photo by: Kim Callahan/Journal-World

Dominic Sanders, left, appears in Douglas County District Court on Monday, Nov. 18, 2024, with his attorney Razmi Tahirkheli.

Updated at 3:15 p.m. Monday, Nov. 18

A district judge on Monday sanctioned the Douglas County District Attorney’s Office for not turning over potentially exculpatory evidence to a criminal defendant — a sanction that prosecutors intend to appeal.

The sanction by Judge Amy Hanley in the case of Dominic Sanders, whose constitutional rights were violated, consists of prohibiting any evidence and argument regarding bullet shell casings found in neighborhoods that Sanders is accused of having shot up from a moving vehicle on the day of the funeral of 14-year-old homicide victim Kamarjay Shaw, to whom Sanders was close.

Before Hanley’s ruling Monday, dozens of potential jurors sat in her courtroom anxiously waiting for the jury selection process to begin only to be sent home a couple of hours later and for Sanders’ trial to be put on hold.

Hanley excluded the shell casing evidence, as well as evidence related to live rounds found in a car associated with Sanders, because preliminary lab testing on the casings found that they matched a gun that belonged to someone other than Sanders and that the gun was involved in other criminal cases.

“They had that evidence a year ago,” Hanley said, emphasizing the word “year” several times Monday and noting that “grave concerns” would be a “huge understatement” regarding the issues she had with the state’s handling of the case.

Withholding potentially exculpatory evidence is what’s known as a Brady violation, named after a 1963 U.S. Supreme Court case which generally held that the state suppressing evidence favorable to the defendant violated the defendant’s right to a fair trial.

The testing on the shell casings was done in October of last year, and the results were known by law enforcement the following month. However, Sanders’ defense attorney, Razmi Tahirkheli, was not notified about the testing until 11 days ago and was not given the actual results until four days ago.

Monday morning, as potential jurors waited, Tahirkheli and assistant DAs Adam Carey and Brian Deiter met with Hanley in chambers as Tahirkheli signaled his opinion that the case should be entirely dismissed — an option that the state objected to and that Hanley, back in the courtroom minus potential jurors, opted against, calling it the very last resort. Instead, Hanley listened to arguments from both sides in an attempt to “cure” the Brady violation short of tossing the case completely.

The defense objected to any continuance, noting that Sanders was unwilling to waive his statutory right to a speedy trial. In another 11th hour complication, his 180-day speedy trial window was within one day of closing Monday. It will close on Tuesday.

For their part, prosecutors maintained that they only recently took over the case from another attorney in the DA’s Office and that they had not learned of the testing — which they agreed was Brady material — until Nov. 7 after Carey had spoken to a law enforcement witness. When they did learn of it, Carey said, they notified Tahirkheli right away.

Hanley, however, noted that the state is the state, and it doesn’t legally matter for Brady purposes if it’s the police or prosecutors who sat on evidence; the court’s preeminent concern is that the state in all its manifestations affords the defendant a fair trial.

“What matters is what the state knows — and when,” she said.

The defense also declined to stipulate to any evidence related to the shell casings, even if it’s evidence in their favor, because they would still not have time to properly prepare their case under the circumstances.

Discounting the options of continuance and stipulations as cures for the Brady violation, Hanley landed on another remedy, which is simply not allowing at trial any evidence associated with the shell casings, which were found in two locations of the 1500 block of Wedgewood Drive, in the 1700 block of Harper Street and on the roof of a Nissan Versa owned by Sanders’ mother. Hanley also has disallowed evidence of live rounds found in a container in that car.

Prosecutors then moved for Hanley to stay her ruling while they filed what’s known as an interlocutory appeal — that is, an appeal filed to a higher court before the case has concluded.

Prosecutors told Hanley that her ruling would substantially impair their case, an assessment with which she did not disagree.

“We can’t prove that a shooting occurred in that area without evidence of casings,” Deiter said.

Hanley also took issue with a three-hour video of Sanders in a police patrol car that had also just been provided to the defense, but Carey said that the DA’s Office did not intend to use that as evidence.

Douglas County DA Suzanne Valdez instituted a formal Brady/Giglio policy in the DA’s Office in 2022. As part of a district attorney candidate questionnaire earlier this year she listed continued commitment to that policy as the No. 1 thing she would do to instill trust in the community and in law enforcement partners.

“There are many things, but since you asked for one,” she wrote, “I enforce our Brady/Giglio policy in all criminal cases, which ensures that the defendant’s constitutional rights are protected, instills trust in the integrity of the prosecution of a case, and protects the dedicated and upstanding work that our law enforcement partners do every day to keep our community safe.”

As the Journal-World reported, Hanley found probable cause in May for Sanders, 25, to stand trial on three felony counts of criminal discharge of a firearm. He is accused of firing a gun from a moving car into two homes and a vehicle the day that Shaw was being laid to rest at Oak Hill Cemetery.

At the preliminary hearing in March, Senior Assistant District Attorney David Greenwald put nine witnesses on the stand to build his case that the person responsible for firing the shots was Sanders, with several officers testifying about where they found shell casings and one officer testifying that he saw Sanders that morning in the parking lot of the church with a red memorial shirt in honor of Shaw and a handgun sticking out of his pocket.

Tahirkheli argued that lots of mourners were in the area wearing red clothes that day who could have been responsible for firing the gun out of the car. Cellphone video recorded, from a distance, at Shaw’s service showed a car driving by with people hanging out of the windows and shouting — one of them wearing red.

Sanders is one of several people on the periphery of the Shaw homicide who have faced legal proceedings, including a handful of individuals who have faced obstruction charges. The man charged with murdering Shaw, Derrick Del Reed, was acquitted in March.