Convicted child killers seek a third murder trial 

Posted: 7:57 pm Tue, November 3, 2009
By Brendan Kearney
Daily Record Legal Affairs Writer

ANNAPOLIS — Appellate attorneys for two Mexican immigrants serving life sentences for murdering their three young relatives argued Tuesday that the trial judge’s failure to properly disclose six jury notes entitles the men to another trial.

The defense lawyers for Policarpio Espinoza Perez, now 27, and Adan Espinoza Canela, now 22, contended retired Baltimore City Circuit Judge David B. Mitchell’s erroneous handling of the notes effectively denied the uncle and cousin of the three butchered children a fair trial.

Assistant Attorney General Diane S. Keller conceded the errors but argued they were harmless and did not affect the verdicts.

Throughout the hour-long session at the Court of Special Appeals in Annapolis, the three-judge panel questioned what the defendants’ trial counsel would have done differently had they known about the notes and whether Mitchell’s mistakes warranted a third trial in the case.

“With all due respect to all the court’s questions about what could have happened, that’s the problem here,” said Brian J. Murphy, who is representing Canela. “There’s an innumerable number of could haves, would haves, maybe might haves … .”

The beheading or near-beheading of 10-year-old Alexis Espejo Quezada, 9-year-old Ricardo Espinoza Jr. and 8-year-old Lucero Espinoza shocked the city when their bodies were discovered in their Northwest Baltimore apartment on the afternoon of May 27, 2004.

The Cross Country Elementary School students and the men convicted of hacking them to death were all members of a family originally from the Gulf state of Veracruz, according to press reports at the time. No conclusive motive was ever established for the murders — there was speculation that it was the result of unrequited love or money owed — and family members believed various people other than the defendants committed the crimes.

A weeks-long trial in the summer of 2005 ended with a hung jury. A second weeks-long trial the following summer featured DNA evidence, contentious attorneys, Spanish-language translators, 32 jury notes, and, after four days of deliberation, guilty verdicts.

Before hearing oral argument, the Court of Special Appeals asked another retired circuit judge, Dennis M. Sweeney, to hold a hearing to determine which of the jury notes the trial lawyers saw. After a three-day proceeding in January, which included testimony from the key participants in the 2006 trial, Sweeney found in April that the defense lawyers did not know the jury had asked about DNA evidence and what “received” means in the context of cell phone calls, or that they expressed concern about a dozing juror.

According to a Maryland rule, the trial judge must turn over jury notes to defense counsel as “promptly as practicable.” Cases previously decided by the state’s appellate courts have overturned verdicts for not following that rule, argued Assistant Public Defender David P. Kennedy, who is representing Perez.

“An implicit function and purpose of the rule is to allow attorneys to know what the jury is thinking,” Kennedy said yesterday.

Kennedy said the trial lawyers — Adam Sean Cohen and James Rhodes for Canela, and Assistant Public Defender Nicholas Panteleakis for Perez — may have changed “their strategy” or “the focus of their presentation to some degree,” by, for example, calling a DNA expert to address the jury’s question about the possibility of varying opinions of the same reports.

Keller said that unlike the cases the defendants’ appellate attorneys relied upon, there is now record in this case of how each jury note was handled.

“The notion that somehow the verdict in this case would have been different … it makes no sense,” she said.

On the contrary, Murphy suggested, in a case where the jury “struggled” to reach a “reluctant verdict,” one could not be as sure that the result would have been the same if defense counsel had more knowledge of the jury’s concerns.

Cohen, who attended Tuesday’s argument, compared not having access to jury notes for a defense attorney to “sensory deprivation” and said it is grounds enough for a third trial. He said he has not decided whether he would represent Canela again if given the opportunity but added that his conscience might compel him.

“I believe in the case,” he said. “I believe in Adan’s innocence.”