Lawyers challenging the convictions of two men, in one of Baltimore's most gruesome child murder cases, argued Tuesday that the defense might have adjusted its trial strategy if the judge had shared all of the jury's questions.
But an assistant attorney general countered that the judge's error during the two-month-long trial was harmless, given what she considered strong evidence tying Policarpio Espinoza Perez and Adan Canela to the near-decapitation of their three young relatives in a Baltimore home in May 2004. The two are now serving life sentences.
If the Court of Appeals overturns the murder convictions, the two Mexican immigrants could face a third trial in the fatal throat-slashings of their young relatives, Lucero Espinoza, 8; her brother, Ricardo Espinoza, 9; and their male cousin, Alexis Espejo Quezada, 10. The first trial, in 2005, ended in a hung jury.
The appeal focuses on an unusual move during the second trial in 2006 by Judge David B. Mitchell, who allowed the jury to ask questions that covered not only typical requests for bathroom breaks, but substantive matters. At issue is what to do about six notes from the jury that he did not share with the lawyers.
They include four notes that were the basis for Mitchell's questions to witnesses, though lawyers did not know that at the time, and one in which some jurors asked that Mitchell dismiss another juror they claimed was "nodding" during testimony.
During Tuesday's arguments, when Judge Joseph F. Murphy Jr. asked if keeping those jury questions private had "any effect on the verdict," defense lawyer Brian J. Murphy replied that it did.
"The defense could have altered strategy," he said. "It's more than just the ability to make sure the answer is correct."
But Judge Sally D. Adkins noted that the defense could not say what it would have done differently had it been aware of the notes.
Assistant Attorney General Diane E. Keller said the defense's argument was speculative, calling Mitchell's mistake a "harmless error."
"The fact that the judge did ask these questions and with full opportunity for follow-up, did not affect the verdict," she said.
The decision by the court could address a variety of issues.
"I think what it is really going to come down to is whether a majority of the court believes that even though these notes were in error, it would not have made a difference in the case," said University of Maryland law school professor Abraham Dash.
"But knowing what questions the jury has tells attorneys where they have been weak in their questioning, and to adjust their questioning. You could make a whole change in your tactics as a result."
Whether the Court of Appeals upholds the convictions or overturns them, Dash said, he expects the judges will make this clear: "They will put a message out to all other judges: Don't let this happen again."
Whether Baltimore prosecutors would retry the men should the top court overturn the verdict is unknown. They would face the prospect of having to locate witnesses who have been deported since the last trial — some of whom did not cooperate with police and flatly said in court that Canela and Espinoza Perez were innocent.
At least one witness, Victor Espinoza Perez, who is a brother of the convicted Policarpio Espinoza Perez and cousin of the dead children, was shot to death in Mexico a little more than a year ago, with his wife suspected in the shooting.
"You have to look at what would be available to retry the case," said Shonte Drake, a spokeswoman for the state's attorney's office.
Despite the judiciary having hundreds of rules, the court has none that precisely addresses how judges who allow juries to submit questions should handle them. A general rule says that a judge must share all notes with the lawyers. All court rules are proposed by a judicial committee and voted on by the Court of Appeals.
During oral arguments, Judge Murphy suggested that an orderly way to handle jury questions would be for the judge to call attorneys to the bench before dismissing each witness to show them the questions jurors have for the witness.