David B. Irwin was in the midst of an animated cross-examination of the lead investigator into the disappearance of Tracey Gardner-Tetso when he paused. He sat down and thumbed through the documents he was about to give Detective Philip G. Marll.
“I take no joy in doing this,” Irwin said quietly.
What followed has led prosecutors to call additional witnesses in their murder case against Dennis Tetso on Monday in Baltimore County Circuit Court, rather than rest Friday as they originally intended. It also led Irwin to argue, unsuccessfully, that the case against Tetso should be dismissed due to prosecutorial misconduct and due process violations.
Irwin, of Irwin, Green & Dexter LLP in Towson, alleged Marll gave perjured testimony related to the search of Gardner-Tetso’s car on March 17, 2005, the day it was recovered in a Glen Burnie parking lot. Tracey Gardner-Tetso, Dennis Tetso’s wife, has not been seen or heard from since March 6, 2005, when the 32-year-old was supposed to attend a Mötley Crüe concert in Washington, D.C.
Marll testified Thursday under direct examination that he inspected the car’s interior that afternoon at police headquarters after receiving keys from Tetso.
But Irwin, during his cross-examination Friday, produced a police report showing officers used a wire hanger to open the car in the parking lot that morning. Marll said that might have happened but he did not see it, a fact Irwin challenged because of Marll’s role as lead investigator.
“He lied. He deceived,” Irwin said, calling the detective’s testimony “malicious.”
Garret Glennon, an assistant state’s attorney, called Irwin’s motion “ridiculous” and said Marll was not present when the wire hanger was used and forgot about the police report amid the thousands of documents he amassed in the case.
“Prosecutors would be in big trouble if cases were thrown out every time a detective forgot something,” Glennon said.
Judge Patrick Cavanaugh denied the defense motion while acknowledging “things might be different” had the case been a non-jury trial.
“The jury is the trier of fact,” Cavanaugh said. “The jury judges the credibility of the witnesses.”
Irwin was in near-constant motion during his 90-minute cross-examination of Marll; at various points, he slammed his glasses on the defense table and angrily stomped toward the gallery, the latter move leading to a bench conference.
In calmer moments, Irwin got Marll to tell jurors that police found no forensic evidence tying Tetso to a possible crime, and that Tetso’s conflicting stories to police in the days immediately following his wife’s disappearance make up part of the case against him.
But Irwin angrily raised his voice when discussing the police report detailing the parking lot search of the car.
“Is this true or is this a lie?” Irwin asked. “You had an amazing, photographic memory [Thursday]. You don’t remember this?”
“I do now,” Marll replied.
Over prosecutors’ objections, Irwin admitted into evidence a portion of a 2002 Court of Appeals opinion that describes Marll as “nimbly sidestepping complete and accurate responses” in testimony during another murder trial. The high court overturned a death penalty conviction in that case, Conyers v. State, finding that prosecutors failed to disclose evidence in violation of the defendant’s due process rights.
Marll said he was not aware of the Court of Appeals ruling until Friday.
Irwin said Friday during a recess that he would wait until the state presented its case before deciding whether Tetso would testify in his own defense.