Since April, Larry Michael Brown has refused to tell prosecutors and defense lawyers what he told The Sun -- that he lied about seeing Brady G. Spicer flee the scene of a vicious 1990 beating in Annapolis and seven years into Spicer's 30-year sentence, he wants to make amends.
This week, with relatives at his bedside in a nursing home, Brown repeated his story to one of Spicer's lawyers.
Attorney Carroll L. McCabe confirmed that she spoke with Brown on Monday night -- the eve of federal appellate arguments in Spicer's case. She said Brown said he wanted to "clear his conscience."
She said the ailing man talked about needing "to make my peace with God."
McCabe said Brown's remarks to her were the same as those that appeared in The Sun.
Brown told The Sun that he lied to save himself from 20 years in prison on the drug charges then facing him. He traded testimony against Spicer for five years' probation.
County prosecutors said Brown needs to talk to them before his recanting can help Spicer, but he has refused.
Anne Arundel State's Attorney Frank R. Weathersbee has maintained that it was more than a coincidence that two other witnesses identified Spicer and he noted that state courts upheld Spicer's 1992 conviction.
Spicer was convicted of the Feb. 22, 1990, beating of Francis "Bones" Denvir, an owner of Armadillo's tavern on the Annapolis City Dock.
But in December, Judge Peter J. Messitte in U.S. District Court in Baltimore faulted the identifications, found a discrepancy between what Brown's attorney told prosecutors his client knew and what Brown later told prosecutors. The judge said the trial was generally unfair, and ordered prosecutors to retry Spicer in four months or free him.
On Tuesday, a three-judge panel of the 4th Circuit U.S. Court of Appeals in Richmond, Va., heard the state's appeal of that ruling.
The panel has no deadline to issue a decision.
Although the appellate judges were aware that Brown recanted to The Sun, it is not an issue for them to consider.
How useful Brown's statement will be to the defense is unclear.
Nancy M. Cohen, Spicer's other attorney, said she hopes to be able to use Brown's statement "and other things" to win permission from an Anne Arundel County Circuit Court judge to reopen Spicer's 1996 post-conviction hearing, which concluded with Judge Lawrence H. Rushworth affirming the trial verdict.
At a post-conviction hearing, a defendant can challenge his lawyer's and prosecutor's actions during the trial and give the judge reasons to reopen a closed proceeding.
By itself, a witness who later claims to have lied under oath is not a reason.
"For the most part, if you have a witness who recants, it almost doesn't make any difference," said James A. Lanier, a Baltimore attorney specializing in criminal law. If it did, reopened cases based on witnesses who later recanted would flood the courts.
"You have many cases in which co-defendants or friends of the defendant testify for the state," he said. "They didn't want to. You'd have any number of them who would then come back and say they didn't mean it."
What does make a difference is whether a prosecutor knew at trial and hid that the witness was lying. But that issue may have been examined when Rushworth ruled that what prosecutor Steven M. Sindler had was a potential discrepancy that would not have made a difference in the outcome of Spicer's trial.
Brown's lawyer told Sindler that Brown spoke with a person who may have attacked the owner of Armadillo's. Brown told Sindler he also saw the attacker, a recent casual acquaintance, flee.
Spicer said yesterday he hoped Weathersbee would accept his innocence and join his lawyers in seeking his freedom.
At his post-conviction hearing, Annapolis police officers testified for Spicer.
Weathersbee said he is waiting for the federal appeals court to rule and that it would be premature for him to think about reopening a state proceeding or erasing a jury verdict.
He said he would not offer Brown blanket immunity.
Pub Date: 6/10/99