Judge's ruling allows Spicer retrial to proceed despite missing evidence

Defense can explain matter to jurors, question reliability

February 18, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The jury that decides whether Brady G. Spicer is responsible for the vicious 1990 beating of an Annapolis restaurateur might be asked to take into consideration missing evidence and the fairness of a photographic lineup, an Anne Arundel County judge ruled yesterday.

Circuit Judge Clayton Greene Jr. said he would neither dismiss the high-profile case, which is to be retried, nor bar testimony from two key prosecution witnesses.

Original photographs, an investigator's tape-recorded questioning of Spicer and a police composite sketch of the attacker, which the defense claims did not resemble Spicer, are missing from prosecutors' files.

Greene said he would not punish prosecutors for the evidence that vanished because Spicer's lawyers failed to show wrongdoing by them or the police. Citing cases that dealt with slipshod work and lost evidence, Greene said he found nothing to justify sanctions in Spicer's case.

It will be up to the defense to try to explain to a jury what it believes is the value of the missing evidence and to question the reliability of other evidence and testimony the jurors will hear.

The ruling comes nearly a decade after the crime. Francis "Bones" Denvir suffered a near-fatal beating at midday Feb. 22, 1990, while working in his upstairs office at Armadillo's restaurant and bar at Annapolis' City Dock. Denvir, knocked unconscious when hit from behind with liquor bottles, said he did not see who attacked him.

Greene's decision is a setback for Spicer's defense, as it enables prosecutors to place on the witness stand two people who testified against Spicer in the first trial in 1992 -- at which he was convicted of assault with intent to murder and sentenced to 30 years.

A third witness, Larry Michael Brown, told The Sun last year that he gave false eyewitness testimony. Brown died after recanting the sworn account that he saw Spicer run from the scene.

Yesterday's ruling left Spicer dejected.

"We are severely handicapped," said defense lawyer Daryl D. Jones.

Neither side had expected Greene to dismiss the case, but trial strategy and other issues rested on the outcome of the two days of hearings that preceded his ruling.

"Now we are going to prepare for trial," said Assistant State's Attorney Warren Davis III.

Seventy jurors are being called for the trial, which is scheduled to begin March 6. Defense lawyers expect the trial to last more than the original four-day estimate.

Prosecutors are preparing two new possible witnesses.

One is a man who claims Spicer talked to him about the crime while they were in the county jail last year. Because the man has lengthy criminal and mental health records, the defense has questioned his sanity.

Prosecutors say the other possible witnesses was at Armadillo's when the manager was beaten.

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