The jury passed 31 notes to the judge before finding the men guilty.
They allege that retired Circuit Judge David B. Mitchell never shared some of those jury notes with defense attorneys. Now, on order from the state's second-highest court, retired Howard County Circuit Judge Dennis M. Sweeney is conducting a hearing to find out if those allegations are true.
If they are, the Maryland Court of Special Appeals could grant Canela and Espinoza another trial. It would be the third; their first ended in a hung jury. Both of the men are serving two consecutive life sentences without parole.
In February 2007, the same appellate court threw out the convictions of two men under similar circumstances. In that case, a juror's question could not be found in the transcript of the trial.
In the case of Canela and Espinoza, the transcript lacks any reference to 12 of the 31 jury notes, according to Canela's appellate attorney, Brian Murphy.
The hearing to find out whether the omissions are accurate has turned all of the players in the second trial - defense attorneys, prosecutors, courtroom clerks and even the judge - into witnesses. Mitchell is expected to testify Friday.
"Appellate lawyers are sometimes asked to supplement or correct the record over something like leaving out one day of the transcript, but I've never had a hearing like this," said Murphy, who cross-examined the clerk and two prosecutors yesterday.
The proceeding has lawyers cross-examining people with decades of experience in the technique. On several occasions, Sweeney had to direct Sharon Holback, who has been a Baltimore prosecutor since 1983, to answer Murphy's questions and strike some of her comments from the record.
Holback argued that some of the jury notes were addressed off-the-record in the judge's chambers or in the courtroom when the cameras weren't rolling. And Canela and Espinoza's attorneys could have objected but never did.
"Why weren't [their defense attorneys] standing up and spitting nickels over this issue?" Sweeney said after testimony ended yesterday.
Murphy replied, "You can't make a record of what you don't know about."
Testimony from Canela and Espinoza's trial attorneys is scheduled to begin today.
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