DOVER, Del. (AP) - Delaware’s Supreme Court is mulling an appeal from one of two gang members convicted of murder in a soccer tournament shooting in Wilmington that left three people dead in 2012.
Attorneys for Jeffrey Phillips, 25, who is serving life in prison, contend that a judge made several errors at his 2014 trial.
Those errors included trying Phillips and a co-defendant, Otis Phillips, together rather than separately, granting protective orders that prevented Jeffrey’s attorneys from talking to him about witness statements made before trial, and not declaring a mistrial after a key prosecution witness testified he was in witness protection.
“All of these errors rendered Jeffrey Phillips’ trial unfair,” public defender Kevin O’Connell told the justices Wednesday.
Jeffrey Phillips is serving life in prison. Otis Phillips was sentenced to death. The two men are not related.
O’Connell said the most egregious error in Jeffrey’s trial occurred when star prosecution witness Kelmar Allen, a former member of the Sure Shots gang, testified that he had been offered witness protection in exchange for pleading guilty to gang participation and agreeing to testify for the state.
Allen’s comment, in response to an open-ended question from the prosecutor, came after the judge had ordered prosecutors not to ask any witness about being in a witness protection program unless the defense brought up the issue first.
O’Connell suggested Allen’s comment left jurors with the unfair impression that Jeffrey Phillips may have threatened him or other witnesses.
Deputy attorney general Sean Lugg argued that prosecutors did not deliberately elicit Allen’s statement, but that it was simply blurted out in response to an “inartful” question. He also noted that the judge gave the jury a curative instruction.
In addition to Allen’s statement, defense attorneys are challenging protective orders that prevented them, until 10 days before trial, from discussing the identity of co-operating co-defendants and their pretrial statements with Jeffrey Phillips.
“We have the total inability of Jeffrey Phillips to meet with his lawyers, talk with his lawyers about the evidence that’s confronting him, and formulate a defense based on that,” O’Connell said.
Prosecutors argue that in granting and then lifting the protective orders, the judge struck the correct balance between witness safety and Phillips’ ability to prepare his defense.
Jeffrey Phillips and Otis Phillips were convicted of first-degree murder in the killing of soccer tournament organizer Herman Curry, 47, at Wilmington’s Eden Park. They were also convicted of manslaughter in the death of 16-year-old soccer player Alexander Kamara.
Prosecutors said the two were out to avenge a friend’s death the night before and to silence Curry, who was a witness to a 2008 killing for which Otis Phillips was also convicted.
O’Connell acknowledged that Jeffrey Phillips was at the park and that witnesses said he shot Kamara, but he suggested that Phillips was simply a scared 21-year-old firing shots wildly into the crowd, and that there was insufficient evidence to convict him of gang participation.
Authorities have said some tournament spectators returned fire on the suspects, killing a third alleged gang member.
The Supreme Court has scheduled oral arguments Dec. 7 in an appeal by Otis Phillips, 40.
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