Former Wake prosecutor blames father's kidnapping for misconduct

A former Wake County prosecutor withheld evidence from defense attorneys in a 2014 robbery trial because she was upset over her father's kidnapping months earlier, her attorney said Wednesday.

Colleen Janssen, who resigned as assistant district attorney last July amid questions about her actions in the case, now faces possible sanctions for violating the code of professional conduct for attorneys.

"There's no question Ms. Janssen made mistakes in this case," her attorney, Joe Zeszotarski, said in an opening statement at her disciplinary hearing. "The question, of course, is why did this happen? How did it happen?"

The case in question was the prosecution of Barshiri Sandy and Henry Surpris, who were charged with robbing Marcus Smith in April 2013.

Sandy and Surpris confronted Smith in his garage and exchanged gunfire with him before fleeing the scene, according to court records. Smith testified at trial in October 2014 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, defense attorneys Dewey O'Kelly and Deborah Newton testified during Janssen's disciplinary hearing.

"I think the jury would have been more likely to believe our clients if they understood from the beginning that Marcus Smith was a drug dealer," O'Kelly said.

Emails that came to light during a subsequent federal prosecution of Smith on drug trafficking charges show Janssen used a personal email account to communicate with Raleigh police Sgt. James Battle before Sandy's and Surpris' trial about a raid on a drug house linked to Smith, and she asked Battle to delay pressing charges against Smith.

"It's hard to say a person's getting a fair trial when that's the case," O'Kelly said.

Battle testified that Janssen feared Smith wouldn't cooperate as a witness if he faced charges.

"I was asked not to arrest him, so I took measures to keep his name out of the investigation," Battle said.

Raleigh police Sgt. Nicholas Grimaldi said that he also asked Battle not to arrest Smith until after Sandy and Surpris had been tried, but it wasn't at Janssen's request. Sandy had conducted surveillance of another police investigator's home, Grimaldi said, so police were concerned about the safety of the investigator and his family.

Assistant U.S. Attorney Lawrence Cameron said Janssen asked him to hold off on any federal drug charges against Smith.

"She expressed a desire to me that he not be arrested until after the trial of the state robbery defendants," Cameron testified in a deposition last fall, the video of which was played Wednesday.

When Cameron tried to lay out his case against Smith, he testified, Janssen said she didn't want to know the details.

The North Carolina Court of Appeals ruled last June that Janssen violated the defendants' right to a fair trial by not informing their attorneys of the pending case against Smith. The judges overturned the men's convictions, and Wake County District Attorney Lorrin Freeman then dropped the charges against them.

"She engaged in misrepresentation or deceit," Patrick Murphy, deputy counsel for the North Carolina State Bar, said of Janssen in his opening statement Wednesday. "It's deliberate. It's thought out. It occurs over the course of the case."

"Colleen Janssen never set out to break the rules," Zeszotarski said, noting that she was still reeling from her father's kidnapping six months before she prosecuted Sandy and Surpris.

Kelvin Melton, whom Janssen had prosecuted in 2012, used a cellphone smuggled into a state prison to order members of the Bloods street gang to kidnap her, but the crew went to the wrong address and grabbed her father instead. The FBI then monitored phone conversations between Melton and his subordinates to pinpoint Frank Janssen's location and rescued him from an Atlanta apartment five days after he was taken from his Wake Forest home.

Melton is now serving a life sentence in a federal super-max prison in Colorado, and several of his associates have been sentenced to 20 to 50 years in prison for their roles in the abduction.

Colleen Janssen felt responsible for what happened to her father, Zeszotarski said, calling it "a catastrophic event" that led to revised safety and security procedures for Wake County prosecutors and others.

"Looking back, she knows she wasn't operating at her best" when she returned to work a few weeks after her father was rescued, Zeszotarski said. "She put on a brave face and tried to get back in the swing of things.

Wake County First Assistant District Attorney Howard Cummings said the kidnapping shook Colleen Janssen, who he said had been "always go-go" before that.

"She was not as bouncy as she was. She still moved pretty fast, but she was more deliberate," Cummings said. "She recognized all the threats and potential threats around her."

"This was an isolated instance in an otherwise exemplary 11-year career as a prosecutor," Zeszotarski said.

Colleen Janssen is expected to testify in her defense Thursday at the disciplinary hearing.