Tywin Marcell Bender, 18, of Minneapolis, was one of two teens charged in September's gang-related shooting that left a 12-year-old girl, Vernice Hall, wounded by a bullet to the head. Vernice, now 13, survived but suffered permanent brain damage. The other teen charged, Semaj Marquise Magee, 17, was tried in May; a jury acquitted him. Prosecutors claimed afterward that key witnesses changed their testimony from their original statements. At the time, Hennepin County Attorney Michael Freeman said gang intimidation might have caused witnesses not to implicate Magee in the crime. Freeman said Friday that when prosecutors took measure of their evidence — and the witnesses' changed stories — they determined they didn't have enough to prove their case beyond a reasonable doubt at Bender's trial, scheduled to start Aug. 5. "We're disappointed," he said. "It's a reluctant conclusion that came from reluctant witnesses changing stories. "These gang cases are really hard," Freeman said. "It's not like we've got witnesses from Central Casting that are Sunday-morning church choir members. The folks who witnessed this shooting have proven to be very unreliable witnesses."
Bender walked out of the Hennepin County Adult Detention Center at 4:15 p.m. Freeman said if evidence turns up that witnesses were intimidated, new charges could be filed. Asked if he still believes Bender and Magee were involved in the shooting, the prosecutor answered an unequivocal "yes."
"That really hasn't changed," he said.
'I Am Gonna ... Shoot This Party Up' / Vernice, known by friends and family by her nickname, "Star," was shot in the 1800 block of Oliver Avenue North as her brother's birthday party was breaking up Sept. 22. Bender — identified in court documents as a member of a gang that calls itself the Stick Up Boys, or SUBs — had gotten into an argument with other people at the party who were members of a rival gang known as the Murder Squad or the 19s.
"You all better clear out because I am gonna come back and shoot this party up," Bender told the crowd, according to the criminal complaint filed against him.
He left the party. Witnesses said that about an hour later, a black sport utility vehicle pulled up to some partygoers still milling about in the street. Bender and Magee were in the vehicle, witnesses said.
Police said witnesses told them Bender climbed out of the vehicle with a handgun, while Magee was holding a shotgun when he got out. Magee allegedly fired first, then again, and Bender fired about 20 rounds before they got into the SUV and fled.
After police said witnesses gave them the teens' names, the two were arrested. Questioned by police, Bender claimed he didn't hang out with the SUBs anymore, and he denied being involved in the shooting.
Among witnesses police interviewed was one who said he was riding a city bus the day after the shooting and heard people talking about it.
The purported witness "heard one of the young men brag that he got into it with gang members and he got out of the car and started 'busting' into the crowd," the criminal complaint against Bender claimed. "The young man said that 'they' said he shot a little girl." Bender faced four counts of attempted murder, two counts of first-degree assault, 12 counts related to being involved in a drive-by shooting and a single count of being a prohibited person in possession of a gun.
The last charge was filed because Bender was ruled delinquent in December 2006 after being convicted of a robbery. 'We Can't Prove It' / In a two-page petition filed in state court, prosecutors noted Magee's acquittal and said that in his trial, "witnesses crucial to this case testified in a manner inconsistent with previous statements and/or testimony."
"Despite due diligence by investigators in the case, further investigation has failed to reveal relevant and admissible evidence that would support a conviction after a jury trial of this defendant," Assistant County Attorney Susan Crumb wrote of Bender. She did write, though, that a dismissal "will permit the State to continue to investigate and discover additional evidence and locate additional witnesses." Freeman said he believed the witnesses had been intimidated.
"We can't prove it," he said. "If we had really strong leads about who did it and how it happened, well, we've brought cases more than once before on witness intimidation. But we've got to have proof beyond a reasonable doubt."