Ware retrial raises issue of sharing evidence

Felon's testimony led Md. high court to overturn two murder convictions

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

In 1995, Baltimore County Circuit Judge Joseph F. Murphy was giving a talk on shrinking the sentences of felons at a conference, and he used an unnamed case to illustrate a point.

In the audience, Anne Arundel County's assistant public defender, Rodney Warren, heard something familiar. The unnamed convict, whose bid to shorten a life-plus-10-years sentence for murder was pending before Murphy, had just given testimony that helped prosecutors win a double-murder conviction and death sentence in another county.

That county was Anne Arundel. Warren's fellow public defenders had handled the case, and he realized he was hearing information that they knew nothing about -- information that had not been turned over by prosecutors at the trial.

That incident led the state's highest court in 1997 to chastise Anne Arundel prosecutors for withholding evidence, and to a costly retrial of a 1995 case. The retrial of Darris Ware opens today in Anne Arundel County Circuit Court.

Prosecutors are required to share with the defense any material that might lead a jury to a verdict of innocent, or a judge to a more lenient sentence. It is called "Brady material," after a U.S. Supreme Court ruling in a Maryland case.

Ware's is among three Anne Arundel cases in recent years in which judges have faulted prosecutors for failing to turn over exculpatory material; accusations dogged a fourth case, but the charge was dropped. While prosecutors think judges are tilting too much toward the defense, many criminal defense attorneys are wondering if more violations have slipped by.

"It's a matter of great concern," said Anne Arundel County Public Defender Alan R. Friedman. "It's like an iceberg. You don't know there's exculpatory material being withheld, and sometimes it's way down the line that you do. "

The reversal of Ware's conviction and a second case spawned their own legal jargon. A "Ware problem" is when the defense has not been informed about prosecutors' bargaining with felons for testimony. A "Spicer problem," named after the overturned verdict against Brady G. Spicer, is when prosecutors build a case on an identification made by a felon who has a motive to lie.

"What is of concern to me is that the No. 1 and No. 2 men in that office were involved in cases in which there were Brady violations," said former assistant public defender Carroll McCabe, referring to State's Attorney Frank R. Weathersbee and his deputy, Gerald K. Anders, who prosecuted two of the cases.

Weathersbee defended his office, and said judges have gone too far.

"It's almost that the police are going to have to investigate for the defendant," the veteran prosecutor said. "It's now extended to [where] you almost have to go into the minds of what your witnesses would have thought, like the Ware case."

In the aftermath of the Ware case, some assistant prosecutors have given defense lawyers more than the law requires, defense lawyers said.

Ware, 28, of Fort Pierce, Fla., is charged with killing Cynthia Allen, 22, and his girlfriend, Bettina Krista Gentry, 18, in the Gentry home in Severn on Dec. 30, 1993.

Edward L. Anderson was the witness who put Ware at the crime -- he's the unnamed convict Judge Murphy was referring to during the 1995 conference. At Ware's first trial, Anderson testified that he was on the telephone with Allen, who said Ware and Gentry were arguing. A few minutes later, he testified, he heard screams, two shots, a pause, then a third shot. Ware was convicted and sentenced to death.

The defense did not know that prosecutor Anders wrote a letter supporting Anderson before a sentence-reduction hearing; what Anders said at that hearing; that Anderson said there that "I just heard two gunshots"; and that Murphy reserved ruling because "I want to know what happens" in the Ware case.

That would have been ammunition for the defense to attack Anderson's credibility. His sentence modification is pending. If he testifies during Ware's retrial, as expected, the defense will closely question him on those issues.

In overturning Ware's conviction, the Court of Appeals said Anderson's testimony was the potential difference between first-degree and second-degree murder -- between Ware receiving a sentence of death or life imprisonment. The judges said that even without a formal understanding between Anders and his witness, Anderson could have expected that helping Anders would benefit him.

"I can say that the Court of Appeals was wrong in their reasoning," Weathersbee said.

Anders would not have known what Anderson expected, Weathersbee said.

"Brady violations will come back to haunt you if you are the prosecutor," said Byron Warnken, a criminal law professor at the University of Baltimore School of Law.

Warnken said the built-in conflict is that the defense relies on its courtroom opponents because that's who holds the cards, and nobody is looking over prosecutors' shoulders.

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