ms. Otto should be ashamed of herself. Did her parents not tell her honesty if the best policy? I am sure she gives a rip about the man that sat in a jail cell because of her her lies (oh I'm sorry, forgetfulness). It is about time that the Jackson County Prosecutors Office stop their deceitful tactics. Don't they remember why they wanted to be prosecutor's in the first place?? It is about putting guilty people behind bars! They don't care.
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