DNA evidence that gave Baltimore police a key break in the investigation of the killing of former City Councilman Kenneth N. Harris Sr. was obtained under questionable circumstances and might never be heard at the trial, according to court documents and attorneys.
At issue is whether detectives acted properly in obtaining Charles Y. McGaney's DNA through a warrant in an unrelated case, in which it is unclear whether he was a suspect.
Attorneys not involved in the Harris murder case say the manner in which the sample was obtained appears to fall into uncharted legal territory and could run afoul of a 1978 Supreme Court ruling. Baltimore State's Attorney Patricia C. Jessamy acknowledges that the matter would be an issue for the courts to decide, her spokeswoman said.
In October, a city homicide detective told a District Court judge that police needed McGaney's DNA for a year-old investigation of a teen's murder. Left unwritten was the detective's primary motive: a hunch that McGaney had played a role in the Harris killing.
Days after a judge approved a warrant for McGaney's DNA, the test results came back: negative in the killing of 16-year-old Terrence Regan; positive in the Harris case. The crime lab found McGaney's DNA on latex gloves, a coat and a bandanna discarded along the killers' escape route.
The question of whether the evidence was obtained properly has yet to be raised in court, but one of McGaney's attorneys, Jason Silverstein, said he intends to litigate the issue.
Whether the DNA evidence can be used against McGaney at trial will be an early test in one of the highest-profile homicide investigations in Baltimore. And the decision, according to the Supreme Court ruling in Franks v. Delaware, comes down to whether a judge believes that detectives' intentionally lied to obtain the warrant or committed a harmless omission.
In that case, which involved the search of a rape suspect's Delaware apartment, the court set out the procedures and standards for challenging evidence seized during a search if the defense believes that the warrant was obtained on the basis of false statements.
"A law enforcement-oriented judge is going to look at the timeline of the Harris investigation and say, 'This is very good detective work,'" said Creston P. Smith, a Baltimore criminal defense lawyer for 15 years. "Another judge is going to say, 'No, you lied. You can't use this DNA evidence.' That's the difference between Judge A and Judge B."
