A federal appeals court decision shifting the burden of proof to prosecutors to show that a juror's unauthorized visit to a crime scene was harmless will not force a retrial in the murder conviction of Timothy Scott Sherman, says a Harford assistant state's attorney who helped prosecute the case.
Joseph P. Meadows, who assisted Harford State's Attorney Joseph I. Cassilly, said he was confident that evidence presented at the trial would negate any prejudicial effect caused when a juror drove by the crime scene without the court's permission.
"I can't see how the juror could have learned anything visiting the scene that he would not have known from evidence presented in the courtroom," Mr. Meadows said.
Mr. Cassilly, who is on vacation, was not available for comment on the opinion, which was decided Oct. 27 by the U.S. Court of Appeals for the 4th Circuit.
However, the legal battle over the issue of a possible retrial is far from over.
The Maryland attorney general's office has until Tuesday to ask the appellate court to reconsider its opinion, said Gary Bair, assistant attorney general and chief of the criminal appeals division for the state attorney general's office.
"We feel the three-judge panel was not correct regarding the burden of proof shifting to the state," said Mr. Bair.
"We plan to ask the three-judge panel to reconsider its decision, or we may ask for all 13 judges [in the 4th Circuit federal appellate court] to hear the case."
Mr. Bair said his office will decide which to do tomorrow or Tuesday.
Even if Mr. Bair's office misses Tuesday's deadline, the case would return to the U.S. District Court in Baltimore, where it would have to be reviewed.
Meanwhile, Sherman is serving out his two life terms at the state penitentiary in Baltimore.
According to court records, Sherman was 18 at the time he was charged with murdering his mother, Ann Sherman, and adoptive father, Stevenson Sherman, as they slept in their Gibson Manor home near Hickory, north of Bel Air.
Each died of a single shotgun blast.
Shortly after the shooting, Sherman told investigators he had been in bed when he heard the shotgun blasts. He said he ran to the nearby house of his maternal grandfather, William Gibson, about 1:30 a.m.
Mr. Gibson testified that "Timmy" was out of breath and upset, that he had been crying and that it took some time to calm him down.
He said they returned to the Shermans' house, where Mr. Gibson found the bodies. Mr. Gibson said that when he told his grandson that his parents were dead, he cried.
The grandfather called other family members and the police.
The three-judge panel concluded that during the police investigation conducted on the day of the murders, police made two discoveries on which the state based its case for charging Sherman.
* Police found a 12-gauge shotgun belonging to the Shermans stuck in a pine tree near the grandparents' house. They determined it was the murder weapon and found a fingerprint matching Sherman's on the weapon.
The prosecution's theory at the trial pointed to Sherman because he had once used the pine tree as a hiding place.
* Police found a box of 12-gauge shotgun shells under the mattress in Sherman's bedroom. Three shells in the box matched two spent shells found outside the victims' bedroom.
The state did not introduce evidence of motive, the panel noted. Nor was gunpowder residue found on Sherman's hands or clothing in two tests taken hours after the shooting.
The appellate panel also noted that Sherman had told investigators on the morning of the murders that he had fired the shotgun the day before the shooting.
The panel found that juror Blane Miller revealed after the trial that he had driven with his wife to the Shermans' house and looked for the tree where the weapon was found.
After the June 1988 conviction, Mr. Robinson appealed, contending the juror's unauthorized visit to the crime scene violated his client's constitutional rights.
The appeal was denied.
The three-judge panel said the trial judge erred, "failing to make an independent determination or to require the prosecution to explain why the admittedly constitutional error was harmless."
The state Court of Special Appeals upheld the conviction, agreeing with the trial judge. It too erred in assuming the burden of proof was on Sherman to prove the error was prejudicial to his case, the federal appeals court found.
The state Court of Appeals and the U.S. Supreme Court also upheld the conviction, exhausting Sherman's post-conviction relief, so it was appealed to the U.S. Court of Appeals for the 4th Circuit in Richmond, Va.
The petition for a new trial was argued in May, and the unpublished opinion was handed down Oct. 27.
The U.S. Court of Appeals for the 4th Circuit in Richmond will grant or deny the attorney general's petition to reconsider the three-judge panel's opinion of Oct. 27 probably within a couple of months, Mr. Bair said. Depending on what happens, the matter could go before the Supreme Court or back to the U.S. District Court.