Lawyer seeks new trial

Inaccurate information given to city jury

May 29, 2010|By Tricia Bishop, The Baltimore Sun

A Baltimore teen convicted last month of shooting another in the arm and a 5-year-old girl in the head violated the conditions of his home detention about eight times, not the "more than a hundred" instances that defense and prosecution lawyers told the jury, a Baltimore Sun analysis shows.

With the performance of the detention monitoring system key to his defense, the mistake could have severely hurt Lamont Davis' case and pushed the jury toward convicting him of attempted murder, legal experts said.

Attorneys for Davis are seeking a new trial based in part on the blunder, which they say undermined the teen's alibi.

Records from the home-detention system, which used global positioning technology to track Davis, indicate that he was at home last summer when Raven Wyatt, now 6, and the youth were shot on a Southwest Baltimore street. Davis was under house arrest, with a monitor strapped to his ankle, in an unrelated case in juvenile court.

A judge will consider the request for a new trial next month.

During Davis' trial, lawyers on both sides agreed that Davis had violated home detention more than 100 times, and that is what jurors were told. But that figure appears to inflate the number of occasions that Davis left home improperly by about tenfold, a Sun review indicates.

Prosecutors have not conceded that a mistake was made. A spokeswoman, Margaret T. Burns, said the Baltimore state's attorney's office stands by the conviction, reached after all evidence, including witness testimony, was considered. The office declined to comment further because of the coming hearing.

The numbers are a central part of a high-profile case that raised questions about the effectiveness of the state's GPS monitoring program and seemed to put the entire system on trial.

In a court document, Assistant State's Attorney Diana Smith asks that the request for a new trial be denied, stating that the jury received "the complete GPS monitoring records." The implication is that jurors could determine for themselves what the complex records meant.

But Assistant Public Defender Linwood Hedgepeth gives the gaffe more weight. "This untrue evidence destroyed the defendant's GPS defense," he wrote in papers asking for the new trial.

If jurors believe Davis "left the building a hundred times in 10 days, that's pretty much saying [he is] in and out of this house whenever [he wants]" said Jeffrey Frederick, a psychologist and trial consultant based in Virginia. "The jurors might doubt the accuracy of the GPS system, or at least conclude that the system is not doing what it's supposed to do," Frederick said. "It did not help the defense."

Evidence records reviewed by The Sun — including a summary of violations, explanatory notes, daily reports and GPS location points — show no more than 20 violations between June 24, 2009, when Davis' home detention began and his arrest in the shootings 10 days later, on July 4.

And a more accurate figure was likely about eight, according to explanations provided by the Department of Juvenile Services, which oversees the program. The other 12 alleged violations involved approved trips to court-appointed programs and quirks in the monitoring program that register as potential violations, Juvenile Services officials said.

Gov. Martin O'Malley set aside $1 million to implement the GPS system in 2008 as a way to help keep tabs on the state's riskiest juvenile offenders when they are released into the community. Another $2.8 million was recently approved to extend the contract through August 2013, despite complaints by critics, including many in the Baltimore state's attorney's office, that the system is flawed.

The system cannot track offenders, for example, if they leave designated areas without wearing a monitor. However, the program indicates that the person is out of bounds and logs the incident as a violation. A similar limitation occurs if an ankle strap is tampered with — cut or stretched to the point of breaking. The system can detect that only if the monitor is within a certain distance. If it is not nearby, the system records that the offender is beyond set boundaries.

Exposing such flaws was a strategy used by prosecutors during Davis' trial in an attempt to show that the system was so inconsistent as to be unreliable. Davis' lawyers, meanwhile, hung their defense on proving that monitoring system records were accurate.

That is what made the incorrect count of violations, offered on the fifth day of testimony, devastating, outside attorneys said.

The defense contends that the statement, made by the junior defense attorney, Frederick Lester, was either a result of "inadequate assistance of counsel" on their side or "prosecutorial misconduct" on the side of the state. It is unclear who came up with the figure.

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