Man goes free after FBI loses evidence

Jace Radke

Tuesday, March 15, 2005 | 11:01 a.m.

Lila Carter watched in shock Monday as the man who two years ago shot and killed her grandson walked out of the George Federal Building a free man.

"I know I can't bring my grandson back, but I believe this man does not belong on the streets," Carter said of John Wesley Whittington, who was sentenced Monday on a charge of felon with possession of a firearm after federal prosecutors dropped murder charges against him.

Whittington was originally charged with the July 26, 2002, slaying of David J. Flores on the downtown reservation of the Las Vegas Paiute Tribe.

The loss of an important piece of evidence by the FBI and a change in the testimony of a key government witness led the U.S. attorney's office to drop the murder charge and seek the lesser charge of felon in possession of a firearm.

U.S. District Court Judge Robert Jones sentenced Whittington to 27 months in prison, a $30,000 fine, 100 hours of community service and three years of supervised release. Whittington has already served his 27 months in jail awaiting trial prior to the murder charge being dropped.

"I don't think I'm going to do justice here today, and I do think Mr. Whittington deserves a longer sentence," Jones said as he issued his sentence.

Jones said that he felt bound by the plea agreement, which explicitly stated that Whittington would be sentenced according to federal guidelines, though Jones did have the option of refusing the plea.

The maximum sentence for felon with possession of a firearm is 10 years, but the guidelines, which take into account criminal history and provide a sentencing range, called for Whittington to be sentenced to between 21 and 27 months in prison.

If Jones departed from the guidelines and handed down a harsher sentence it would have been grounds for Whittington to withdraw his plea, both Federal Public Defender Franny Forsman and Assistant U.S. Attorney Karyn Kenny said.

Whittington, 45, who has a previous felony drug conviction and a long list of other drug and domestic violence offenses, was originally indicted on a charge of fatally shooting 22-year-old Flores about 11 p.m. on Sackett Street near Paiute Drive on the reservation.

Whittington, who is not a Paiute, was inside a trailer on the reservation where his friend's girlfriend lived, law enforcement officials said. The girlfriend had been in a fight earlier in the day with a woman who also lived on the reservation.

Flores, who was related to the the neighbor woman, went to the trailer Whittington was in and was shot and killed him, according to court documents.

"My grandson went to ask a question about what had happened earlier and he was shot," Carter said. "He (Whittington) doesn't even belong on the reservation."

Whittington told FBI agents that he shot Flores in self-defense. He said Flores attempted to force his way into the trailer and reached for something in his waistband, prompting Whittington to shoot Flores with a revolver, investigators said.

Flores did not have a gun, and was found outside the trailer.

FBI investigators had planned to test the T-shirt Flores was wearing when he was killed for gun-powder residue. If there were residue on the shirt it could have shown if the victim were as close to Whittington as the story of the attempted break-in would suggest.

FBI spokesman Special Agent David Schrom said that the bureau had no comment on the case, and Natalie Collins, a spokeswoman for the U.S. attorney's office for the District of Nevada, said that the government's sentencing memorandum explained her office's position.

The memorandum states that Flores' shirt was lost and that "the evidence cannot be located."

Because the shooting happened on an Indian reservation the FBI took charge of the investigation rather than Metro Police, which routinely handles scores of homicide investigations every year.

Jones said that he feels Whittington is a violent man and that he deserved some kind of permanent supervision.

"Without the shirt and the lack of witnesses the government feels it can't prove without a reasonable doubt that self-defense didn't occur," Jones said.

Jones said that Whittington owes back child support of $30,000 and that the mother of one of his children has a temporary restraining order against him.

"He (Whittington) is a drag on society, that's for sure," Jones said.

Whittington did not speak on his own behalf at the hearing and quickly left the courtroom following Jones' sentence.

Carter said that she thinks about her grandson every day.

"I raised him up from a baby," Carter said. "I raised him up the Indian way and taught him not to steal or lie.

"Every time I look at his picture I just cry and wonder what he would have been doing now."