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.
Andrew C. White, a former federal prosecutor and now partner at the law firm of Silverman, Thompson, Slutkin & White, said that as long as McGaney was a suspect in Regan's death, the DNA seizure was justified. And proving that McGaney was not a suspect - given that a witness had identified him running from the scene with a handgun - would be difficult.
"There's nothing false in the warrant," White said. "And once they have that DNA, a law enforcement agency can do whatever they need to do with it, as long as they keep it private and don't put it in CODIS," a national index of criminals' DNA, for which McGaney did not qualify at the time.
Working in the favor of the defense is the fact that McGaney had been interviewed twice about Regan's death and was never charged. The interviews do not appear to have been recorded.
Defense attorneys could argue that the eight-month delay in getting the warrant suggests that police did not consider McGaney a suspect in the Regan killing. In addition, the DNA evidence collected at that murder scene does not appear to be an integral part of the Regan case.
Of the sneakers, jeans, receipt, keys, glass bottle and MP3 player collected at the scene, only the bottle had any skin cells on it to test, according to crime lab reports. Police soon charged another man, William Howell, in Regan's death and did not test his DNA until four months later. The results, it appears, have not come back yet.
Detectives charged Howell in Regan's death on Nov. 12, a day before they charged McGaney in the Harris killing. Byron L. Warnken, a law professor at the University of Baltimore, said the timing could be used to convince a judge that McGaney was never a suspect in Regan's death.
But Warnken also compared detectives' tactics in the Harris investigation to those of a patrol officer who may legally stop a suspected drug dealer because his license plate isn't in the proper position - even though the intent is to smell or see marijuana, search the car and make an arrest.
"Courts don't care about the motive of the police officer; they care about legality of their work," Warnken said.
But the tactic of obtaining DNA in case A for the purpose of testing it in case B is a novel one - one he has never seen before, Warnken said.
"It's a fascinating issue," he said. "And, given who the victim was, it's going to play out in a public arena."