Spicer case appeal goes to `conservative' court

Judge ordered inmate retried or freed

June 07, 1999|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

What is considered the most state-friendly federal appeals court tomorrow will hear arguments in the high-profile case of Brady G. Spicer, an Annapolis man who claims he was wrongly convicted of a vicious attack on a bar owner.

Since Spicer's conviction in 1992 of attempted murder and 30-year sentence, he has steadfastly maintained his innocence of nearly beating to death Francis "Bones" Denvir, who owned Armadillo's restaurant at City Dock. He says he was found guilty based on skimpy evidence, poor eyewitness identifications and the changing words of a felon.

While state courts upheld the conviction over the years, a federal judge in Baltimore found the case problematic and ordered Anne Arundel County prosecutors in December to retry Spicer, now 42, in four months or set him free.

Neither has happened. Prosecutors asked the attorney general's office to appeal, and a still-unnamed panel of three judges of the 4th U.S. Circuit Court of Appeals in Richmond will begin hearing the arguments tomorrow.

Spicer, in the Anne Arundel County Detention Center, said he hopes to prevail but knows the reputation of the court in Richmond. "I feel like the odds are totally loaded against me," he said.

"They are by far the most conservative appeals court in the country," John H. Blume, director of the Cornell University Law School death penalty project, said in a recent interview. "In many civil rights cases involving prisoners, they are very conservative. They will certainly be looking for a way to help the state."

But local prosecutors say they are not counting on that. Anne Arundel State's Attorney Frank R. Weathersbee said what encourages him is having a good case.

"Is there so much evidence now that there was an incorrect verdict by a jury?" Weathersbee said, adding that he is not willing to ignore a jury's verdict.

Neither, Weathersbee said, is he willing to offer the witness who has recanted his testimony -- in which he identified Spicer as the man fleeing -- an immunity deal, as suggested by defense attorneys Nancy M. Cohen and Carroll L. McCabe.

Weathersbee said eliminating one witness' testimony does not exonerate Spicer. Though the two other identifications were less than perfect, it would be an unusual coincidence for three people to say they thought Spicer was the person fleeing the bloody scene, he said.

The issues

At issue before the appellate court is whether U.S. District Judge Peter J. Messitte was justified in his December ruling. He wrote that prosecutors should have shown the defense the discrepancies in one witness' testimony and that the trial was unfair, in part because of omissions by Spicer's then-defense lawyer.

Cohen, who will argue for Spicer tomorrow, said that even if she loses, she will not stop trying to reopen proceedings in Anne Arundel County Circuit Court and in other federal appeals.

Succession of twists

From the Feb. 22, 1990, crime to recent events, Spicer's case has been unusual. For example:

Annapolis police suspected that Denvir, knocked unconscious from behind with liquor bottles, withheld information from them. He refused take a lie detector test and stopped talking to them. Denvir, however, said that after months without an arrest and a tough recuperation, he didn't want to be part of it anymore.

Annapolis police recovered no physical evidence from Denvir's office that would help identify the perpetrator, such as hair or fiber. However, more than $1,000 in cash was left on Denvir's desk and every bone in Denvir's face was broken, suggesting to Detective Steven Moore that the crime was not an ordinary attempted robbery.

At a post-conviction proceeding, Annapolis police officers testified for Spicer, saying that although he had a criminal record, they did not believe he committed this crime. An investigator for the prosecutor's office was not satisfied that the case presented to the jury had been fully investigated.

One of three eyewitnesses, Larry Brown, came forward a year after the crime. He first told his lawyer he talked to Spicer before the attack but later told prosecutors he saw Spicer flee. His testimony won him probation instead of the up-to-20-year prison term he could have received for a drug offense. Failure to disclose the discrepancy in Brown's stories was a violation of court rules, defense attorneys argued successfully to Messitte, though Weathersbee disagrees. This spring, Brown recanted his testimony in conversations with The Sun, but he has refused to talk to anyone involved in Spicer's case.

Spicer took a lie-detector test in jail this spring at the behest of his lawyers. While such tests are questionable, especially so long after an event, Spicer passed.

A move by prosecutors and the defense to end the case with Spicer pleading guilty and receiving a sentence of time served went awry this spring. Anne Arundel Circuit Judge Eugene M. Lerner, who heard the trial, turned down the plea. Minutes later, when the lawyers sought another judge, Clayton Greene Jr., the court's administrative judge, also turned down the plea. Weathersbee said last week that he would not rule out negotiating a new plea.

The identifications of Spicer by two other eyewitnesses are a sore point in the case. Sam Novella testified in court that Spicer looked "very familiar" and bartender Harry Connick identified him in court, though Spicer is a head taller than the assailant Connick described to police. But neither made solid identifications from photographs.

Pub Date: 6/07/99

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