KANSAS CITY, Mo. — After serving more than three years in a Kansas prison for a marijuana offense, a man was released last week because his attorney discovered key evidence had not been disclosed to the jury.
Even before the new evidence was revealed, the seven-year prison sentence handed down to Donte Westmoreland had been criticized by some. The American Civil Liberties Union of Kansas called it excessive for a marijuana offense, and Westmoreland's attorney Christopher Biggs, pointed out that someone can serve less time for voluntary manslaughter.
Now Westmoreland's conviction has been thrown out, and he walked out of Lansing Correctional Facility on Oct. 15. But prosecutors in Riley County are still pursuing the charges against him.
"It's good to be free," Westmoreland said Thursday from Topeka, where he is living with his girlfriend. Eventually the 25-year-old hopes to be able to make his way back to his home state of California to be an actor and advocate for criminal justice reform.
He called prosecutors' decision to keep pursuing the case "outrageous."
The Riley County Attorney's Office will re-try the case, County Attorney Barry Wilkerson said Thursday.
"We look at the crimes that we believe they committed," he said. "We try to make sure they get a fair trial and that's what we base our decisions upon."
On March 8, 2016, Westmoreland was arrested after police followed him to an apartment in Manhattan where a car later arrived carrying packages of drugs. Even though there were no drugs in the car Westmoreland was riding in, he was accused of being involved in a drug conspiracy.
In May 2017 he was found guilty of possession of marijuana with intent to distribute and conspiracy to distribute.
He had no prior convictions, but Judge John Bosch sentenced him to 92 months in prison.
After Westmoreland spent years in prison, his attorney Biggs tracked down a key witness earlier this year. He found out the witness had been offered a deal in exchange for testimony that helped convict Westmoreland.
At Westmoreland's trial, the defense and jury had not been told about that deal.
Defense attorney Christopher Joseph represented Westmoreland in an appeal and didn't know about it either. He said justice is undermined when jurors are misled about the motives of a witness.
"Presenting a witness as unbiased when he is testifying to avoid charges himself is the epitome of injustice," Joseph said. "Vacating Donte's conviction was essential to ensuring justice. Unfortunately, he has already spent years in prison unaware of the miscarriage of justice."
An Oct. 13 order filed in the case said prosecutors had "inadvertently failed" to disclose evidence. Westmoreland was released two days later.
Wilkerson, the Riley County Attorney, said the terms of the deal offered to the witness may not have been clear to the prosecutor who tried the case.
"I'm just going to err on the side of caution and say you know what, I'd just rather retry the case and make sure that there are no issues with the integrity of a prosecution than for there to be any questions," he said.
Westmoreland maintains his innocence and said he thought the decision to pursue another trial was unfair given that he has already served more than three years.
"At this point, he's presumed innocent and he has a new trial," Biggs said.
Westmoreland's next court appearance is scheduled for Nov. 2.
