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A federal judge who oversaw the successful prosecution of one of the city’s most violent drug gangs says he cannot be impartial in considering the gang leaders’ request for a new trial. U.S. District Judge Thomas Penfield Jackson, who also presides over the government’s antitrust suit against the Microsoft Corp., has stepped down from the ongoing saga of the Newton Street Crew. The unusual move comes five years after Jackson sentenced the defendants to multiple life prison terms, and two years after a secret Justice Department investigation found evidence of misconduct by the team of prosecutors and police who busted the drug ring. The 86-page report by the DOJ’s Office of Professional Responsibility remains under seal. Judges rarely recuse themselves after investing so much time in a case. Post-trial challenges, such as motions seeking new trials, almost always become the province of the judge who heard the evidence at trial. Indeed, someone like Jackson, who presided over more than five months of testimony, is the ideal person to make judgments about how newly uncovered information affects a case, says Richard Flamm, who has written a book about judicial disqualification. “A judge not only does form strong opinions about criminal defendants and other characters in the trial, like lawyers, but he is expected to do so,” says Flamm. But Jackson apparently has come to the opposite conclusion. In a one-page statement, the judge made no mention of the seamy details about a long-running controversy in Newton Street: claims about the treatment of witnesses before and during the 1994 trial. The allegations-namely, that the relatives and friends of key government witnesses received financial benefits, and that the witnesses themselves may have enjoyed access to drugs, alcohol, and sex while in custody-form the basis of defense attorneys’ request for a new trial. The judge called such claims “non-frivolous” and wrote that, “if true, [they] undermine confidence in the trial verdict. They also call into question the integrity of the entire prosecution team and could expose the lead prosecutors to criminal liability.” Jackson concluded that he could not make the final call on whether the four defendants, who remain behind bars, should be able to ask questions and gather information about the misdeeds in hopes of winning a new trial. “Having presided over the trial, I have formed strong opinions about the defendants’ guilt, and I have as well developed high regard for the integrity of the prosecutors and the credibility of their witnesses,” the judge wrote. “I am unable to put aside those predilections sufficiently to enable me to decide this matter impartially, unaffected by those prejudices.” Jackson’s recusal was effective March 14, but his statement was released only last week. U.S. Attorney Wilma Lewis declined comment through her spokesman, who cited pending litigation. But in written statements to Legal Times last year, Lewis defended prosectors’ actions in the case, which was tried several years before she became U.S. attorney. “It goes without saying that this office would never condone acts of prosecutorial misconduct by its Assistant U.S. Attorneys,” she wrote. “Whenever it is determined that a matter was handled inappropriately, we will take the necessary steps to prevent its reoccurrence.” Lewis also expressed “complete confidence” in Lynn Leibovitz and Jeffrey Ragsdale, two assistant U.S. attorneys who worked on the Newton Street case and who continue to work in her office. G. Paul Howes, who led the prosecution in this and several other high-profile cases before he left the U.S. attorney’s office in 1995, did not return a call. He is now a partner in a San Diego law firm. Defense lawyers say they were taken aback when they received word that the case had been randomly reassigned to Judge Colleen Kollar-Kotelly. Michael Lasley, a D.C. lawyer who represents John “Dirty John” McCollough, a gang enforcer convicted of participating in five murders, says that until he learned about the judge’s reasons for recusing himself, he assumed Jackson stepped down because he was too busy with the Microsoft dispute. Jensen Barber, a lawyer for Mark “Markie” Hoyle, who ran the gang, which operated on Newton Street in Northwest Washington, seized on Jackson’s statement as a rallying cry for his efforts to reopen the case. “We are encouraged that the Court has recognized there are substantial non-frivolous questions concerning the integrity of the Newton Street trial and the resulting verdict,” Barber says. “The defense has labored for five years under very onerous conditions to obtain confirmation of some of these serious allegations. We have done so without the impressive resources available to the government.” At the same time, Barber bemoaned the loss of Jackson’s “encyclopedic knowledge” of the unwieldy case. John Carney, who represents Anthony “Ghost” Goldston, the gang’s founder, says the new judge has yet to set a hearing date. “I expect it will be some time,” he says. “This is a case that’s probably as large as Microsoft in terms of the size of the transcripts.” Vincent Jankoski, lawyer for Mario “Black Mario” Harris, the fourth defendant in the case, did not return a call by press time. A veteran defense attorney not involved in the Newton Street case says the judge’s order is unusually blunt. “The reasons, to a certain extent, are remarkable in their candor,” says Alan Chaset, who practices in Northern Virginia. “I think we in the criminal defense bar harbor the suspicion that what’s being said happens all the time.”

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