Harris Case May Be Tainted

Murder Suspect's Dna Gained In Unrelated Case

April 20, 2009|By Melissa Harris | Melissa Harris,melissa.harris@baltsun.com

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."

It is unclear whether Don Giblin, the city's chief homicide prosecutor, signed off on the approach used to obtain McGaney's DNA. He declined to answer that question through Jessamy's spokeswoman.

But records obtained by The Baltimore Sun reveal how detectives used the killing of Regan in November 2007, on the steps of McGaney's former home, to secure the first piece of physical evidence linking a suspect to the death of Harris in 2008.

The former councilman was shot Sept. 20 during a robbery at the New Haven Lounge, a jazz club in a Northeast Baltimore strip mall, where he had stopped to borrow a corkscrew and use the bathroom.

Weeks later, an anonymous caller said he recognized one of the men in surveillance videos from the Northwood Shopping Plaza as "Troubles" - part of a sibling duo known as "Bubbles and Troubles."

A computer search linked the nickname "Troubles" to Gary Collins, who, along with his brother Baron, had once said they lived in the 1500 block of Northgate Road behind the shopping plaza. Baron Collins was in jail at the time of the Harris killing; Gary Collins was not.

The computer search revealed that Collins, 21, and McGaney, 20, had been arrested together at the shopping plaza in January 2007. Detectives then ran another search, entering McGaney's name into a homicide unit database. The Regan case appeared.

Detectives leading the Harris investigation met with Detective Robert Dohony, who was handling the Regan case, to discuss McGaney. Dohony told Detectives Robert Patton and Donald Diehl III that he would get a warrant for the suspect's DNA.

According to the warrant, Dohony told District Judge Videtta A. Brown that a witness had seen Charles "Nuk Nuk" McGaney running from the scene of Regan's killing with a pistol, which he stashed in a vacant garage.

The warrant's supporting documentation did not mention the Harris case, nor the fact that the information linking McGaney to Regan was eight months old. On Nov. 5, after two witnesses had identified Collins and McGaney on Northwood Plaza surveillance tape on the night of Harris' death, detectives submitted saliva collected from McGaney's cheeks for testing in the Harris and Regan cases.

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