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A federal prosecutor’s “illogical argument” regarding a missing snippet of a police radio broadcast led the D.C. Court of Appeals to overturn Carlton Henderson III’s convictions on multiple charges related to illegal gun possession this month.
The case, which started with Henderson’s arrest in 2017, has been winding its way through the local court system since then, including two trips to the Court of Appeals. A three judge panel issued a ruling earlier this month overturning his convictions and striking the testimony of the arresting officer as a sanction for the U.S. Attorney’s Office’s “gross negligence” in locating a key recording of a police radio transmission. By the time prosecutors checked with the Office of Unified Communication, which maintains such data, the three-year retention schedule had expired, and the recording was deleted.
“The suppression hearing transcript shows that the prosecutor failed to take steps he should have taken to obtain the recording of Officer Thomas’ broadcast, actively disregarded evidence that it was missing, and sowed confusion in the wake of his negligence,” Associate Judge Catherine Easterly wrote in the October 2023 opinion.
Here is what happened, according to court records:
Metropolitan Police Department Officer Kirkland Thomas was on his lunch break in the 2400 block of Alabama Avenue SE in June of 2017 when a tipster flagged him down to report that they had seen a man with a gun in his pants near Eddie Leonard’s Carryout. Thomas, who was working on the Seventh District Crime Suppression Team, says he broadcast the information over the radio, including a description of the suspect.
“At the time, I was going back to the station, because I was by myself, and I didn’t want to go in the area by myself,” Thomas said during a May 2018 court hearing. At the station, he enlisted other officers to return to the area, and they arrested Henderson on multiple charges related to illegal gun possession.
Before his trial, Henderson asked the judge to bar prosecutors from using the gun and ammunition as evidence against him (effectively killing the case). He argued that the officers did not have reasonable articulable suspicion to stop him.
D.C. Superior Court Judge Steven Berk rejected Henderson’s argument, and after a bench trial, Henderson was convicted and sentenced to 27 months with 15 months suspended.
But during the evidence suppression hearing, Henderson’s attorney realized, based on Thomas’ testimony, that they were missing a key piece of evidence: the radio recording of Thomas’ initial broadcast.
During the hearing, Thomas said that he broadcast the tip over the radio before returning to the station to “pick up the rest of my teammates.” But after listening to the radio recordings played in court by the defense attorney, Thomas testified that the recording featured the voice of an Officer Williams, who was repeating Thomas’ initial lookout. The logical conclusion, as the Court of Appeals points out, was that there must be another radio recording with Thoams’ initial transmission.
Yet in court, the prosecutor insisted that “there isn’t anything else that is out there that we have not turned over,” and accused Henderson’s defense attorney of “opening the door to some sort of witch-hunt for something that doesn’t exist.”
“There was nothing else that was made outside of what we turned over and what he listened to,” the prosecutor reiterated.
Judge Berk rejected Henderson’s motion to suppress the tangible evidence, as well as his request to strike Thomas’ testimony, and the case moved forward with his conviction.
Henderson later appealed the judge’s ruling, and the appeals court sent the case back to D.C. Superior Court to further explore whether such a radio recording did in fact exist.
During a Superior Court hearing in May 2021, prosecutors finally conceded that a recording of Thomas’ initial broadcast must have existed at some point. But an Office of Unified Communications employee testified that they could not find anything other than what had been provided to Henderson’s attorneys because recordings are destroyed after three years.
Superior Court Judge Julie Becker ruled that “both the police and the prosecutor were negligent in failing to discover the error before or during the hearing on the motion to suppress.” But the judge stopped short of punishing the government. Judge Becker reasoned that the existence of the recording was “not obvious,” in part because Thomas said he may have inadvertently made the initial broadcast over the wrong radio channel.
Henderson appealed again to the Court of Appeals, who disagreed.
“It was just as obvious at the suppression hearing that the government had not done—and continued not to do—what was necessary to locate the recording,” Judge Easterly writes in the Court of Appeals opinion.
As a sanction for the government’s “gross negligence,” the appeals court vacated Henderson’s convictions, struck Thomas’ testimony, and once again sent the case back to Superior Court.
A spokesperson for USAO says via email that they are reviewing the opinion and did not say whether the office will continue to pursue charges against Henderson in light of the Court of Appeals’ ruling.
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