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Convicted child-killers seek third trial

Policarpio Espinoza Perez

Lawyers for two Mexican immigrants serving life sentences for the triple murder of their young relatives asked the state’s highest court on Tuesday to grant them another trial, their third.

Policarpio Espinoza Perez and Adan Espinoza Canela say the second trial judge’s failure to properly disclose six jury notes was not just harmless error.

It’s an argument an intermediate appellate panel rejected last summer, affirming the convictions. But at least some of the seven Court of Appeals judges hearing the case on Tuesday seemed troubled by the effect of retired Baltimore City Circuit Judge David B. Mitchell’s handling of the notes on the defense’s presentation at trial and, ultimately, the jury’s verdict.

Other judges asked what the defense lawyers could have done differently had they known about the notes, while three of the judges did not speak during the hour-long back-and-forth in Annapolis.

Judge Joseph F. Murphy Jr., perhaps the most active questioner of both sides’ lawyers, was the first to interrupt and said the trial attorneys should have noticed the jury passing notes and asked to see them. Chief Judge Robert M. Bell clearly disagreed.

“If you get a communication from the jury, about the case, what’s the judge’s responsibility?” Bell asked Canela’s lawyer, Assistant Public Defender Brian J. Murphy. The attorney responded that the judge must notify the prosecutor and defense lawyers.

“It’s not the defense counsel,” Bell confirmed.

Judge Murphy then distinguished between notes passed from the jury room and the jury box.

“The rule doesn’t make that distinction, does it?” Bell asked.

The near-beheading of 10-year-old Alexis Espejo Quezada, 9-year-old Ricardo Espinoza Jr. and 8-year-old Lucero Espinoza shocked the region when the children’s bodies were discovered in their Northwest Baltimore apartment on the afternoon of May 27, 2004. Canela, then 17, and his uncle, then 22, were charged but no conclusive motive was ever established.

A weeks-long trial in the summer of 2005 ended with a hung jury.

A second trial the following summer featured DNA evidence, contentious attorneys, Spanish-language translators, 32 jury notes, and, after four days of deliberation, guilty verdicts.

On appeal, the cases were remanded for a hearing on whether Mitchell had shown the notes to defense counsel. Visiting Judge Dennis M. Sweeney found that the judge had failed to share six notes.

Two of the notes asked for clarification on the number and timeline of errands the children’s parents ran on their way home the afternoon of the murder. A third requested the removal of an inattentive juror, who was later replaced with an alternate after failing to show up for court. The other notes involved expert testimony on cell phone calls and DNA.

Assistant Attorney General Diane E. Keller admitted Tuesday that the jury communication problem “shouldn’t have happened” but contended “these particular notes did not affect the verdict.”

“They’re trying to set up something where the state has to prove the negative,” she said.

Doing something different

In addition to asking several technical or factual questions, Judge Sally B. Adkins wanted to hear what the defense might have done if they knew more about what the jury was thinking.

“I would have called another DNA expert,” Brian Murphy said, prompting Adkins and Judge Murphy to ask why the defense wouldn’t have done that anyway.

The lawyer called that “speculation.”

“If that’s the case, then the defendants will get post-conviction relief,” Judge Murphy rejoined.

Judge Mary Ellen Barbera suggested defense attorneys could have more thoroughly cross-examined the father of one of the children, whose testimony wasn’t always clear or consistent.

“Isn’t that at least conceivable?” she asked.

Keller said all the witnesses were on the stand a long time and that Judge Mitchell got the jury’s questions answered, even if sometimes that meant asking their questions himself without identifying the source of the curiosity.

“Isn’t it important sometimes who’s interested in what?” Bell asked.

Keller also said the notes were in the file the whole time for the defense attorneys to view.

“Well, just as I have a problem with the idea that when a lawyer sees a note passed up, he or she should, if the lawyer wants to see it, request appropriate relief, I think it’s asking much too much of lawyers defending people or lawyers litigating cases to look in the file at the end of the day or first thing in the morning to see if something got stuck in the file that they didn’t have a chance to look at,” Judge Murphy said.

The court did not give any indication of when it would decide the case, number 94 of the September 2010 Term.