Shaking his head in anger, the Anne Arundel County judge who seven years ago sent Brady Spicer to prison for a near-fatal assault refused yesterday to approve a deal to free the Annapolis man a federal judge said was unfairly convicted.
Minutes later, the county's administrative judge said he would not take over the case, leaving Spicer crestfallen and prosecutors stunned at the prospect of taking a 9-year-old beating case through the courts again.
Circuit Judge Eugene M. Lerner defiantly announced that the federal judge who'd sided with Spicer was wrong, the prosecutors' decision not to challenge the federal judge was wrong, and the negotiated plea they'd brought him to end the case was wrong.
He said other circuit judges and state appellate judges who'd reviewed Spicer's conviction for assault with intent to murder and his 30-year sentence had upheld them.
"A judge reads a transcript and makes a determination after all these reviews that a lawyer didn't do something properly and grants a new trial? It's difficult for me to understand that. There has been more than due process in this case," Lerner said in a low voice.
Prosecutors, who fear losing such an old case on retrial when witnesses will be hard to find and hard-pressed to remember what happened, said the plea they'd brought Lerner had been cleared by Francis Denvir, the victim.
Denvir, former owner and manager of Armadillo's at City Dock in Annapolis, where the attack occurred, suffered permanent vision, hearing, smell and taste loss in the 1990 beating.
Lerner, who had presided over Spicer's jury trial in 1992, meted out the maximum term partly because of the savageness of the attack. A presentence report had recommended less than half that sentence.
Lerner said he would take a few minutes to think about the plea agreement when lawyers presented it to him yesterday. Under its terms, Spicer would have offered an "Alford plea" -- denying guilt but admitting prosecutors had enough evidence to convict him -- and he would have been sentenced to the time he had served.
Lawyers threw their hands in the air and muttered under their breath after Lerner walked to his office. Four minutes later, the judge re-emerged.
"I think Mr. Spicer deserves 30 years in prison," Lerner said. "You can take it to another judge."
Spicer, 42, who had started the afternoon in court with a huge grin saying, "I think this is it," turned, shocked, his eyes wide.
Deputies whisked Spicer out of the courtroom after Lerner's comments yesterday.
Since he was indicted in 1991, Spicer has adamantly maintained that he did not beat Denvir nearly to death with whiskey bottles as the manager counted lunchtime cash receipts.
His claim of innocence had support. So convinced were Annapolis police that prosecutors had the wrong man that they testified for Spicer as he tried to get the verdict overturned, appealing through state courts into the federal system.
Spicer has been so nervous about the next step -- after U.S. District Judge Peter J. Messitte in Greenbelt ordered freedom or a new trial for him last month -- that he has been sick to his stomach in the county jail.
Defense attorney Jonathan P. Van Hoven and assistant state's attorneys Thomas J. Pryal and Warren Davis privately asked Administrative Judge Clayton Greene Jr. to accept the plea.
He declined, but the prosecutors would not say why. Greene did not respond to requests for an explanation.
Nyota Kareeba watched the proceedings. Her sister, Glendora Jones, was Spicer's girlfriend when he was arrested but married another man in August. Her family had stayed close to Spicer, however. Her mother even had a turkey in the oven for a welcome-home dinner last night.
"It's so close, right in front of the judge. And it was gone," Kareeba said, fingers pressed to her temples.
Pryal, the prosecutor, said he would continue to review the case, which prosecutors had taken to a grand jury over the objection of police on the strength of testimony from a felon angling for probation.
On Dec. 29, Messitte gave prosecutors 30 days to appeal his order to the 4th U.S. Circuit Court of Appeals in Richmond, Va. -- that time runs out in a week -- or 120 days to retry Spicer or free him.
"It would be very difficult to get another conviction," Pryal said. "It would be difficult to retry a case seven years after the original trial and nine years after the incident itself."
Nevertheless, Messitte's opinion has not swayed prosecutors from their belief that there was no reason to change the verdict.
Messitte, however, doubted the account of the felon, Larry Michael Brown, who first told his lawyer he talked to Spicer before and after Denvir's beating but then told prosecutor Steven M. Sindler that he saw Spicer running from Armadillo's.
Messitte was troubled that Spicer was at least a head taller and 70 pounds heavier than the attacker one witness described.
Finally, the federal judge noted that three witnesses had described the attacker as a fast runner. Spicer's defense lawyer during the trial, James S. Salkin, never introduced medical evidence that could have shown Spicer could not run like that because he once broke his kneecap.
Pub Date: 1/22/99