Wilenchik's remand motion says Mangone and Trombi both told the grand jury that the AC was working all night long.
For example, check this passage from the remand motion:
In fact, the SRP Report clearly shows that the air conditioning went off that night, and even SRP itself supports this.The State's main witness, Detective Marie Trombi, not only provided false testimony to the grand jury twice about this under questioning by the prosecutor, but she provided false testimony when a grand juror asked her about this issue directly, almost immediately after she finished testifying:
GRAND JUROR: I'd like to clarify also. So the air was working and on until 5:30 that morning when he tried to fix it, Austin Flake tried to fix it, correct? That's what SRP said? THE WITNESS: That's going by the SRP records, yes. GRAND JUROR: That it was on? THE WITNESS: It was on, all night. GRAND JUROR: All night? THE WITNESS: All night. GRAND JUROR: Thank you.
Further, the State had a report from its own engineering expert which stated that it was "very likely" that the HVAC unit froze, "render[ing] the unit completely ineffective." However, when asked by the prosecutor whether that same report showed that the air conditioning was working, Detective Trombi failed to disclose that the engineer reached this conclusion. Instead, she provided false testimony to the grand jury once again by testifying that the report showed that "[i]t was working."
At his regularly-scheduled press conference Wednesday morning, Montgomery did not dismiss out of hand the allegations in Wilenchik's remand request.
"It's not unusual to see some of these facts called into question," he said. "We are taking a look at the records that form the basis of the motion to remand and ask for a re-determination of probable cause.
"We have an obligation as prosecutors that if the defense brings forward information that they think is dispositive for the charges that their clients are facing, for us to take a look at it and assess the impact to the case that we've put together."
I asked Montgomery why his prosecutor didn't give the SRP report to the grand jurors.
"The records could have been available if they'd asked for them," he answered. "But in presenting information to the grand jury, typically results are summarized for their consideration, and we don't always present all the records available."
But if the prosecutor knew what the SRP report said, why wouldn't he or she correct the state's witnesses?
"If it was a very glaring error," said Montgomery, "and the prosecutor was aware that there was a mistake of fact that was being presented...I don't know, standing here in front of you, if it was just a simple oversight or if the witness knew affirmatively what the data showed and gave a different characterization."
Montgomery said his office now will "take a hard look" at the motion and see if "mistakes were made."
Still, Montgomery left himself some wiggle room.