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Frosh urges justices to decline Frederick killer’s cold case appeal

Maryland Attorney General Brian E. Frosh. (Maximilian Franz/The Daily Record)

Maryland Attorney General Brian E. Frosh. (Maximilian Franz/The Daily Record)

Maryland’s attorney general has urged the U.S. Supreme Court not to hear a convicted rapist and murderer’s argument that his constitutional right to due process was violated during the 20-year span between the brutal slaying of a teenage girl in Frederick and his indictment and trial.

In papers filed with the justices last week, Brian E. Frosh said Lloyd Harris’ defense was not unduly disadvantaged by the time lag between Stacy Lynn Hoffmaster’s killing and Harris’ trial. Such a showing of “actual prejudice” to the defense is necessary to invalidate a trial that followed a cold case investigation and indictment, Frosh wrote.

The attorney general added that Harris has failed to show the delay resulted in a missing defense witnesses or lost evidence critical to his case.

“Although the deferral of Harris’s indictment might have exposed him to the possibility of prejudice inherent in any extended delay, the only examples of purported prejudice he identified in support of his motion to dismiss were either factually mistaken or otherwise failed to establish the requisite actual prejudice because he could not demonstrate a viable, tangible connection between the missing evidence or the unavailable witness to the defense of the case,” Frosh wrote in his brief to the justices on behalf of the state.

Frosh’s filing was in response to Harris’ request for Supreme Court review, in which his counsel argued that Maryland’s unexplained 16-year hiatus in its cold case investigation of the 15-year-old’s death undermined any true opportunity Harris had to defend himself against the charges when they were finally brought.

During those years, for example, an alternative suspect and the state’s forensic analyst had died, recordings of police interviews were lost or destroyed, multiple witnesses were unavailable and key evidence had been destroyed, wrote Harris’ lead attorney, Amir H. Ali.

Harris is urging the justices to review and overturn a Maryland appeals court ruling that his conviction was valid because he failed to show that the delay in prosecution was “a deliberate act by the government to gain a tactical advantage” and not merely the result of negligence or lack of diligence.

The high court has not stated when it will vote on Harris’ request for review. The case is docketed at the Supreme Court as Lloyd Harris v. State of Maryland, No. 20-101.

In its decision, the Maryland Court of Special Appeals said the state acted neither intentionally nor tactically in failing to indict Harris until 2016 for the 1996 rape and murder of Hoffmaster, whose body was found that year in a wooded area by a campsite.

In Harris’ request for Supreme Court review, Ali said requiring a defendant to show the delay in prosecution was intentional “violates traditional due process principles,” which focus on ensuring the defendant received a fair trial and not if the prosecution had an improper motive.

Rather, the constitutional right to due process requires courts to consider if the stated reason for the prosecution’s delay justified the harm done to the defendant’s ability to present a defense, stated Ali, of the Roderick & Solange MacArthur Justice Center in Washington.

“For example, where the prosecution delays indicting the defendant for years and even decades, and over the course of those years it slowly destroys central interviews and evidence, it makes no difference to the defendant’s right to a fair trial whether the prosecution acted with an improper motive in mind,” Ali wrote. “Put more simply, the improper-motive requirement places a daunting, almost insurmountable, burden on the accused and application of so stringent a standard would force a result we would consider unconstitutional, unwarranted, and unfair.”

Frosh, in urging the high court not to hear Harris’ appeal, said the reason for a prosecution’s delay — even if improper — is not constitutionally relevant without a showing that the time lag significantly harmed the defendant’s ability to mount a defense at the belated trial.

“The trial court’s summary treatment of the actual-prejudice prong and its comment that Harris as well as the state had, unsurprisingly, ‘suffered some prejudice’ due to the 19-year delay does not equate to a factual finding of substantial, actual prejudice,” Frosh wrote to the justices. “Rather, it is consistent with the (trial) court’s earlier observation that both parties would be affected by witnesses’ faded memories.”

Frosh’s filing was cosigned by Carrie J. Williams, who heads the attorney general’s criminal appeals division and is the state’s counsel of record before the high court in the case.

In 2017, a Frederick County Circuit Court jury found Harris guilty of first-degree murder, first-degree rape and third-degree sexual offense. He was sentenced in 2018 to life in prison.

Harris appealed his conviction to the intermediate Court of Special Appeals on due process grounds, saying two key defense witnesses died during the unexplained delay: another possible suspect and a forensic analyst who had examined the victim’s blanket.

But the Court of Special Appeals said it was not enough for the defense merely to argue it was prejudiced by the delay.

“In the present case, Harris, on appeal, does not argue that the state purposefully delayed his indictment to gain a tactical advantage over him; he does contend, however, that the abundance of prejudice resulting from the delay was sufficient to require dismissal,” Judge Lynne A. Battaglia wrote in the appellate court’s reported 3-0 opinion in October 2019. “His assertion, however, fails based upon his inability to demonstrate that the state deferred to seek the indictment to gain a tactical advantage, as required by case law.”

Judges Stuart R. Berger and Andrea M. Leahy joined Battaglia, a retired jurist sitting by special assignment. The Court of Special Appeals rendered its decision in Lloyd Harris v. State of Maryland, No. 2298, September Term 2017.

In February, Maryland’s top court — the Court of Appeals — declined without comment Harris’ request that it hear his appeal. Harris then sought review by the Supreme Court.

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