The prosecution and the defense formed an unusual alliance yesterday, seeking to throw out a conviction for a crime they said doesn't exist -- but a Baltimore County Circuit judge disagreed.
"We do not think 'attempted involuntary manslaughter' exists in the state of Maryland at this time," said Assistant State's Attorney J. T. Smith, prosecutor in the case against John Matthew Miller, 19, of Abingdon in Harford County.
"I never had such an agreement before," defense lawyer Richard M. Karceski told Judge Thomas J. Bollinger in the motion to strike the verdict. "I only hope the court agrees."
But Judge Bollinger did not. He translated a Latin maxim that "judgment by one other than a judge has no force or effect."
The judge had handed down the verdict -- along with a conviction for reckless endangerment -- in July, after a nonjury trial of Mr. Miller for firing a gun inside White Marsh Mall on Oct. 17.
The two attorneys and University of Baltimore law Professor Byron Warnken said then that attempted involuntary manslaughter can't exist, because an attempt must be intended -- and thus voluntary.
A 1989 opinion, written by the chief judge of Maryland's highest court, said in part: "involuntary manslaughter is an 'unintentional killing done without malice, by doing some unlawful act endangering life, or in negligently doing some act lawful in itself'; accordingly, we hold that it may not form the basis of a criminal conviction for attempt."
But Judge Bollinger said yesterday his research found the question had not been decided. He noted that the Court of Appeals cases dealt with other issues -- so its comments about attempted involuntary manslaughter did not amount to a ruling.
He then sentenced Mr. Miller to 18 months in jail on the reckless endangerment count, for firing the gun in an attempt to win back a girlfriend.
Although the bullet entered two stores where employees and customers were present, Judge Bollinger acquitted Mr. Miller of attempted murder because it was not proved that he was aiming at anyone.
On the contested conviction for attempted involuntary manslaughter, Judge Bollinger suspended all of a concurrent five-year sentence -- thus, there seemed little reason for either side to appeal.
Mr. Smith said the prosecution already has all it could win on appeal -- the reckless endangerment conviction.
And Mr. Karceski said the reckless endangerment conviction probably would survive any appeal.
While attempted involuntary manslaughter might be thrown out, he said, Mr. Miller and his family have not decided whether to undertake the expense "to eradicate the more ugly of the two convictions."
Still, he said, "I've never been in such an enviable position as defense counsel, to have the state throw in the towel -- after a verdict."
Judge Bollinger rejected Mr. Karceski's plea for probation or home confinement for Mr. Miller, who shortly after the incident shot and crippled himself. Now using a wheelchair, Mr. Miller is beginning to walk again, seeing a counselor and attending Harford Community College, the defense lawyer said.
The judge said, "If you take a gun into a crowded mall and it even accidentally discharges, you are going to jail."
But because Mr. Miller is making progress in therapy -- an expense to the citizenry if he were jailed now -- Judge Bollinger ordered that he begin the five-year probation immediately and report for the jail term in a year, on Sept. 16, 1996.
"These types of cases, I guess, are why we get paid," Judge Bollinger said. "They are very difficult . . . for any judge, no matter how callous, no matter how merciful."