Prosecutor will retry murder case Court overturned 1993 Hagez conviction

September 10, 1996|By Caitlin Francke | Caitlin Francke,SUN STAFF

State's Attorney Marna McLendon says her office will retry a man accused of killing his then-ex-wife's boyfriend -- after a state appeals court overturned the conviction, ruling that prosecutor Christine Gage's "pervasive" improper actions did not allow a fair trial.

Adel G. Hagez of Richmond, Va., will be tried again Nov. 18, McLendon's office said yesterday.

The opinion from the Court of Special Appeals of Maryland that reversed Hagez's first-degree murder conviction this spring also faulted former Circuit Judge Cornelius F. Sybert Jr. for allowing the state's "zeal in securing a conviction" to interfere with due process.

The Hagez case exemplifies the limits prosecutors must work within when they are trying cases, said one legal expert. "In this case, the prosecutor overstepped the permissible boundaries," said Douglas L. Colbert, a University of Maryland Law School professor. "It was overreaching."

Of the 1,000 cases appealed by defendants every year, about 10 percent have verdicts overturned, according to the Maryland attorney general's office.

Hagez, 48, was convicted of first-degree murder in May 1993 for the June 22, 1991, slaying of Riad Hijaz at the Holiday Inn in Jessup. Hijaz was shot six times -- three at close range -- in a room registered to Virginia Hagez, the defendant's then-former wife.

Virginia Hagez initially had told police that she saw Adel Hagez with a gun outside the room where Hijaz was shot, according to court records.

But four days before Hagez's trial began, the couple remarried and Virginia Hagez refused to testify, claiming spousal immunity. Sybert declared the marriage a sham and ordered her to testify.

When Gage began questioning Hagez on the stand, she refused to answer. So Gage started a series of detailed queries about the day of the slaying -- including whether asking Virginia Hagez saw her husband holding a gun, according to excerpts in the opinion.

The appeals court ruled the questions themselves were so "damning" they essentially turned Hagez into a prosecution witness, solely by virtue of her silence. In her closing argument, Gage also asked the jury to wonder why Virginia Hagez had not answered the questions, excerpts from the opinion said.

The appellate court particularly objected to Gage asking Hagez, "Do you recall your statements to Howard County police officers identifying who you saw outside your door with a gun?"

The court wrote, "The preceding question is akin to a prosecutor asking Marina Oswald if she had told police that she saw her husband in possession of a rifle at the Texas School Depository on November 22, 1963.

"The question itself is damning; the answer is almost irrelevant."

Colbert said prosecutors cannot use a witness' silence to make their case for conviction.

"We want [juries] to decide the case solely on the evidence the state has been able to prove, not any inferences of silence," said Colbert. "They have to prove the case through admissible evidence."

McLendon said she could understand Gage's determination in trying to prove the case.

It's one of those cases "when you read the transcript and it's hard to believe you really said those things," McLendon said. "We've all been there."

During the trial, Sybert found Virginia Hagez in contempt of court and gave her a 30-day suspended sentence for refusing to testify.

Gage said she plans to call Virginia Hagez as a witness at the November trial, but will ask her if she will testify outside the presence of the jury.

Adel Hagez, sentenced by Sybert to life in prison in March 1995, was released from the Howard County Detention Center in July. Virginia Hagez put up their house in Richmond as collateral for Hagez's $200,000 bond.

The Hagezes had been divorced for about three months when Virginia came to Columbia in June 1991 to operate a food stand at the Columbia Fair. The two Lebanese immigrants owned several restaurants in the Richmond area, according to a pre-sentence investigation prepared by the defense.

Early on June 22, police were called to the Holiday Inn, where they found Hijaz -- Adel Hagez's cousin -- shot six times. The court opinion described Virginia Hagez as "hysterical" and "screaming" in the parking lot, asking a Howard County detective repeatedly, "Is he dead?"

Police said Hijaz was Virginia Hagez's boyfriend, but the day of the slaying she insisted she had no romantic relationship with Hijaz. He had been near her room only to help her with her luggage, she told police, according to the court opinion.

Three days later -- with information obtained from Virginia Hagez -- police found a bloodstained revolver with Adel Hagez's fingerprint on it and six spent cartridges stuffed in a briefcase in the trunk of a car parked in Montgomery County, the opinion stated.

But an FBI agent testified at the first trial that he could not make an exact link between the bullets used to kill Hijaz and those that came from the gun. However, the agent said, based on the specific rifling impressions, the bullets could have come from the gun, according to the opinion.

Defense attorney William H. Murphy Jr. said his client should not be prosecuted again.

"Society's interests are not advanced when a prosecutor obtains a conviction by acting unfairly," Murphy said. "[We can't] tolerate any unfairness of any kind because innocent people get convicted."

Pub Date: 9/10/96

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