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Role of past judge's answer disputed in Eldersburg murder case

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ANNAPOLIS — The Maryland Court of Appeals will likely decide by August whether a Westminster man convicted of a 2012 murder outside an Eldersburg bar should get a new trial.

On Thursday morning, attorneys for the state of Maryland and defendant Jacob Bircher presented their oral arguments before the state's highest court and fielded questions from the court's panel of seven judges.

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Bircher was convicted in 2013 of first-degree murder in Carroll County Circuit Court and sentenced in 2014 to life in prison for the killing of a Sykesville man outside the Harvest Inn. But in February, the Court of Special Appeals overturned the conviction after Bircher argued that instruction that trial Judge Barry Hughes gave the jury during deliberation undermined the defense.

When the appellate court ordered the case back to trial, the state requested that the Court of Appeals hear the case. If the court decides to uphold the Court of Special Appeals' decision, the case will head back to trial in Carroll County. If the court sides with the state, Bircher's conviction will stand.

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During deliberation at the close of Bircher's criminal trial, the jury asked for the judge's help in clarifying the definition of "intent" and whether it meant to kill a specific individual or someone else in general. In response Hughes told jurors, "intent is present if a person attempted to kill one person and as a result of the act accidentally or mistakenly killed another person."

David Garrett, 36, was killed and Gary Hale Jr., 26, was injured when Bircher fired 13 shots into a group of people standing outside the Harvest Inn on Liberty Road.

Attorneys for Bircher argue that the judge's instructions, given after closing statements, undercut the defense's credibility with the jury. Had Bircher's defense team known the concept of transferred intent would come into play, his attorneys say, the defense would have pursued a different defense theory. Also, they say, the state never used the concept of transferred intent in its prosecution of the case, instead opting for the argument that an individual firing 13 shots into a crowd of people must know that it is likely the bullets will hit and potentially kill at least one of those people.

The state's position is that it is the judge's responsibility to help the jury understand legal theory in order come to a fair conclusion, so the judge's definition of intent was necessary. The fact that the state's attorney's office didn't specifically advocate the transferred intent concept didn't mean that they ruled it out, the state also argues.

"The fact that [transferred intent] was not proposed by the state is not the end of the analysis," said Carroll County State's Attorney Brian DeLeonardo, who appeared on behalf of the state Thursday as a special assistant attorney general. The attorney general's office normally handles cases in the Court of Appeals.

The judge's instruction, DeLeonardo told the court, was necessary, and the prosecution's argument that Bircher targeted everyone outside the bar that night, he said, did not preclude the idea of transferred intent.

Attorney Steven Silverman, who represented Bircher at Thursday's hearing, told the court that the judge's advice to the jury, when given after the closing arguments, effectively tied the defense's hands. Throughout the trial, Silverman said, defense attorney Robert Bonsib argued that Bircher was heavily intoxicated at the time of the incident and only intended to fire into open space, not at any of the people present.

Had the defense known that transferred intent would be a factor, they could have argued instead for self defense, Silverman told the court.

"There's no way to get around this," he said of the effect the judge's actions had on the defense's ability to defend its client.

Other convictions Bircher was given related to the 2012 incident — for assault, handgun offenses and reckless endangerment — remain intact.

A decision on the matter is expected within the year, but will likely come in August, before the start of the court's next session, said Carrie Williams, deputy division chief of the criminal appeals division in the attorney general's office.

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