Court reverses man's conviction in '94 shooting of city woman Ex-Judge Bothe chided for misleading jury

March 28, 1996|By Dennis O'Brien | Dennis O'Brien,SUN STAFF

A state appeals court yesterday reversed the attempted murder conviction of a New York man who shot a woman in 1994 as she held her 2-year-old son because the crime he was convicted of does not exist.

The Court of Special Appeals ruled that Vincent Abernathy could not be convicted of attempted depraved-heart murder because Maryland does not have such an offense.

Members of the court sharply criticized retired Baltimore Circuit Judge Elsbeth Bothe's instructions to jurors who convicted Abernathy last year, saying she misled them to think there was such an offense.

"The instruction in this case on the subject of depraved-heart murder was not only inadequate but affirmatively misleading. There is no such crime as attempted depraved-heart murder," Judge Charles E. Moylan Jr. wrote in a 15-page decision.

The ruling is not expected to win Abernathy's release, however, because it upheld his convictions on battery and handgun charges.

Judge Bothe sentenced Abernathy on April 3 to 25 years on the attempted murder charge, a concurrent 20-year term on the battery charge and three years for a handgun violation.

Abernathy critically injured Jacklyn Holiday as she was holding her son, Michael Jerome, and waiting for a bus about 1: 30 p.m. Feb. 6, 1994, near Milton Avenue and Biddle Street.

Abernathy had been in jail before the shooting, awaiting trial on cocaine distribution charges. But he was released the previous September at the request of prosecutors, Baltimore police and federal Drug Enforcement Administration agents.

Police would not comment on reasons for Abernathy's release, but suspects often are given such treatment when they have agreed to cooperate in investigations.

Pub Date: 3/28/96

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