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Defense attorney says man shouldn't face new trial after Wake prosecutor's misconduct

Posted June 30, 2016

— A man whose conviction was overturned because a Wake County prosecutor withheld evidence should be freed and not have to face a new trial, his former defense attorney said Thursday.

Last week, the state Court of Appeals overturned the armed robbery convictions of Barshiri Sandy and Henry Surpris, ruling that Wake County Assistant District Attorney Colleen Janssen had violated the men's constitutional rights to a fair trial.

Wake County District Attorney Lorrin Freeman placed Janssen on paid leave this week as she reviews the case and decides whether to retry the men. Attorney Deborrah Newton, who represented Sandy in his 2014 trial, said she hopes the charges will be dropped.

"My primary and only goal at this point is for Mr. Sandy to get out of jail," Newton said. "He needs to be out, and I hope the case would be resolved in his favor."

She no longer represents Sandy, who has an appellate public defender.

Sandy and Surpris confronted Marcus Smith in his garage in April 2013 and exchanged gunfire with him before fleeing the scene, according to court records. Smith testified at trial that Sandy and Surpris robbed him of $1,153 in cash and a ring, while the two defendants testified that Smith was a drug dealer who hadn't delivered some marijuana they had bought.

Smith denied any involvement with drugs, and Janssen repeatedly said during testimony and in her closing argument that there was no evidence to back up Sandy's and Surpris' claims, according to court records.

But Janssen had used a personal email account several times before the trial to communicate with a Raleigh police investigator about a raid on a drug house linked to Smith, and she never provided information about those exchanges to defense attorneys, according to court records.

Newton said she knew Smith was a drug dealer and wanted to show jurors he was lying on the witness stand when he said he was carrying a wad of cash because he owned a club. But she was never able to ask Smith about any connection to drugs during her cross-examination.

"She objected repeatedly to any questions about whether Marcus Smith was lying on cross-examination and whether he was, in fact, a drug dealer," Newton said of Janssen.

Still, she said she was stunned to learn that Janssen had communicated with narcotics detectives before the trial to ask that they hold off on filing any drug charges against Smith until after Sandy's and Surpris' trial. The e-mails didn't come to light until a subsequent federal prosecution of Smith on drug trafficking charges.

"I couldn't believe it," Newton said. "The fact that Marcus Smith was arrested and prosecuted in federal court shortly after the trial was bad enough. Having emails to avoid that happening until after the trial was just beyond belief."

She said she has always had "a very friendly, professional relationship" with Janssen, which compounded her bewilderment and anger over the situation.

Freeman said she cannot make a decision on retrying the case until after July 11 because the Attorney General's Office has until then to ask for a Supreme Court review of the appellate court ruling.

In the meantime, Freeman said Wednesday that she plans to meet with Janssen this week and decide by next week whether to take any disciplinary action. She said there is no criminal investigation of Janssen's actions, but the North Carolina State Bar could pursue disciplinary action separately.

"My experience with Lorrin since she's been elected (is) she's done an absolutely wonderful job, and her process is, in my opinion, unimpeachable," Newton said. "She will do the right thing, and I'm just leaving that up to her."

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  • Mark Cooper Jun 30, 2016
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    How can there not be disciplinary action? Regardless of the actual guilt or innocence of these two individually you are talking about people's freedom, their lives. How can one be so cold and callus going to the length of intentionally using communication outside the system. Asking for another charge to be delayed flies in the face of a the "speedy trail" principle and is part of the 6th amendment. We are talking constitutional law if you look thoroughy.

    They system cannot afford this. This is much like the officer that was caught lying on camera as i will bring many arrests/convictions into question. This like this can flood the already overcrowded court system costing tax payers potentially millions in the long run.

    Let us who fund her salary vote on her discipline