SUPERIOR COURT or me DISTRICT or cotuhiarn Criminal Division - Felany are Jr.' UNITED STATES OF AMERICA Criminal No.: 2011 CF1 001426 Judge: Wm. Jackson BRIAN A GAITHER Next Date: 01/31/13 DEFENDANT 9 WI fiflRAW GLJILTY PLEA COMES NOW Brian A. Gaither, by and through undersigned counsel, and respectiuity requests that Ihis Hunorahle Cnurl allow hlrti to withdraw his guilty plea and allow him to proceed to trial. As grounds for such motion, the defendant states to the court as follows: INTRODUCTION - RELEVANT BACKGROUND case is before the court upon an indictment of Mr. Galther for an incident that allegedly occurred on or about August 2d, 2010. The Incident is alleged to have occurred at an unspecified time at !Trenton Place, S.E., Washington, DC. The alleged decedent, Latlsha Monique Frazier, was reported missing to the Metropolitan Police Department by her mother on Wednesday, August Mb, 2010. The mather reported that Ms. Frazier had not returned home for two days and had never remained away irom home without notice iar that period of time. Defendant Gaitherwas arrested on January 21:1, 1011. at approximately 4:10 pm. on a misdemeanor bench warrant unrelated to the instant case. The body of latlsha Monlque Frazier has never been found. ;'-,t'.j Although the case was reported on localtelevision on August 4th 2o1o and again on January zolh'zo,,,., no one came forward with any information concernlng the disappearance of Latisha M' Frazier until on or after January zoth, 2011. This witness did not ctaim to be an eye witness, but reported that she had been told by defendant Jackson that he participated in the beating, restraint and death of Latisha M. Frazier. subsequent to the lnitial non'fact witness, two additional witness concerning the disappearance of Latisha M. Frazier came fonrard, indicated themselves, and additionally implicated defendant Gaither as a participant in an alleged physical assault. Subsequent to his arrest on January 22d,ilAtl., it is alleged that defendant Gaither gave a voluntary state implicating hlmself in an assault on the Ms. Frazler. Defendant Gaither here proffers to this Honorabte Court that at no time did he indicate that he participated in the death of Ms. Frazier. Defendant Gaither proffers to the court that he admitted paftlcipating in attempthg tg temporarily restrain Ms. Frazier, but stated with clarity that when he departed Ms. Frazier's presence she was alive and responsive, demonstrated by the fact that she was coughlng and recuperating. PROCEDURAL HISTORY On January 24th,zOL]., defendant Gaither was assigned counsel and presented before M' Judge Howze on one charge of second degree murder ln violation of D.C. Code Section 2103(2001 ed.) . Defendant was detained. The case was assigned to Judge William Jackson and a preliminary hearint was scheduled for February 1lth, 20J.1. , ', ' | / on January 3d, 2011 the scheduted February 1lth, zoll preliminary hearlng was vacated' the lnitial complaint was withdrawn and a new complaint charging defendant Gaither with first degree murder was filed. The prelimlnary hearing was waived by defendant Gaithell and a felony status conference with codefendants was scheduled for March 4th, 2011. On February 15th, 2011, the status hearing scheduled for March 4th, 2011was amended and changed to June loth, 2011. However, the March 4th, z0ll fetony status hearing was held, defendant Gaither's oral motions for release on bond and recovery of decedent,s remains was denied On March 15th, 2011 a motlon to compel recovery of decedent's body was flted on behalf of defendant Gaither. Government's opposltion to defendant's motlon to compel was filed on April 12th, 2011 and on Aprll z0th, 2011the court scheduled a status hearing for Aprlt 27th,2011. On April 27th,}OLL defendant's motion to compel recovery of the decedent's body was denied and the case was continued for a felony status conference on June 10th, 2011. Defendant's renewed motion for change of bond status was denied. On June 10th, 2011 the case was continued untll October ZLst,ZOLL, because defense counsel was unavailable. on october 13th, 2011 a consent motion to toll indictment clock and reschedule arraignment date was filed. On October 14th, 2011the motion was granted by the court. On November 1st, 2011 a seven count indictment was filed. And an arraignment date was scheduled and defendant was arraigned on November 3d, 2011. On November 7th, 2011 a Jury tria! was scheduled for November 19th, 2012. on November 15th, 2o11the court received correspondence pro se from the defendant. on January 3d,Zo,.?the united states filed a motion requesting a handwriting exemprar. A status hearing was scheduted for January 20th, 2012. on January 13th, 2012 a motions to suppress identiflcation, statements and tangible evldence to sever defendants and to suppress identification memorandum of points and authorities in support thereof was filed on behatf of defendant. On March lst, 2012 a motion,s hearing was scheduled for May llth, 2012. on March 14th, 2012 the government's omnibus opposition to defendant Gaither's motion to suppress was filed. On May l1th, changed to June 2012 the status hearing scheduled for May 11th, 2012 was vacated and 22d,IALZ. On June 2lst,Z}L}continuance motlons were filed and the motionrs heartng were continued by the court untilJuly 1gth, 2012. On May L4lh,z}Ll,the government filed an opposltlon to defendant Gaither's motion to sever. On July gth, 2012 the government filed a motion to quash defendant's subpoeanas duces techum, and on July 13th, 2012 the Bovernment withdrew its opposition to defendant's - motion to sever and on Juty 19th, 2012, the court granted the severance motion, and a status hearing was scheduled for August 10th, 2012. After motlons filed on Juty 25th and 26th,21lzon Juty 27th,z}t2the court signed a consent order authorizing independent DNA testing on Juty zlth,zaLz. At the August loth, 2012 status hearlng, a continued status hearlng was set for September l0th, 2012. on August 3lsL 2012 the defense filed a motlon for reconsideration of the court,s decision on the order of trials and the government fited a response on september 13th, 2012. On September 14th, 2Ot2 a status hearing was scheduled for October Sth, 2012. On october 5th, the hearing was continueo untit october 1gth, 2012, on october 17th, 2012 the government filed a motion in limine to exclude evidence that a third party committed the charge crimes and on october tgth,2oL2,a continued status date of November gth, 2012 was set. On November 5th, 2OLlthedefense filed another motion to competdiscovery and the government's opposition was filed on November 8th, 2012. On November 9th, 2012 jury instructions were discussed and the trlal was set to continued on the acknowledged date. on November 9th, 2012, the defense filed a motion to exclude evidence and unseallng of sealed witness list. On November 15tgh, 2012 the defense filed a motion to continue, and the government filed a motion in liminae to admit jai! calls. On November 15th, 2012 the motion to continue tria! was denied, and the defense filed its motion to exclude |ail calls. . on November 19th, 2012 the defense filed a motion for sanctions for Brady Violations and the defense motion to suppress statements was denied and the triat began. Defendant resolves the case by plea. :. on January gth, zo12 advisory counser was appointed and on January 1fth, 2012 a status date was set for January 3lst, 2012 to provide advisory counsel an opportunlty to meet with defendant, investlgate the case and provide defendant with written advice on his options. DEFENDANT GAITHER's BASIS OF MOTION TO WITHDRAW PLEA Defendant's proffers to the court that he is not guilty of all of the offenses charged and wishes to proceed to tr:ar. !n support of his decraratron of rnnocence, defendant Gaither says to the court he had earlier in the proceedings notified his lawyers and the cburt of his state of confusion over the complexity of this case and his inabllity to fully comprehend and understand the legal concepts and court proceedings retated to his Ctrnstitutional Rlghts to mount a defense and be represented by counsetthat fully communicated with him concerning his options. Defendant Gaither further proffers to the court that throughout the lititation of this case.he was unable to communicate with his attorneys and that the complex nature of this multi-codefendant case caused defendant to be unaware of his opflons related to proceeding to trial. ,r: . Defendant Gaither proffers to the court, as is reflected ln the procedural history of the instant case, that he entered a plea after the trial star:ted with minimal time to consider the full Sravity of entering a plea that carried significantty the same time as exercising hls traat rights. Defendant Gaither says to the court that he indicated to his attorneys in the cell block prior to entering the plea, that he was confused, needed more time to discuss and fully undeistand whether he should proceed to trial or enter a plea. Defendant Gaither further proffers to the court that hls attorneys refused to indicate his concerns to the court and told . him that he had no option except to resolve the case by prea. Defendant submits that at the earliest possible time after entering the plea defendant informed his attorneys that he wanted to withdraw his plea and proceed to trial, not receiving cooperataon to notifo the court and filing a motion to with draw hls plea, defendant submits that he flmely notified the courtand requested new counsel. THE TEGAL STANDARD FOR WITHDRAWAL OF A GUILTY PLEA ln the Distrlct of Columbia a defendant may successfully withdraw a gullty plea by establishing two independent groupds. The defendant may show that there was a fatal defect in the Rule 11 proceeding or that the circumstances of his individual case are such that Justice demands that the plea be withdrawn. Sprinqy. United stiles. 614 A.2d 1 (D.C. App. 1992, citing 6oo.dins v. United States. 529 A.zd at 306. But motions to withdraw a gullty plea made prior to sentencang are regarded more leniently and Should be glven favorable consideratioh, ,' , . , if for any reason the granting of the privilege seems falr and just." lgl., at 306; Blnion v. U-rlited States. 5s8 A.2d 187 (D.C. App. 1995). The factors used under the "fair and Just" standard are: a) Whether the defendant has asserted his legal innocence; b) the length of the delay between the entry of the guihy plea and the iesire to withdraw it, and c) whether the accused has had the fult benefit of competent counsel at all relevant times. Sprine v. United States, 6L4 Azd 1, 4 D.C. App. 1992), Goodins v. united..States. 529 a 301, 305-307{D.C. ABp, f987); Binip.Ay., Un[gd citing S.!,E!FS. .:. 658 A.2d 187, 191(DC. Appl 1995). ln addition, other circumstances of a particular case may show other factors which bear upon the application of the fair and just standard. APPL'CATION OF THE LEGAL STANDARD TO THE FACIS OF DEFENDANT'S GATHIER,S CASE ln accessing a claim of innocence the courts have held that lt is not enough for the defendant to say that he did not do it. The defendant's assertion in spring offers an example. There the defendant entered his guilty plea on March 21st. ln a hand written pro-se pleading dated Apring 4th and flled with the Court Aprll 12th, the defendant shought to withdraw his guilty plea, His soJe reason in the motion was that he was no tin the ,'right frame of mind,,due to medication he was taking. Spring v. Untted Statesl$t{_A.,&!_gLt At a hearing on the motion the defendant said that he had a good defenhse to the charge, but when pressed as to what lt was, he could only say that he was not picked from the line-up and that he "was in the wrong place at the wrong time". his motion did not claim non-culpability. !g1., !g1., at 5. The court noted that at 5. Mr. Gaither asserted his innocence very early in this case. His immediate notification.to counsel and to the court before sentencing that he had entered a plea white not in full and total control on his mental facilities and while under a great deal of pressure because of the denial of his continuance motion and the start of the trlal fulfllls the requirements for the court to grant defendant's motion to withdraw his plea. Defendant had appeared the day before entering a plea and had indicated to the court that he was was ready for trial and had announced ready for trial on prior occasions including a scheduled tria! date where his attorney requested a conflnuance. Defendant Gaither here proffers to the court that the comblnation of repeated status hearlngs in which he indlcated he was not gullty of the charges and wanted to proceed to trlal -. combined with his dentetion since the Inception of this case contributed to the unintended entry at this plea of guilty. CONCLUSION Defendant Gaither has asserted his Innocence in this case at an early period after the entry of his unintended plea. His notification to counsel and the court was only by ability to notify counsel and court from the restrictive detention at D. C. Jail. The notification cl his desire to withdraw his plea was made not after the entry sentence or mnsulbatlon with new counsel. It is th erefore, respectfully requested that the defendant's motion to withdraw his plea be granted and a trial date set. Respectfully submitted, Archie M. Nichols 7 35 Attorney for Defendant Gaither 1442] Morton Hall Road Silver Spring, MD 20905 By affixing my signature below I certify that i have read the above Motion and certify its accurace As to Issues nf fact. CERTIFICATE OF SERVICE I HEREBY certify that a copy or this motion has been sewed upon the office or the us. atthe requested email address and a hard interoourt mail on day cflanuary 2013. Archie M. Nichols. 1 I