Attorneys for three men accused of killing Kenneth N. Harris resumed their verbal sparring Tuesday with the state's witnesses and their questioning of virtually every iota of testimony.
But a crucial identification of two of the defendants by a security guard was left unchallenged in the defense's cross-examination of the witness, even as the lawyers took apart his professional history and other matters only tangentially related to the murder of the former Baltimore councilman on Sept. 20, 2008.
The guard, Germyn Murray, had identified two of the defendants, Charles Y. McGaney and Gary A. Collins, in surveillance videos taken on the night of the killing outside the New Haven Lounge, a jazz club in the Northwood Shopping Center. He said he knew both men by name because he had run into them numerous times as they hung around the shopping center, frequently together, loitering and being a nuisance. The third defendant, Jerome Williams, was often with them, Murray said.
When Murray — who was not at Northwood on the night in question — saw two of the videos a couple days later on a news website, he said, he immediately recognized Collins for his "funny walk" and McGaney for his distinctive facial profile. Murray's identification of the pair was an important break in the case and led to their arrests. Prosecutors say the men's DNA was later found on items near the crime scene.
In Baltimore Circuit Court Tuesday, as the videos played in slow motion on a large screen, Murray reiterated his certainty that the men were Collins and McGaney, although he could not identify the third man. He pointed to Collins' habit of thrusting each of his knees outward as he bends them. And the profile of the other man, captured by an ATM camera near the club, was without question McGaney's, he said, even though the image is blurry and only visible for a moment.
Under cross-examination, the defense attorneys questioned almost every aspect of Murray's direct testimony — including the timing of his tenure as a "special" officer commissioned by the city police and whether he had carried a gun without a license — but did not mention his identification of their clients in the videos.
Jason E. Silverstein, who represents McGaney, was asked outside the courthouse why Murray had not been questioned specifically about his ID of the pair.
"It was a very bad identification," Silverstein said, mentioning inconsistencies between Murray's description of Collins' odd stride on the stand Tuesday and when he earlier testified about it during a pre-trial hearing on Aug. 31. On that occasion, he said Collins was "slew-footed," a term given to a foot that turns outward, and said nothing about Collins' knees.
"Sometimes," Silverstein said, "when a witness doesn't come off well, you let it speak for itself, instead of allowing him to fix it."
The defense lawyers were not as restrained with other witnesses. Staccato Butler, a forensic examiner for the Baltimore police, was asked twice whether he had tried to find out the name of a young woman seen in the ATM surveillance video shortly before the crime occurred.
Butler conceded that he had not looked into her identity, but explained that he was not asked to do so by detectives. "They told me they wanted stills from a certain time frame, and that's what I gave them," Butler said, referring to a series of pictures lifted from the surveillance videos.
His reply was pounced on by Jerome Bivens, who represents Jerome Williams, the youngest of the defendants. "We have no idea who she is?" Bivens asked. "Whether she saw anything? Name? Address? We don't know who she is, right?"
Bivens and his colleagues have tried to leave the impression with the jury that someone other than one of the defendants could have been the person who shot Harris as he tried to flee in his car from the holdup at the jazz club. At one point Tuesday, after the jury had been shown the fuzzy images of three men robbing the New Haven at gunpoint, Bivens wanted Butler to admit that photos "distort the truth." An objection from the prosecution was sustained.
The attorney pressed ahead regardless. "We're all very excited" by the images, Bivens exclaimed with unmistakable sarcasm. But, he suggested, "We have no way of knowing whether what was depicted in the video was fiction."