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.
"The blame first and foremost has to be equally shared by the prosecution and the defense lawyer," said Andrew White, a Baltimore defense attorney and former federal prosecutor. "A jury is certainly going to rely on [the lawyers'] assessment of the records, the professional assessment of the records, versus trying to ferret through all the lines of information themselves."
Jurors usually take in all evidence and ideas offered to come to a conclusion, said Cynthia R. Cohen, president of the Towson-based American Society of Trial Consultants.
"With their collective intelligence, they usually can figure out" what to make of discrepancies in the evidence, said Cohen, who runs a Los Angeles consulting firm. She said the jurors might have ignored that evidence, having already concluded that "this GPS system is bogus."
A public jury list was not included in the court file.
Both the Department of Juvenile Services and the Governor's Office of Crime Control and Prevention, which also reviewed Davis' records, say they are confident that the records are accurate. But they are unwilling to say that Davis is innocent.
Several witnesses testified during the trial that Davis was the shooter, but others said he was not.
Davis, 18, has been arrested more than a dozen times. He has been charged several times with assaulting teenage girls and was placed on house arrest after being found to have committed second-degree assault.
For the April convictions, he could be sentenced to life in prison plus 61 years.
"We have to abide by the jury verdict, and we respect that, and that was their finding. It is what it is," said Jay Cleary, a spokesman for the Department of Juvenile Services.
Kristen Mahoney, an attorney and executive director of the Governor's Office of Crime Control and Prevention, said her agency also believes that the GPS data is reliable. She calls it a tool to be used in conjunction with other programs.
But Mahoney concedes that its records might not rise to the level of an "evidentiary standard," meaning providing an alibi.
"I do stress that it's not a magic bracelet; it's just a tool," Mahoney said. "That being said, we were comfortable with the case management of this individual as described to us by DJS."
What happened in court
About five days into testimony during Lamont Davis' attempted murder trial last month, attorneys on both sides agreed — and told the jury — that it was a fact that the defendant had violated terms of his house arrest, ordered during an unrelated case, more than 100 times.
The statement was false, according to an analysis of records, which indicate that the number of violations was about eight.
A Baltimore Sun reporter was in the courtroom when the stipulation was made about 4:45 p.m. April 9, and has reviewed a DVD of the trial multiple times since then.
In the recording, Vicki Anzalone, a representative of the GPS monitoring company, is on the witness stand. Junior defense attorney Frederick Lester is questioning her about the number of violations.
He hands her a report — state exhibit "49B" — and she identifies it as a violation summary for the dates June 24 to July 7 (Davis was arrested July 4). Lester asks how many violations it shows, and Anzalone begins counting.
As Anzalone is counting, Assistant State's Attorney Diana Smith beckons Lester by saying, "Counsel," and they confer.
Lester then tells the court: "Your honor, the state is willing to stipulate. I can proffer that stipulation to save some time … that Lamont Davis has violated his community detention for more than a hundred times."
Smith follows by saying, "I'll stipulate to that," prompting laughs from jurors and the court audience.
Senior defense attorney Linwood Hedgepeth then turns to Lester and says, "That's not true," but the record is never set straight.
It is unclear who came up with the figure.
Tricia Bishop