The question of whether the death penalty is an option for two men accused in a 2010 killing and robbery was unresolved Monday, a week before their monthlong trial was scheduled to start.
Daniel Gadson, 30, and Elzandrae Warren, 29, both face capital murder charges in the death of Daryl Delano Carter, 25, but Fayette Circuit Court Judge Kimberly Bunnell indicated at a status hearing Monday that the death penalty could be removed as a sentencing option because of evidentiary issues that arose last week.
Defense attorneys said at the hearing that a packet of documents provided by prosecutors Friday contains evidence that is exculpatory to Gadson and Warren. They said the documents should have been turned over early last year, when the suspects were indicted, rather than 10 days before the lengthy trial.
Assistant Commonwealth's Attorney Brad Bryant said the documents were withheld y a mistake because of a communications breakdown between police and prosecutors. He said prosecutors only recently had learned of the documents while investigating discrepancies in cellphone records that were to be used in the case.
"It's purely my fault. It was an oversight by me," Bryant said.
"So is the penalty that I take death off the table?" Bunnell asked him.
"I believe that is an extreme sanction for unintentional conduct," Bryant replied. "But that is certainly within the court's discretion."
The documents, compiled by police detectives and forensics investigators, contain memos, notes and measurements that describe the crime scene at 243 Hedgewood Court, attorneys said. It was the first time defense attorneys have had a cohesive description of the scene.
The file also contains evidence that Ira Robinson, the prosecutor's star witness who survived having his throat cut, might have lied during sworn testimony, defense attorneys charged.
"His credibility, since their entire case hinges on it, is crippled," said Tom Griffiths, an attorney for Warren. "The information in these pages, if fully developed by our defense team and our experts, will help prove that Ira Robinson is lying. I can't imagine anything more exculpatory."
Defense attorneys were mixed on how they should proceed. They agreed that it will take time and money they don't have to review the new evidence with the help of crime scene investigators and experts.
Attorneys for Warren said they could be prepared for trial next week, but not a capital murder trial, which requires extra steps, including enhanced jury screening.
"If death was excluded from this case, we would no longer need to work on those components and we could focus all of our energy on the new evidence in this case," Griffiths said.
Attorneys for Gadson said they didn't think they would be prepared for trial by next week regardless of whether the death penalty was removed.
Attorneys for a third suspect, Montrevell Lewis, said they couldn't say one way or another how the evidence might affect their case. Lewis cannot face the death penalty because he was 16 when the slaying occurred. He could face a maximum of life in prison with the possibility of parole after 25 years if he is conficted.
Police have said Gadson, Warren and Lewis entered Robinson's townhome in Lexington's Woodhill neighborhood and tied up Robinson and Carter, Robinson's friend. The trio were accused of fatally shooting Carter and cutting Robinson's throat, then shooting Robinson in the leg as he tried to escape.
Prosecutors have said the motive was robbery, which is an aggravating circumstance under Kentucky law that can elevate a murder case, with a maximum penalty of life in prison, to a capital murder case, in which the death penalty is possible.
Bunnell and the attorneys did not make a decision Monday whether the trial will be postponed or the death penalty will be stricken. The judge scheduled another hearing Tuesday afternoon to try to reach a resolution in the case.