Overturned conviction case heard

U.S. appellate judges ask state prosecutors if right man found guilty

`Perception of injustice'

Federal judge ruled defendant in beating be freed or retried

June 09, 1999|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

RICHMOND, Va. -- Federal appellate judges asked yesterday whether prosecutors were certain that the right man had been convicted and sentenced to 30 years in prison for the brutal beating of an Annapolis City Dock bar owner.

The state wants the judges to overturn a December ruling by U.S. District Judge Peter J. Messitte that Brady G. Spicer should be retried or freed. Messitte found that Spicer's 1992 trial was unfair, largely because Anne Arundel County prosecutors never told his lawyer that an important witness had "transformed himself into an eyewitness."

Though on paper much of the appeal seemed centered on fine interpretations of legal points, arguments before the judges yesterday did not. The judges jumped in with questions focused on facts in the case.

At the heart of the arguments was how the jury might have weighed the words of Larry Michael Brown, the witness who traded his testimony against Spicer for probation in a drug case.

The judges wondered out loud whether jurors should have been told about what the defense claims is a discrepancy in Brown's account: When Brown spoke with his attorney and implicated Spicer, he did not say he saw Spicer flee the crime scene. But he later told Assistant State's Attorney Steven M. Sindler that he saw Spicer run.

In April, Brown recanted much of his trial testimony, telling The Sun he lied about seeing Spicer run past him from Armadillo's restaurant on Feb. 22, 1990. That new wrinkle is not formally part of the case the three-judge panel of the U.S. Court of Appeals for the 4th Circuit considered, although Judge Paul V. Niemeyer, who maintains an office in Baltimore, mentioned it.

"The question I have is whether the state is satisfied it got the right man at all," said Niemeyer, who seemed sympathetic to Spicer. "There is a public perception of injustice in this case."

However, lawyers warned against reading too much into the judges' line of questioning.

The 4th Circuit has a reputation for leaning toward states' positions, and some scholars consider it the most conservative of the courts that are one step below the Supreme Court. The court usually takes a few months to issue rulings after hearing arguments.

Judge Robert B. King of West Virginia said Sindler might not have viewed it as a discrepancy that Brown and Brown's lawyer gave different information. He said Brown was consistent in what he told the prosecutor, grand jury and trial jury, that Sindler relied on this and that Brown's lawyer might only have skimped on information he and his client gave out.

Assistant Attorney General Ann N. Bosse argued that Sindler had not hidden information. She said he called Brown's lawyer in 1992 as a witness, "which doesn't seem to be the actions of a prosecutor who is withholding information from the defense."

Nancy M. Cohen, Spicer's lawyer, argued that the jury needed to hear the differing statements to evaluate Brown's testimony, especially because the other two witness identifications in the case were weak and no physical evidence tied Spicer to the attack on Francis "Bones" Denvir.

"The glue that held the state's case together was Larry Brown," Cohen said.

Chief Judge J. Harvie Wilkinson asked if the defense was trying to use Brown's statements to get at "whether there was sufficient evidence to support a conviction." He suggested, as the court has ruled in other cases, that federal judges should show some deference to state courts.

State courts upheld Spicer's conviction.

At the trial, bartender Harry Connick identified Spicer as the man he chased from the beating scene, though Spicer is a head taller and doesn't much fit the description Connick initially gave police. The third witness, Sam Novella, who glimpsed the chase, testified that Spicer looked "very, very familiar."

The attacker left more than $1,000 on Denvir's desk after attacking him in his office.

Denvir, every bone in his face broken by liquor bottles during the attack, told Annapolis police he did not see who hit him.

The case had unusual twists. Among them, Denvir stopped talking to police, who speculated that he was not telling them everything, though Denvir said he was tired of so many months without an arrest. At a post-conviction hearing, police testified for Spicer.

After Spicer's conviction was overturned, prosecutors and defense attorneys worked out a plea in January that would have allowed Spicer to get out of prison with time already served. But Anne Arundel County Circuit Judge Eugene M. Lerner, who presided over Spicer's trial, refused to go along with it.

Pub Date: 6/09/99

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