… Serving life sentences, two men could face third trial …
By Nick Madigan, The Baltimore Sun
11:41 PM EDT, June 17, 2011
Maryland’s highest court overturned the convictions of two men who were found guilty of the murders of three children in a Northwest Baltimore apartment seven years ago, ruling Friday that the trial judge made mistakes that prevented the defendants from receiving a fair trial.
In a 4-3 decision, the Court of Appeals said that Baltimore Circuit Judge David B. Mitchell had failed to disclose to attorneys the contents of five “substantive” notes from jurors in the course of the defendants’ second trial in 2006. Their first trial ended in a hung jury.
The decision reopened a case whose gruesome nature and raw violence horrified the city, raising the possibility that justice will not come for the three elementary school students who were nearly decapitated by their attackers.
Defense lawyers argued that had they known what the notes said, they might have altered their trial strategy. Jurors had sent a total of 28 notes to the judge during the two-month trial in Baltimore Circuit Court.
Policarpio Espinoza Perez and Adan Canela were convicted of slashing the throats of three young relatives on May 27, 2004. The men are serving life sentences, and city prosecutors said Friday they had not decided whether to try the case a third time.
“We will carefully review the court’s opinion before determining the next steps taken by our office,” said Mark Cheshire, a spokesman for the Baltimore state’s attorney office. Neither Sharon Holback, who prosecuted the defendants, nor Patricia C. Jessamy, the state’s attorney at the time, could be reached for comment.
Any attempt to try the men again could face considerable obstacles. Most of the witnesses, many of them relatives of both the defendants and the victims, were deported after the second trial or have voluntarily left the country. Some did not cooperate with police during the investigation into the crimes and flatly said in court that Canela and Espinoza were innocent.
If the state decides not to go for a third trial, the men — illegal immigrants from Veracruz, Mexico — are likely to be deported. Defendants generally remain incarcerated until prosecutors decide whether to try them again.
The victims were Lucero Espinoza, 8; her brother, Ricardo Espinoza, 9; and their cousin, Alexis Espejo Quezada, 10. The defendants were questioned several hours after the discovery of the bodies and gave inconsistent statements as to their whereabouts at the time of the children’s deaths. In the home the two men shared, police found a pair of blue jeans with what looked like bloodstains. Officers found gloves and another pair of jeans in Policarpio Espinoza’s car, all with signs of blood. DNA analysis later linked the items to the murders, for which no motive was ever ascertained.
The defendants each received two consecutive life terms without parole for first-degree murder, a consecutive 30-year sentence for second-degree murder and a concurrent life sentence for three counts of conspiracy to commit murder. The Court of Special Appeals later upheld the convictions, saying that the errors at issue “had no impact whatever on the jury’s verdicts.” The defense then appealed to the higher panel.
During a hearing before the Maryland Court of Appeals in March, lawyers for the defendants argued that the defense might have adjusted its trial strategy if Mitchell had shared all the jury’s questions. But an assistant attorney general countered that the judge’s error was harmless, given what she considered strong evidence tying Espinoza and Canela to the murders.
During the course of 2006 trial, Mitchell had allowed the jury to ask questions about substantive topics, well beyond the typical requests for bathroom breaks and other mundane matters — an unusually permissive move. At issue in the appeal were several notes that were the basis of Mitchell’s questions to witnesses, although lawyers did not know that at the time, and one in which some jurors asked that Mitchell dismiss another juror they claimed lacked concentration and was “nodding” during testimony.
“Two men’s lives are at stake and we believe they deserve a fair trial,” the jurors wrote of their colleague. That juror was replaced with no public explanation, although in the ruling issued Friday the appeals panel concluded that the matter did not prejudice the outcome of the trial.
But in a reference to five other notes sent to the judge, the appeals court agreed with the defense’s contention that the errors “were hardly harmless,” in that they “reflected precise and important substantive concerns the jury had with evidence at the trial.” Lawyers working on the case were entitled “to know that the jury had asked these questions so that counsel could use this information about the jury’s concerns to adjust their trial strategy” or to pose additional questions to witnesses, the appeals judges said.
“We agree with the petitioners that the trial judge’s failure to disclose to counsel the origin of the five substantive questions, four of which the judge posed to witnesses at trial, was not harmless beyond a reasonable doubt,” the judges wrote.
Two of the notes asked for clarification of the testimony of Ricardo Espinoza Perez, the father of two of the children, about his actions on the afternoon of the killings. In their appeal, the defendants contended that Mitchell’s questions to witnesses about those actions “did not clear up the matter satisfactorily” and that if the defense lawyers “had known the questions came from a juror, rather than just from the trial judge, they may well have pressed the matter further.”
Another note from the jury asked about a point made in the testimony of an engineer for Sprint, the communications company, about cellphone calls between family members around the time of the killings. The other two questions were about DNA evidence, and prompted the observation on appeal that had they known the notes had come from the jury, the defense attorneys “would have been more likely to call a defense DNA expert to counter the state’s experts.”
The defense argued that the lower appeals court’s ruling, which upheld the convictions, “totally dismisses the importance to trial counsel of having information about what the jury is thinking.”
In a dissenting opinion, three of the higher court’s judges agreed with the conclusion of the lower panel, which said that defense lawyers had observed during the trial “that notes were coming from the jury foreperson and being given to the judge” and that “at no time did counsel object to the process by which Judge Mitchell was handling jury notes.” Moreover, the lower court’s ruling said, all the notes were being kept by the judge’s clerk as part of the court record, and the defense lawyers could have asked to see them at any time.
Since the defense lawyers did none of those things, “this court should hold that petitioners’ right to review notes coming out of the jury box was waived,” the dissenters said.
Adam Sean Cohen, one of two attorneys who represented Canela at trial, declined to address specific objections to how the trial had been conducted other than to say it had been unfair to his client.
“When you walk away from a trial, you may not agree with the verdict or the result, but if the trial was fair, you can stomach it,” Cohen said. “But if you glance back, if you look over your shoulder, and the trial wasn’t fair, it’s impossible to stomach it. The Court of Appeals determined what was contended, that he did not get a fair trial.”
Cohen said the errors committed by the trial judge were not apparent at the time. “We didn’t know that jury notes weren’t disclosed to us,” he said. “That came to light during the appeals process.”
A new trial is unlikely, Cohen said, for several reasons, not least that most of the witnesses are no longer available. Adding to the complications, Espinoza’s brother, Victor, who was also Canela’s father and a cousin of the dead children, was shot to death in Mexico after leaving Baltimore.
His wife, Guadalupe Hernandez, with whom he was living in Baltimore at the time of the children’s deaths, has been charged with orchestrating Victor Espinoza’s killing in a murder-for-hire scheme.
The charges against Hernandez in Mexico, Cohen said, cast doubt on the convictions of the two men in Baltimore. Cohen suggested that, given the crime with which she is accused in Mexico, Hernandez should be considered a possible suspect in the deaths of the two children.
“Guadalupe Hernandez has done that type of act,” Cohen said. “You have an individual who has demonstrated the mind-set, the wherewithal, to orchestrate something like that. In fairness, it may not have anything to do with it, and it may just be a horrible coincidence.”
Copyright © 2011, The Baltimore Sun