Court says judge erred in declaring mistrial in fatal shooting by officer


The state's highest court yesterday opened the door for prosecutors to renew their manslaughter case against Baltimore police Officer Edward T. Gorwell in the fatal shooting of a 14-year-old boy he said was running from a stolen Chrysler.

The prosecution of Officer Gorwell for the killing of Simmont Donta Thomas ended in a mistrial in August 1993 after a juror did not show up for deliberations and was dismissed. Angry that prosecutors would not agree to allow deliberations to proceed with 11 jurors, Baltimore Circuit Judge Ellen M. Heller then ruled that Officer Gorwell could not be tried again because to do so would expose him to double jeopardy, a violation of the Fifth Amendment.

Prosecutors cited a Maryland rule that says a criminal case can proceed with fewer than 12 jurors only if the parties agree.

In a unanimous decision, the Court of Appeals said yesterday that Judge Heller was wrong.

"The rule does not require that either party explain or justify a decision to insist upon the number of jurors provided by law, and we will not imply such a requirement," wrote retired Judge John F. McAuliffe, who was specially assigned to the case.

But defense attorney Henry Belsky said he would petition the U.S. Supreme Court to take the case, especially in light of the dwindling jury panel in the murder trial of O. J. Simpson. He said prosecutors should have to give reasons for not agreeing to fewer than 12 jurors so that a judge can determine whether they violate a defendant's constitutional rights.

Officer Gorwell has been assigned to administrative duty since charges against him were dismissed.

"He's very upset, very disappointed," Mr. Belsky said of his client's reaction to the appeals court ruling. "There's been a cloud over his head, and now there's a rainstorm."

Assistant State's Attorney Timothy J. Doory, who tried the original case, said he felt "vindicated" by the court's decision.

"We are reviewing the case and then we will prepare for a potential retrial," he said.

A petition for the Supreme Court to take the case would put that process on hold, Mr. Doory said.

Officer Gorwell, 26, was following a stolen car about 1 a.m. on April 17, 1993, when the vehicle stopped on Ellicott Driveway near Gwynns Falls Park and four young men ran away. Giving chase, Officer Gorwell fired a round from his 9 mm pistol. The Thomas youth was hit in the back, and police could find no weapons in the area.

The officer contended that he had heard a shot from the area where he saw two men running and was defending himself. But after an investigation, prosecutors concluded that the officer was not justified in firing his gun.

Race became a central issue in the case because Officer Gorwell is white and Mr. Thomas was black.

After a weeklong trial, jurors received the case and were sent home for the evening after deliberating for more than five hours.

But the next morning, juror Malcolm Boykin, a 36-year-old maintenance worker, did not return to court. When he finally showed up late that day, Mr. Boykin told Judge Heller he had been mugged by three white teen-agers the night before.

The judge dismissed him from the panel and asked lawyers to go ahead with the other jurors. But Mr. Doory said he was concerned that so much time had elapsed since the conclusion of the evidence, and said further that the missing juror would cause the public to question whether the outcome of the trial was tainted.

Judge Heller then granted a mistrial.

In an opinion that prohibited Mr. Doory from trying Officer Gorwell again, she found that prosecutors had deliberately manipulated the outcome so that they would have a better chance to convict Officer Gorwell in another trial.

The higher court found no evidence of that. "The record demonstrates that the State had presented a case that would support a conviction," Judge McAuliffe wrote.

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