PORTSMOUTH, Va. — An accused killer is now a free man.
A Portsmouth judge dismissed the first-degree murder case against Jamal Cannon before the jury even had the chance to deliberate.
And as we found out, it's as simple as the prosecutor submitting a witness list with one thing omitted: the home address of their key witness.
Cannon was arrested and charged with first-degree murder in a Feb. 1, 2022 double shooting that ended with D'Quonn Epps dead and another man hurt.
But on Wednesday, on day one his murder trial, Judge Ken Melvin used his discretion to dismiss the case outright.
And now, the Portsmouth Commonwealth's Attorney Stephanie Morales is working to change that. Her office filed a brand new motion Friday asking the judge to "declare a mistrial, reset the case for trial, and remand the defendant to custody."
"That motion speaks for itself," Morales said.
Morales points to the motion that claims the 16 person witness list excluded the address of their key witness – who is the lone survivor of the double shooting – for his own safety.
And she points to Virginia law that allows them to do that.
Sure enough, Rule 3A:11 of the Rules of the Supreme Court of Virginia, states that the Commonwealth may redact the residential address of any witness or victim who satisfies certain conditions.
“This is not new, we have had victims and witnesses who were potentially in danger before," Morales explained. "We have to be very careful to make sure that we're not exposing people to risk and to harm."
Kelsey McKay, a former Texas prosecutor, is now a Victims Rights Attorney and CEO of the nonprofit RESPOND Against Violence. She said the address omission is nothing out of the ordinary.
"Protecting things like their address is a basic fundamental thing that seems like a fair protection to ask for," McKay explained.
But on the other side of the case is Cannon's defense attorney, Michael Massie, who has a different interpretation of what happened in regards to the witness list put forth during discovery.
"For anyone to suggest that they were in compliance would be rather disingenuous. The rules are very clear about what has to happen," Massie said.
Massie said the issue isn't the omitted witness address.
He said the real problem is that the prosecutor missed the deadline to explain why the address was left out, which he claims was required to be included 21 business days before the September trial began, by August 11. Instead, he said the Commonwealth provided that information to him 12 days late, on August 23.
“Witness lists, that’s just putting a date on a calendar and making sure you comply with what the order says and just turn it over. It’s so easy to do," Massie said.
When the key witness was called to the stand to testify Wednesday against Cannon, Massie objected.
"I objected to the witness' testimony because they did not comply with the rules of court," Massie said.
Massie argued the prosecutor failed to timely comply with discovery, specifically by not providing the address for the witness, and by not labeling on the witness list that the redaction of the address was pursuant to Rule SA:11(c)(1) of the Supreme Court of Virginia.
Judge Melvin ultimately agreed and chose to dismiss the case.
In the motion filed Friday, prosecutors called the judge's decision "erroneous, contrary to the law, and has resulted in a fundamental miscarriage of justice in this case."
“I am not a finger pointer," Morales said. "I frequently hear about instances and opportunities for improvement because no one is perfect. But when it’s time to stand up and say something because we could potentially have a safety issue, that is what this office will do.”
Cannon, the defendant in the case, had spent the last nine months in jail following his indictment on first-degree murder.
After his charges were dropped, he walked out of jail a free man Wednesday afternoon.
And Massie said he was confident Cannon won't be re-tried on this murder charge despite Friday's motion.
"I'm very confident of that because of Judge Melvin's ruling. And he did not simply dismiss the case, he dismissed the case with prejudice, so there's no mechanism for them to bring the case back," Massie said.
Following the motion, both Massie and a clerk with the court confirmed with 13News Now that the case was dismissed with prejudice on Monday.
The judge's decision comes months after a 13News Now investigation into why dozens of Hampton Roads murder cases have collapsed in court.