DNA evidence admissible at trial in Kenneth Harris murder 

Posted: 8:30 pm Mon, August 30, 2010
By Brendan Kearney
Daily Record Legal Affairs Writer

The judge presiding over the case of three young men accused of murdering former City Councilman Ken Harris denied motions to suppress DNA and photo identification evidence Monday, representing a decisive pretrial victory for the prosecution in the September 2008 shooting outside a Northeast Baltimore jazz club.

DNA evidence, which is crucial to the prosecution’s case because the perpetrators’ faces were covered during the robbery-turned-killing, is “as solid as it gets,” one defense attorney admitted at one point.

“Juries love that,” Jason Silverstein, who is representing Charles McGaney, said toward the end of the daylong hearing. “That’s the whole ‘CSI’ effect, your honor. They eat that stuff up.”

Despite impassioned argument from Silverstein and Janice Bledsoe, the defense counsel for Gary Collins, retired Judge David Ross was unmoved. The jury that will be picked this week will hear how DNA from 22-year-old McGaney, 21-year-old Collins and 17-year-old Jerome Williams was found on clothing linked to the crime.

The most anticipated ruling, which brought a row of people from the State’s Attorney’s office, among others, to watch, was whether the warrant to collect McGaney’s DNA in late October 2008 was valid since it was obtained as part of a separate year-old murder investigation in which McGaney seemed to have been ruled out as a prime suspect.

Police suspected McGaney’s involvement in the Harris shooting, but they did not have probable cause to arrest him and see if his genetic fingerprint matched any of the profiles collected from the scene at the Northwood Shopping Center, Silverstein said. So, the detectives investigating the Harris case met with the detective assigned to the Nov. 5, 2007 murder of Terrence Regan — McGaney was seen running from the scene of that shooting and was questioned a few times but not charged.

Det. Robert Dohony’s affidavit in support of the warrant application to Judge Videtta A. Brown did not mention the Harris case, however. Silverstein said this was “just a little underhanded” and a violation of Franks v. Delaware, a 1978 U.S. Supreme Court case dealing with evidence gathered after a warrant is granted on the basis of a false statement. Alleging misrepresentations and material omissions, Silverstein wanted to put Dohony, who was waiting outside the courtroom, on the stand.

Assistant State’s Attorney Cynthia Banks said there is no requirement that police “put in their motive” and that what the detectives did in the Harris case was “perfectly legal.” Judge Ross, speaking softly in the downtown courtroom, agreed.

“There is nothing intentionally omitted that would change that probable cause,” Ross said. “The law does not require the applicant…disclose all of the evidence in the case.”

Andrew C. White, a former federal prosecutor now in private practice in Baltimore, said Ross got it right but that the issue might ultimately reach resolution in Annapolis.

“I think the judge is absolutely correct, even if the police officer harbored a second, unstated purpose for wanting the DNA,” White said. “Although a court of appeals might take issue with the tactics used by the detective,” he later added.

Harris, 45, was shot as he fled from the closing-time robbery at the New Haven Lounge and collapsed in his car as he was driving away.

The other DNA-related motion was Silverstein’s attempt to keep from the jury the fact that McGaney’s DNA was found on latex gloves, a bandana and a jacket found along a road that runs behind the strip mall.

Silverstein said it is “clear as day” from video stills shot inside the New Haven Lounge just after midnight on Sept. 20, 2008 that the handgun-wielding robber alleged to be McGaney was not wearing any of those items. He said the clothing found in trash cans along nearby Sheffield Road is therefore as relevant as any other random clothing found in the vicinity of the mall.

But Banks countered that some of the gloves and a bandana were found in a purse the robbers took from a patron of the bar that night that turned up the next day in a neighborhood trash can.

“All this is part and parcel of the offense that occurred,” Banks told a receptive Judge Ross. “Yes, it is relevant.”

Ross also denied Bledsoe’s motion to limit a mall security guard’s photo identification of Collins, which was in part based on Collins’ alleged peculiar gait, as seen in a surveillance video.

Ross said he thinks “the whole thing can wait” until trial.

That motion produced a bit of heat between the attorneys when Homicide Division Chief Donald Giblin cited a case that he had not told the defense attorneys about. Bledsoe asked for a copy before Giblin compared it to the evidentiary issues in the Harris murder.

“It’s my research,” Giblin told Bledsoe. “You do your research.”

Notable members of the gallery Monday included Clerk of Court Frank M. Conaway and City Council President Bernard C. “Jack” Young, who served on the council during Harris’ two terms.

“I just wanted to come and show support for the family,” said Young, who knows Harris’ widow and mother. “[Harris] was a personal friend of mine…a great guy, and I’ll miss him very much.”

Judge Ross will hear two more suppression motions Wednesday, and jury selection in the closely-watched case is scheduled for Thursday.