Witnesses of DSU shooting death recant statements

Associated Press

WILMINGTON — Prosecutors will not appeal a judge’s dismissal of a murder case against a man accused of shooting two Delaware State University students, state justice department officials said Thursday.

Superior Court Judge William Witham Jr. last week granted a defense motion to dismiss the case against Loyer Braden, 20, of East Orange, N.J., because prosecutors withheld key evidence in the 2007 shooting: a videotaped interview of an eyewitness who said he didn’t think Braden was the shooter.

Chief Deputy Attorney General Richard Gebelein revealed Thursday that a second witness who has implicated Braden changed his statement last week as well, but prosecutors never told the judge or the defense at a hearing on the videotape. Gebelein said the second witness’ recantation was a key factor in deciding not to appeal Witham’s dismissal of the case.

Braden’s lawyer, James Liguori, was unaware that the second witness had changed his story until told Thursday by a reporter.

"I didn’t know about any recantation at all," he said.

Gebelein said no one in the attorney general’s office intentionally withheld any evidence from the defense.

"At no time did the Delaware Department of Justice try to deny the defendant a fair trial," he said.

Witham’s dismissal ruling centered on a videotaped interview of an eyewitness who spoke to Dover police in September 2007 the day after Braden was arrested in connection with the shooting, which left 17-year-old Shalita Middleton mortally wounded and another student, Nathaniel Pugh, with an ankle wound.

The tape was given to prosecutors a month later, but they did not listen to it until April of this year as they were preparing for trial. The tape, along with several others that might have had exculpatory evidence, were then turned over to the defense.

Gebelein suggested that prosecutors would have paid attention to the tape earlier had police mentioned it in their report, but he did not fault police.

"I’m blaming our office for not listening to all the tapes," said Gebelein, who nevertheless said the prosecutors, Dennis Kelleher and Jason Cohee, will not be disciplined.

"I understand the workload that the deputies are asked to deal with ... There are obvious lessons to be learned from this particular case," said Gebelein, who declined an opportunity to convey a message to Braden.

"I’m not saying that we had the wrong individual," he said.

But he acknowledged that whoever did the shooting likely got away with it.

"At this point in time, unless additional evidence were to be developed, ... there’s not going to be a criminal prosecution," he said.

Joe Rhoades, an attorney representing Middleton’s mother, Lavita Middleton, said his client was "frustrated and deeply saddened" by the turn of events, and he asked the state to keep the case open in case additional evidence surfaces.

DSU acting President Claibourne D. Smith issued a statement following the decision saying, "Based on what we heard today from the Delaware Office of the Attorney General, we are extremely disappointed that it appears that no one will be brought to justice for the 2007 shooting that resulted in the death of a bright young woman and the injury of another student."

"The DSU Police Department, joined by the Dover Police, acted carefully, thoroughly and methodically on this case," Dr. Smith said. "DSU is very appreciative of the Dover Police Department’s joint efforts in the investigation."

"It is with sadness that our thoughts and our prayers continue to be with the family of Shalita Middleton," Dr. Smith said.

Liguori said the state’s decision not to appeal the dismissal was both timely and proper.

Unknown whereabouts led to dismissal of murder charges

Delaware State News

DOVER — The missing witness in the 2007 shooting death at Delaware State University has been located, a Department of Justice spokeswoman said Friday.

Malcolm McCuiston, whose unknown whereabouts led to the dismissal of murder and related charges against the former DSU student accused in the slaying, has been located, said Kerry Angell of the attorney general’s office.

The significance, if any, of the development was not clear. Ms. Angell declined to comment further. Defense attorneys in the case could not be reached for comment.

Charges against Loyer Braden, 20, were thrown out this week by Superior Court Judge William Witham Jr. because Mr. McCuiston was unavailable to Mr. Braden’s lawyers.

Defense attorneys James L. Liguori and Gregory A. Morris filed for dismissal of the charges last month, saying prosecutors withheld evidence until April 9 that Mr. McCuiston had provided eyewitness information that could support Mr. Braden’s claim of innocence in the death of Shalita Middleton, 17, of Washington, D.C.

Mr. McCuiston allegedly said there were two shooters, both dressed differently from Mr. Braden and wearing a hairstyle unlike his.

The defense filed a second motion for dismissal this month after Mr. McCuiston had not been found, and that motion was granted, canceling the second-degree-murder trial of Mr. Braden that was to begin next week.

Ms. Middleton, a DSU freshman, was described by authorities as an accidental victim of a shooting that occurred a few days after a fight between Mr. Braden and a student named James Richmond, both freshmen. Ms. Middleton was walking with Mr. Richmond and others shortly before 1 a.m. Friday, Sept. 21, 2007, when four to six shots were fired, a DSU police investigator testified in a hearing a week after the shooting.

Ms. Middleton was struck in the abdomen and died about a month later. Another freshman, Nathaniel Pugh, was shot in an ankle. Mr. Pugh also was described as an unintended victim.

Mr. McCuiston allegedly said in a police interview shortly after the shooting that he saw two men firing guns, describing them as having dreadlocks and wearing white T-shirts.

Mr. McCuiston was a DSU student then, university spokesman Carlos Holmes said. Mr. Holmes declined to reveal any other information about Mr. McCuiston, citing confidentiality rules.

In summer 2008, Mr. McCuiston was one of eight college students employed as interns in Washington, D.C., offices under a program of the Downtown DC Business Improvement District, according to a press release from that organization at the time. The statement described Mr. McCuiston as a social work major at DSU.

Based on the testimony of other witnesses, investigators zeroed in on Mr. Braden as their suspect.

DSU Police Lt. Donald Baynard testified in the September 2007 hearing that one person said Mr. Braden went to a friend’s apartment after the shooting and was "visibly shaking" and talking about the incident, saying he fired a gun in the air to scare the group that included the shooting victims.

Another person, according to Lt. Baynard, recalled Mr. Braden’s saying two days after the incident that "if he got away with this, he’d never do it again."

Accused shooter free after judge rules that state withheld evidence

Delaware State News

DOVER — Charges against the man accused in the 2007 shooting death of a fellow Delaware State University student were thrown out Tuesday.

Superior Court Judge William L. Witham Jr. granted a motion for dismissal by lawyers for defendant Loyer D. Braden, 20, agreeing that the state erred in not releasing evidence favorable to Mr. Braden.

The motion by defense attorneys James L. Liguori and Gregory A. Morris said prosecutors were aware for more than 18 months that a purported eyewitness had said the fatal shooting was the work of two men, neither dressed as Mr. Braden was on the September night in which freshman Shalita K. Middleton was struck by one of several shots fired as she walked with friends. But that information was not relayed to the defense until recently.

Prosecutors said their inaction was an oversight.

"We are disappointed with the decision and will be reviewing our appellate options," Department of Justice spokesman Jason P. Miller said.

He said he was unsure whether Mr. Braden could be indicted again if Judge Witham’s ruling — issued orally following arguments in a hearing Tuesday — is not overturned.

Mr. Liguori and Mr. Morris compared the case to that of U.S, Sen. Ted Stevens of Alaska, whose conviction on corruption charges was overturned last month because prosecutors failed to provide the senator’s defense team with evidence that contradicted testimony against him.

Mr. Liguori said the information in question in the Braden case was vital to proving something the defense was told repeatedly. "All along we heard from everyone at the university that they arrested the wrong guy, that the guy who did it had dreadlocks. Obviously, my client didn’t have dreadlocks."

Mr. Braden also wore a black T-shirt, according to the purported eyewitness, while the two shooters wore white T-shirts.

"The judge didn’t find (the prosecution’s mistake) malicious, and we didn’t, either," Mr. Liguori said. "But they shouldn’t have sat on (the information) for a year and a half."

The whereabouts of the purported eyewitness are uncertain.

Prosecutors argued that his testimony was not needed at trial; the police officer with whom he spoke could have repeated what he said. They said, too, that the trial simply could be postponed until the witness was available.

Mr. Braden’s mother, Denise Braden, said her son has always maintained — and she has always believed in — his innocence.

"I think the Lord worked it out," said Ms. Braden, who expressed her sympathy for Ms. Middleton’s family.

"I can’t imagine having to lose a child, but I’m certainly thankful, and I thank God that the judge made the decision he made today," she said.

Denise Braden refused to let her son speak with a reporter, but she said he works for a water-quality-testing company and is taking real-estate classes. Ms. Braden said her son will return to college, but that "it won’t be in Delaware."

Authorities said Mr. Braden emerged as a suspect after he and a fellow freshman got into a card-game dispute that resulted in a fight in which Mr. Braden was spat on with blood after throwing a punch that split his rival’s lip. The pair met again several days later, this time while each was in a group.

During the confrontation, shots were fired, felling Ms. Middleton, 17, of Washington, who died about a month later, and another student, Nathaniel Pugh, who was hit in an ankle. Ms. Middleton and Mr. Pugh were described by investigators as unintended victims.

Mr. Braden, arrested three days after the shooting, was charged with second-degree murder and related offenses. He returned to his home in East Orange, N.J., after posting bail.

He was to have gone on trial next Tuesday.

Acting DSU President Claibourne Smith expressed dismay that a trial may not occur.

"We are disappointed that a jury may not get an opportunity to render a verdict in this case," he said. "At this point, we understand that the Attorney General’s Office is reviewing its appeal options. For that reason we will withhold any further comment.

"Uppermost in our minds is Shalita Middleton, a beautiful young woman who lost her life in this incident," he said. "Our thoughts and prayers continue to be with the Middleton family."