Ruling On Possible New Sherman Trial Expected Soon Defense Claims Judge Rushed Jury To Verdict

October 28, 1990|By Alan J. Craver | Alan J. Craver,Staff writer

A Baltimore County Circuit Court judge is expected to decide soon whether convicted killer Timothy S. Sherman should get a new trial.

Judge Dana M. Levitz is reviewing petitions filed two weeks ago by Sherman's attorneys, Stuart J. Robinson and Michael Bromwich, that contend he did not get a fair trial because of "judicial misconduct."

Bromwich and Robinson contend that Harford Circuit Court Judge Cypert O.

Whitfill rushed the jury to deliver a verdict in Sherman's June 1988 trial because of concerns over a hung jury.

"The case focuses on allegations of judicial misconduct and could lead to overturning the judgment in the most highly publicized case over which Judge Whitfill has presided during his seven-year judicial career," Bromwich and Robinson say in their 51-page petition.

The attorneys also claim that Whitfill was not living in Harford County at the time of Sherman's June 1988 trial, making him ineligible to preside over the proceedings. In their court documents, the attorneys do not say where they believe Whitfill was living at the time.

"As a consequence, each of Judge Whitfill's actions in presiding over Timothy Sherman's trial was and is a nullity, and a new trial should be ordered," the attorneys argue.

In the state's response, Assistant State's Attorney Diana A. Brooks argues that the request for a new trial is based on testimony "unquestionably motivated toward fabrication and contrivance."

"All the eyes of Harford County were fixed on the Sherman trial, so for the judge to have chosen this trial to engage in unquestionably improper conduct would have been pure insanity, and insane Judge Whitfill is clearly not," Brooks wrote in the state's response.

She did not respond to the issue of Whitfill's residency during the Sherman trial. Bromwich and Robinson raised the residency issue in court papers filed Oct. 15, after Brooks' report was already filed.

Sherman, now 21, is serving two consecutive life sentences for the murders of his parents, Elizabeth and Stevenson.

They were shot to death with a shotgun Oct. 12, 1987, while sleeping in their home north of Bel Air.

Sherman was convicted of two counts each of murder, attempted murder and assault with intent to murder after a highly publicized two-week trial that ended June 7, 1988.

The petitions were filed last May after another request for a new trial was denied in September 1988 and his conviction was confirmed by the state Court of Special Appeals in May 1989. They were filed under the state Post Conviction Relief Act by Bromwich of Washington, and Robinson of Bel Air.

Robinson is Sherman's uncle.

The petitions were filed in Baltimore County after Harford's four circuit judges removed themselves from the case. A hearing in the case was held before Levitz on Oct. 3.

Bromwich and Robinson filed briefs two weeks ago outlining their case, which is based on statements made by four jurors. The attorneys allege that Whitfill went to the jury room after deliberations started and told the jurors that he did not want a hung jury.

Whitfill expressed concerns to the jury over the cost of long deliberations and a second trial, the petition says.

Bromwich and Robinson also argue that Whitfill answered a question asked by the jury on the difference between first- and second-degree murder without notifying attorneys in the case that the jury had asked the question.

Bromwich and Robinson note that three jurors -- Sadie Hose, Michaelene Derka and Patricia Dowdy -- gave slightly different stories, but all said Whitfill came to the jury room after deliberations started.

Whitfill testified at the Oct. 3 hearing, denying that he had gone to the jury room and talked about a hung jury. He admitted that he had talked to the jurors about scheduling deliberations and sequestration before the trial ended.

But Bromwich and Robinson question Whitfill's testimony.

"Other than (Sherman) . . . Judge Whitfill has the most at stake in this matter," Bromwich and Robinson wrote. "Thus, there is no other witness in this case with a more substantive interest in defeating the allegations in this case than Judge Whitfill."

But Brooks countered that the testimony of two jurors, Derka and Dowdy, was based on their desire to be freed of guilt they feel for sending Sherman to prison.

"Both stories are the product of fabrication and contrivance aimed at obtaining a new trial for (Sherman) so that these women can be let off the hook and relieved of their responsibilities of sending a young man to prison for the rest of his life," she wrote.

Brooks notes that Hose referred to deliberations in her statement as all the times during the trial that the jurors were not hearing testimony.

Hose's statement corresponds with Whitfill's testimony that he visited the jury before deliberations started, Brooks wrote.

A fourth juror, foreman David Brennan, was called as a witness by Sherman's attorneys, but his testimony supported Whitfill and contradicted the allegations, Brooks said.

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