Public defender criticizes state's secrecy in Vaughn prison riot case

State prosecutors' secrecy is contributing to an unfair defense for some of the men charged with murder in the death of correctional officer Sgt. Steven Floyd during the uprising at James T. Vaughn prison in 2017, the state's top public defender said Thursday. 

Jarreau Ayers, a Vaughn inmate with a 10th-grade education and GED, opted on Thursday to defend himself against some of the state's most experienced prosecutors seeking to convict him of charges including first-degree murder, kidnapping and rioting in a trial next month.  

He made that decision after Patrick Collins, the defense attorney with whom he had been working for nearly a year, was forced by professional rules to sever ties because he previously represented a man the state plans to call as a witness. 

That conflict was discovered after the state provided Collins with a list of witnesses on Aug. 30 — a little more than a month before jury selection in Ayers' trial and nearly a year after he was indicted with 18 other inmates.

"It has caused serious problems for Mr. Ayers," Brendan O'Neill, chief defender in the state's Office of Defense Services, told Judge William C. Carpenter at Thursday's hearing. 

Afterward, O'Neill said the situation is neither fair nor appropriate. He said defense attorneys like Collins need time to know who the witnesses are to both avoid conflict and prepare a defense for a fair trial. 

He said state prosecutors should have shared the list sooner. 

"I think they could be acting in better faith," he said. 

A DOJ spokesman declined to answer questions emailed after the hearing.   

During the hearing, Deputy Attorney General John Downs told Carpenter a list of potential witnesses was shared in May when prosecutors provided a roster of 128 inmates that were in the prison wing where the uprising occurred. 

Each of the defendants is represented by a private attorney appointed and paid for by the state's Office of Conflict Counsel, an agency in the Office of Defense Services. 

More money needed for Vaughn riot and other cases, chief public defender says

The conflict office maintains a roster of about 40 private attorneys to handle cases that would present a conflict of interest for the public defender. 

Stephanie Volturo, chief conflicts counsel said her office would have difficulty finding attorneys to represent the men had they used the entire list of 128 potential witnesses to disqualify attorneys. 

The final list provided in August included 19 inmates the state may call to the stand.

"I would have been basing it off people who may have never been interviewed or called at witnesses or have any involvement in this case other than being on that initial Department of Justice list," Volturo said. 

The DOJ also provided defenders with a list of attorneys that had represented potential witnesses, court records show. Collins' name was not included, and prosecutors did not provide more detailed information to check for conflicts leading up to the Aug. 30 disclosure, Volturo said. 

The defendants are to be tried in groups over the coming months. As of now, only attorneys representing the first four defendants have been provided the list of witnesses the state plans to call, and they are under court order not to share the information.

O'Neill said it is "inevitable" another conflict like Collins' will occur. 

Carpenter, the judge, told O'Neill he is drafting a new order to rectify the situation. 

When asked if she felt prosecutors were trying to hamstring the defense by delaying disclosure, Volturo said she can't speak for the DOJ. 

"I can tell you that they haven't given us the information we need to do a conflict check," Volturo said. "(The attorneys) did not have the names until really late so you have someone like Mr. Ayers, who has been with his attorney for quite some time, having a conflict declared on the eve of his trial." 

Collins said he was "disappointed" not to be able to represent Ayers. 

During the hearing, Ayers, 37, appeared confident and said he wanted to be represented by Collins or nobody. Ayers is serving a life sentence for two Wilmington killings, one in which he shot a man in the back of the head in broad daylight.

"I always prepared myself," Ayers told Carpenter. "I'm focused." 

He said he also didn't want his trial moved to a later date. 

"I know there is no physical evidence against me at all," Ayers said. He said that cross-examining the witnesses will make his defense.

"I have 16 hours a day to prepare for that."

Jury selection for the first trial wave is to begin Oct. 8. Carpenter said on Thursday actual testimony will not begin until the week of Oct. 22 and last three to four weeks. 

Inmates staged the violent uprising in February 2017. Floyd was killed, two others were beaten and one counselor was held hostage for some 20 hours before police were able to breach a wall with a backhoe.

The riot ignited calls for increased pay for correctional officers, improved conditions for prisoners and spawned several lawsuits against state government with defendants including former governors. 

While defense attorneys say secrecy has been a theme in pretrial proceedings, it is also an unusual hurdle for members of the public seeking to monitor how the criminal case is being administered. 

In July, Carpenter ordered that transcripts in the pretrial hearings and conferences be sealed. Since then, most docket entries in the defendants' cases read "documents filed, sealed by order of Judge Carpenter," which is atypical for first-degree murder trials or trials with several co-defendants. 

It is uncharacteristically impossible to ascertain hearing dates from the individual case dockets for the defendants. 

Last week, The News Journal requested, among other documents, a copy of the order Carpenter has used to seal the pretrial material. 

Typically, requests for case information is handled by staff in the Superior Court Prothonotary office, who pull the files and provide the requested information, if possible, within an hour or two.

The recent request for documents in the Vaughn case was delayed for days before staff noted that Linda Carmichael, chief staff attorney at the Delaware Superior Court, was handling the request, which is atypical for a murder case. 

Carmichael attended the Ayers' hearing and afterward said she had been conferring with Carpenter about what can be shared. 

"As soon as I get a response, I will get it to you," Carmichael said. 

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter.

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