The decision by retired Baltimore Circuit Judge David Ross to allow the evidence represented an early victory for prosecutors in a highly visible case, but could lay the groundwork for an appeal later, legal analysts said.
Ross listened to more than 90 minutes of arguments from defense attorney Jason E. Silverstein, who represents McGaney, and prosecutor Cynthia M. Banks before concluding that police detectives had not acted improperly when they sought a warrant for a DNA sample from McGaney without specifying that they were trying to tie him to the Harris killing.
Silverstein said the sample should be tossed out because investigators got it under a false pretext. They said they wanted it to link McGaney to an earlier, unrelated killing in which he had been a suspect.
In reality, Silverstein said, the sample was designed to establish the veracity of an anonymous tip that McGaney was one of the men seen in a surveillance video at the site of Harris' shooting. He said that, despite the anonymous tip, detectives had no reason to ask for McGaney's DNA sample in the Harris case, and therefore misrepresented their reasons for seeking the warrant.
"If they're withholding their true intent, how is that a valid warrant?" Silverstein asked. He said that if the judge were to admit the evidence in the Harris trial, "what you're allowing police officers to do is to knowingly give false information to a judge."
Ross disagreed. He said that the detectives had shown sufficient probable cause, and that they had been under no legal obligation to lay out all their reasons for seeking the warrant. Ross then admitted McGaney's DNA evidence into the trial, due to begin later this week.
The killing of Harris, 45, a respected former two-term councilman who lost a race for council president, shocked the city's political circles and ordinary citizens. Police drew criticism, however, when nearly four months passed without an arrest.
The three defendants are charged with first-degree murder, first-degree assault and various robbery and weapons counts in connection with the death of Harris, who had stopped briefly at the club.
McGaney had been interviewed twice about the earlier killing of 16-year-old Terrence Regan, who died in November 2007 on McGaney's doorstep, but he was never charged. In October 2008, a homicide detective told District Judge Videtta A. Brown that police needed McGaney's DNA for the year-old investigation into Regan's murder.
Silverstein, McGaney's attorney, argued Monday that the long delay in applying for the warrant indicated that police no longer considered McGaney a suspect in the Regan killing, and what they were really after was a connection to the Harris case. Silverstein suggested that the two detectives investigating the Harris case had improperly persuaded the detective who was still on the Regan case to apply for the warrant under false pretenses.
A Baltimore criminal-defense lawyer who is not involved in the Harris trial said that the judge's decision to admit McGaney's DNA could be a basis for an appeal if the trial results in convictions.
"It could be a close issue," said Creston P. Smith, a former assistant public defender in the city who is with the firm Silverman, Thompson, Slutkin & White. "That could be an omission of some real truth there," he said, referring to the warrant application's lack of specifics about the actual focus of the DNA probe.
On the other hand, he said, any appeal would require the defense attorneys in the Harris case to show "that this was done in bad faith." They would have to establish, Smith said, that the detectives showed a "reckless disregard for the truth or that they purposely lied to get the warrant."
Since the matter at issue appears to have no precedent, Smith said, "it's an interesting appellate question no matter who wins or loses."
Byron L. Warnken, a law professor at the University of Baltimore and founder of the Warnken LLC firm in Towson, said the detectives, even if they meant well, might have played "fast and loose" with their warrant application, an act that might be "arguably unethical" or "arguably sanctionable."
However, Warnken said, it is unlikely that their actions will have any negative result in the long term. "I don't like the result," he said, referring to the judge's decision to admit McGaney's DNA. But Warnken predicted that the ruling "is not reversible."
In other rulings Monday, Ross also rejected defense arguments about the relevance of other DNA evidence obtained from items found on a street near the jazz club, along the robbers' presumed getaway route. Silverstein said that although DNA links to both his client and Collins had been found on some of the evidence, such as latex gloves, none of the witnesses in the club recalled seeing the robbers wearing gloves.
Silverstein said also that video images did not show the robbers in gloves, a claim that was countered by the prosecutor, who said the poor quality of the video made such a determination impossible. Banks maintained that latex gloves with the defendants' DNA had been found in a purse stolen at the club during the hold-up and found later in a trash can down the street.
Ross also dismissed a motion filed by attorney Janice Bledsoe, who represents Collins, asking the judge to reject testimony by a witness who said he had identified Collins in a police photo array.