Conviction dismissal is upheld

Panel of judges says evidence suppressed in 1990 beating case

`See the end of the road'

Man got 30-year term in attack on tavern manager

October 19, 1999|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

A man serving a 30-year sentence for the near-fatal 1990 beating of an Annapolis tavern manager was unfairly convicted because Anne Arundel County prosecutors withheld crucial evidence from the defense, a federal appeals court said yesterday.

The 2-1 ruling by the 4th U.S. Circuit Court of Appeals agreed with a U.S. District judge in Baltimore that prosecutors "suppressed exculpatory, material evidence" that a witness changed his story, which could have tipped a jury toward finding Brady G. Spicer not guilty. It reversed the lower court finding that faulted Spicer's lawyer's performance.

The ruling upholds Judge Peter J. Messitte's order in December that erased Spicer's conviction. Retry Spicer within four months or free him unconditionally, the judge had ordered.

"I'll take that from them," the 43-year-old Annapolis man said from the county jail yesterday. "I can see the end of the road now, something I have not been able to see for 7 1/2 years now."

He learned of the ruling from a jail supervisor while watching "The Young and the Restless," part of his afternoon soap-opera routine. Spicer claimed to have been at home watching soap operas when Francis "Bones" Denvir was attacked Feb. 22, 1990, in his second-floor office at Armadillo's restaurant.

The attacker broke every bone in Denvir's head in a beating that has left the popular restaurateur with permanent injuries. More than $1,000 was left on Denvir's desk. Denvir, who never saw his attacker, could not be reached yesterday.

Spicer has maintained his innocence, and this spring took and passed a lie detector test at the behest of his attorneys.

The ruling is something of a surprise from a court considered the nation's most conservative and with a history of not granting relief to criminal defendants.

This is the fourth case in less than two years in which judges have faulted Anne Arundel County prosecutors for illegally withholding evidence from the defense.

In two of those cases, police had not passed the information to prosecutors.

"How many times does this office have to be told by the court what Brady material is?" said Carroll L. McCabe, a former public defender and one of Spicer's attorneys.

Brady material is unrelated to Brady Spicer. It refers to the failure by prosecutors to share potentially exculpatory or mitigating information with the defense, which is known as a Brady violation for a 1963 U.S. Supreme Court ruling that stemmed from an Anne Arundel County homicide.

Prosecutors omitted from what they gave John L. Brady's defense lawyer the statement of the co-defendant confessing to the killing.

"The magnitude of the victory is just beginning to sink in," said Nancy M. Cohen, the defense attorney who argued the case in June in the federal appeals court. "I am not going to feel like I've won anything until I see Brady Spicer walk out of jail."

When that might happen is unclear. A bail hearing is scheduled for this morning in Anne Arundel County Circuit Court. "We are asking for a postponement of the bond review until we have a copy of the decision," said Kristin Riggin, spokeswoman for State's Attorney Frank R. Weathersbee.

Riggin said Weathersbee would say nothing about the case until after seeing the ruling.

The state's attorney's office will consult with the attorney general's office, which represented it in the appeal, about whether to ask the full 13-judge federal appeals court to review the case and what the prospects would be for getting the Supreme Court to hear it.

Riggin said prosecutors might retry the case, although in January they sought to end the case in Circuit Court with a plea and time served because, they said, they doubted they would win a second time.

Two judges, including the one who presided at Spicer's trial, rejected the move.

At issue was the word of felon Larry Michael Brown, who came forward after Annapolis police had failed to solve the case.

In an interview with The Sun in April, a severely ill Brown recanted, saying he had lied in testifying that he saw Spicer run from the scene because he had been offered a deal for probation on drug charges for which he was facing 20 years in prison.

Brown, the only one of three witnesses who knew Spicer, died in July.

In September 1990, Brown had told Gary Christopher, his lawyer, that conversations he had a few days before and after the crime with Spicer led him to think Spicer had attacked Denvir but that he had not seen Spicer the day of the crime.

Christopher told Assistant State's Attorney Steven M. Sindler about Brown's conversations with Spicer.

When Brown spoke with Sindler, Brown "transformed himself into an eyewitness," Messitte wrote in December.

Spicer's defense lawyer did not know that when the case went to trial.

In the majority opinion, Judge Paul V. Niemeyer of Baltimore, joined by Chief Judge J. Harvie Wilkinson, concluded that Sindler did not show "bad faith" in withholding information but had misunderstood or made an error in judgment.

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