Two Mexican immigrants serving life sentences for the triple murder of their young relatives are entitled to a third trial because the Baltimore judge who presided over the second one did not disclose several notes from the jury to their defense attorneys, a split Court of Appeals held Friday.
In a 4-3 decision, the high court decided the state had not proven beyond a reasonable doubt the harmlessness of Judge David B. Mitchell’s failure to tell attorneys for Policarpio Espinoza Perez and Adan Espinoza Canela about five notes.
“The trial judge’s failure to disclose the receipt of the jury notes to counsel deprived counsel of the opportunity to have input into the form and substance of the court’s response,” Judge Clayton Greene Jr. wrote the for the majority.
The state assumed the burden of proof when it conceded Mitchell had not followed the rule which required him to “notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communications.”
Brian J. Murphy, Canela’s appellate attorney, said the top court’s opinion addressed “a matter of fundamental trial fairness — nothing to do with guilt or innocence.”
“They’re basically saying, ‘The rule’s the rule. We wrote it. It means what it says,” said the Baltimore solo who handled the case as an Office of the Public Defender panel attorney.
Phone and email messages left with the Office of the Attorney General, where Diane E. Keller handled the case on the last appeal, were not returned Friday. A spokesman for Baltimore City State’s Attorney Gregg L. Bernstein, whose office now controls the destiny of the case, didn’t reveal much more.
“We’re going to take time to carefully review the court’s decision in order to determine next steps,” said Mark Cheshire, the spokesman.
Old evidence, dead witness
Bernstein, who took office in January, is faced with the unenviable task of retrying the grisly, complicated case more than seven years after the murders.
“I’m sure they’re taken aback. It’s like their worst nightmare,” Murphy said of Bernstein’s office. “He’s got one more headache now, doesn’t he?”
Further complicating any retrial for the prosecution is that many of the witnesses in the first two trials have been deported to Mexico. And one is dead.
According to press reports, Victor Espinoza Perez, who is Canela’s father and Policarpio’s older brother, was gunned down in Veracruz, Mexico, in December 2009 — allegedly by a man hired by Victor’s wife, Guadalupe Juarez Hernandez. The status of that prosecution could not be determined Friday afternoon.
Adam Sean Cohen, one of Canela’s trial attorneys, said the allegations against the widow are “intriguing” and could be relevant to a third trial here in Baltimore since the prosecution’s case relied, in part, on cellphone records of calls between her and Policarpio Espinoza Perez on the afternoon of the murders.
“Those conversations now have a whole different complexion,” Cohen said.
A rule allowing prosecutors to use absent witnesses’ recorded witness testimony could help, the defense attorneys said.
“But I’m not sure that that rule would apply in this instance where there might not have been a full opportunity to cross-examine certain witnesses,” said James L. Rhodes, Cohen’s co-counsel at trial.
Cohen and Rhodes, who reunited to defend Baltimore police Officer Gahiji Tshamba at trial this month, were noncommittal when asked whether they would represent Canela again. On the other side, Assistant State’s Attorney Sharon Holback, who prosecuted the case the first two times, is still with the office, Cheshire confirmed.
The 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 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 summer 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.
Murphy still remembers receiving a call early in what would become the five-year appellate process from Assistant Public Defender David Kennedy, who represented Policarpio Espinoza Perez on appeal, after Kennedy discovered the large number of notes in the case file.
“He called and said, ‘Can you believe this?’” Murphy recalled Friday, prompting the two attorneys to scour the trial transcript for mentions of all those notes.
In an unusual step, the cases were remanded for a hearing on whether Mitchell had shown the notes to defense counsel. Visiting Judge Dennis M. Sweeney found that Mitchell had failed to share six notes.
Nevertheless, the Court of Special Appeals affirmed the convictions last year. While Mitchell should have disclosed all six jury notes to the defense lawyers, it held, his mistake did not affect the verdict.
The Court of Appeals disagreed, holding that the intermediate court “did not hold the State to its burden of proving the errors were harmless beyond a reasonable doubt.”
“Simply stating that the court failed to see how the outcome would be different is not the same as the court determining that the error did not influence the verdict,” Greene wrote. “Moreover, it is not the province of an appellate court to speculate as to how the defense would have reacted to the disclosure of the note in order to ascertain prejudice.”
While one of the six notes, which complained about an inattentive juror, was moot because that juror was replaced, the other five “dealt with substantive issues and cannot be deemed moot or harmless,” according to the top court.
Two of the notes asked for clarification on the number and timeline of errands run by Ricardo Espinoza Perez, father of Ricardo and Lucero and brother of Policarpio and Victor, on his way home the afternoon of the murder. Three others dealt with expert testimony on cellphone calls and DNA.
What might have been
In every instance but one, Mitchell asked the jury’s question of the witness but without explaining that it came from a jury note.
The questions about Ricardo’s whereabouts went to his credibility, the defense argued; had they known it was a juror who was curious, they might have pressed further.
And when the jury wanted to know if it was possible that a different DNA expert could come to a different conclusion about seemingly damning evidence, the defense said, they might have called another expert.
The dissenting judges, who agreed with the intermediate appellate court’s holding, pointed out that the defense attorneys witnessed the judge’s violations of the rule regarding jury notes and didn’t object, therefore precluding any appellate review.
“[T]his Court should refuse to address the merits of Petitioners’ Rule 4-326(d) argument on the ground that the inaction of Petitioners’ trial counsel — who actually witnessed the alleged violations — utterly failed to preserve this argument for appellate review,” Judge Joseph F. Murphy Jr. wrote [emphasis in the original].
Rhodes, Cohen’s co-counsel at trial, did not appreciate the suggestion.
“I think that is such an outrageous, and I mean incredibly outrageous, thing for anyone to think that lawyers in the middle of such a complex trial would’ve known to object to something that wasn’t disclosed,” he said.
“Quite frankly, it’s not incumbent upon the lawyers to make sure that the judge is complying with his duty,” Rhodes said.