Third trial possible in killings of 3 children

Judge's admission of jury notes not being shared may lead to overturned sentences

January 31, 2009|By Melissa Harris | Melissa Harris,melissa.harris@baltsun.com

The retired city judge who presided over the 2006 trial of two men convicted of nearly beheading three young relatives testified yesterday that he did not always share jury notes with attorneys before addressing the panel's questions.

Judge David B. Mitchell's admission increases the chance that the state's second highest court will overturn Adan Canela and Policarpio Espinoza's life sentences and grant them a third trial. Their first, in 2005, ended in a hung jury.

During the two-month trial in the summer of 2006, Mitchell allowed jurors to submit questions or requests to him that covered everything from bathroom breaks to confusion about the timeline of events that led up to the murders of Lucero Espinoza, 8; her brother, Ricardo Espinoza, 9; and their cousin Alexis Espejo Quezada, 10.

But the trial transcript lacks any reference to 12 of the 31 jury notes clerks logged in the court file.

The Court of Special Appeals, Maryland's second-highest court, charged retired Howard County Judge Dennis M. Sweeney, an expert on jury trials, with figuring out how those notes were handled. The unusual hearing, which concluded yesterday, turned all of the participants in the 2006 trial into witnesses, but none more significantly than the judge.

Yesterday, Canela's attorney, Brian Murphy, forced Mitchell to read aloud the rule on jury notes. The judge "shall" notify the attorneys of "any communication from the jury ... in any event before responding to the communication."

Murphy then pointed out that Mitchell was working in Nevada at the time Maryland's judiciary strengthened this rule, suggesting that he may not have kept up with the changes.

Mitchell handled the cross-examination gracefully. "This is business, not personal," he responded after Murphy warned him that he had some tough questions and meant no "disrespect."

Murphy highlighted one exchange in the trial in which defense attorney Nicholas Panteleakis argued that Mitchell should delay the case until juror No. 6 arrived. The woman, Panteleakis argued, had been "attentive," "involved" and punctual until that point and shouldn't be replaced with an alternate.

Panteleakis testified that he had no idea that other jurors had sent Mitchell a note earlier that morning complaining about the same juror's "lack of concentration" and frequent "nodding off" when two men's lives were at stake.

Mitchell acknowledged that he couldn't remember how some of the notes, including the one about juror No. 6, were handled and said the "record would have to speak for itself."

"It's been a long time," Mitchell said.

Mitchell said that he and the attorneys knew that a guilty verdict would be appealed. But he said he didn't know jury notes were going to be the focus of the appeal until April. He said that clerks recorded all of the notes in the file; that attorneys and members of the press were allowed to inspect the file; and that no one objected.

"First of all, I didn't hide any notes at all," Mitchell said. "I had no intention of hiding any notes."

Had the attorneys been concerned, Mitchell said they wouldn't have hesitated to bring it to his attention. They were so aggressive, he said, that "they couldn't agree on the time of day."

Sweeney will not report his findings to the Court of Special Appeals for at least another month. Maryland's appellate courts have previously ordered a new trial in a case where the transcript did not contain any mention of a jury note.

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