Convicted murderer could get actual-innocence hearing, Md. high court says

A man convicted nearly 25 years ago in the felony murder of two people in a Catonsville barbershop will likely get another chance to argue his innocence after a prosecution witness stated he had given false testimony.

In a unanimous decision, Maryland’s top court last week cleared the way for Jeffrey D. Ebb Sr. to petition the trial court again for a hearing on his claim of actual innocence in light of the recanted testimony. Ebb would be entitled to a hearing if a Montgomery County Circuit Court judge determines that permitting Ebb to amend an earlier petition would do “substantial justice,” the Court of Appeals stated.

The high court added the “newly discovered” evidence – the recantation – could point toward Ebb’s innocence.

At the 1993 trial, Jerome House-Bowman testified that Ebb told him he had sought to rob Brodie’s Barbershop in November 1992 but that “it got fouled up and (he) had to shoot two people.”

Those killed in the shooting were James Ernest Brodie, a 58-year old retired school custodian who operated the shop, and Michael Selwyn Peters Jr., a 20-year-old whose hair Brodie had been cutting, according to a Baltimore Sun report at that time.

House-Bowman’s testimony led to Ebb’s conviction on two counts of felony murder, one count of attempted murder, one count of attempted armed robbery and three counts of first-degree assault. He was sentenced to life in prison without the possibility of parole.

But House-Bowman’s signed statement in 2003 that he “lied” at the trial to save his niece – who confessed to having participated in the robbery – from further prosecution could likely result in a belated verdict of not guilty for Ebb, the Court of Appeals said.

“At this stage of the proceedings, it is reasonable to infer that Mr. House-Bowman’s statement that he lied in court … was a reference to his testimony regarding statements (Ebb) allegedly made to him about robbing the barbershop,” Judge Michele D. Hotten wrote for the high court. “Assuming… that such an inference is true, then the state would have had greater difficulty proving (Ebb) intended to rob the barbershop. Without evidence of a robbery, the felonious component of the felony-murder convictions would also be in jeopardy, thereby creating a substantial or significant possibility that (Ebb’s trial) may have been different.”

Petition language

The circuit court had rejected without a hearing Ebb’s petition for writ of actual innocence, concluding in 2015 that House-Bowman’s recantation was “impeaching” and not “material” evidence and that eyewitnesses had placed Ebb at the crime scene.

But the intermediate Court of Special Appeals ruled last May that Ebb was entitled to a hearing based on his petition, though it failed to state expressly that he was claiming actual innocence.

The state then sought review by the high-court, which vacated the Court of Special Appeals’ decision.

The Court of Appeals said Ebb’s petition failed to comply with Maryland rules requiring that petitions contain a clear statement of actual innocence. The court added the petition could be redrafted to include the clear statement but that it would be the circuit court’s decision on whether to hold a hearing to achieve “substantial justice.”

The Maryland attorney general’s office said Tuesday that it “was pleased that the Court of Appeals reiterated that petitions for writs of actual innocence are for claims of actual innocence, not assertions of procedural error. We were, however, disappointed that the court held that Mr. Ebb’s reference to an unsworn, non-specific change of heart by a witness, 20 years after the fact, was sufficient to plead the existence of newly discovered evidence that could create a substantial possibility of a different outcome at trial.”

Assistant Maryland Public Defender Samuel Feder, Ebb’s appellate attorney, did not return a telephone message seeking comment Tuesday.

 ‘Affirmatively assert’

Judge Robert N. McDonald wrote a concurring opinion in which he sought “to emphasize the significance of the requirement” that petitioners “affirmatively assert” their “actual innocence” in their petition. A mere statement of having been “wrongfully convicted,” as Ebb’s petition had stated, is an insufficient pleading that must be amended, McDonald added.

“This might to be considered a fine point, but it goes to the heart of a statute that allows for a writ of actual innocence,” McDonald wrote, referring to the Maryland Criminal Procedure Article. “A criminal defendant has the right to put the state’s evidence to the test and, if that evidence was obtained in violation of the Constitution or if there is some other serious defect with the prosecution, may quite correctly assert that he was ‘wrongfully convicted’ and obtain reversal of a conviction. But that is a far cry from actual innocence.”

Judge Shirley M. Watts joined McDonald’s concurrence.

The Court of Appeals issued its decision in State of Maryland v. Jeffrey D. Ebb Sr., No. 40 September Term 2016.