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Spicer case opens old wounds; Beating victim coping as convicted attacker faces freedom, retrial

THE BALTIMORE SUN

It's been nine years of recuperating from the beating that nearly took his life.

Nine years of trying to adjust to a life suddenly changed, of trying to dwell less on what happened and more on the future he almost didn't have.

And now, as Francis "Bones" Denvir has moved on, taking pride in his son at college and helping his aging parents, it's all coming back -- the blows that smashed every bone in his face, the fears for his family's safety, the relief in knowing his attacker would endure 30 years in prison.

U.S. District Judge Peter J. Messitte ruled Dec. 29 that Brady Spicer, the Annapolis man convicted in the assault, didn't get a fair trial.

The judge gave prosecutors 30 days, which expires Thursday, to appeal and 120 days to retry or free him.

"We hadn't thought about it much, until of late. Now we think about it a great deal," Denvir, 53, said last week, looking into a beer at the Annapolis restaurant of which he was once part-owner -- and in which he was beaten.

"You have to put those things behind you or it's a cancer that will eat at you, kill you," he said.

Maybe there will be a second trial.

Maybe Spicer, 42, will walk free.

Maybe there will be another appeal.

"We certainly don't want somebody in jail who is innocent," said Denvir, a thin, soft-spoken man.

"In this case, I truly think we have the guilty party, based on the trial, the evidence, all the legal appeals,' he said. "How could we be told so many people could be wrong to be told by a distant someone that you are wrong?"

But Spicer has steadfastly maintained his innocence.

"I did not do it," he said last week in a telephone interview from the county detention center.

Denvir wonders if Annapolis police dropped the ball during their initial investigation, as former prosecutor Steven M. Sindler has claimed, but said he harbors no animosity toward them.

Police have said that Denvir grew uncooperative as their leads shriveled, but Denvir says that is not so. The police were getting nowhere, and he needed to deal with his own problems and get on with his life, he said. He could not continue to focus on the beating and the investigation.

The wrong man?

More than a year after the attack, Larry Michael Brown, a felon who would have been facing 20 years in prison if convicted on his third drug offense, told his lawyer Spicer said incriminating things to him before and after Denvir's beating. Later, though, Brown told Sindler he was shucking oysters when he saw Spicer running from the scene. But no one told Spicer's lawyer about the changing story, and Spicer was convicted.

The Court of Special Appeals upheld the conviction. But Annapolis police were so convinced that Spicer, who did have a record for drug and property crimes, was the wrong man, they went to bat for him at a post-trial hearing in 1995.

Judge Messitte, who took the case when Spicer appealed to federal court, ruled that Spicer's lawyer should have been told about Brown's changing stories. In overturning the case, the judge also found fault with two other eyewitnesses' identifications (they said the suspect was a fast runner, but Spicer, who had once had a broken kneecap was not) and with Spicer's lawyer for not trying to block certain testimony. Messitte was troubled that Spicer was at least a head taller and 70 pounds heavier than the attacker one witness described.

Denvir said he was writing checks in his small office on the second floor of the City Dock restaurant around lunchtime Feb. 22, 1990. There was cash under a napkin on the desk. He never heard anyone come upstairs.

"I had a headset on, listening to prospective [music] groups that wanted to play here," he said. He remembers a bottle bashing his head, then nothing, and then medical tubes down his throat.

A 'fortunate' man

There was a turning point, he remembers, when doctors gathered around his intensive care unit bed said he'd live, but they'd need to rebuild much of his face. His wife, Susan, cracked her first real joke in weeks: "I want you to remember he looked just like Mel Gibson," she told physicians.

"I have a lot of bionic parts in me," Denvir said, what with several operations and more than 200 stitches.

But he has no sinuses, and so blows a drippy nose often. He puts drops in his eyes for glaucoma that resulted from the attack, and he has lost some vision. The nerves associated with taste and smell were severed. Bone chips in his ear have given him bouts of vertigo.

The attack figured into the sale of his interest in Armadillo's at Annapolis's City Dock five years ago. He now works at a Baltimore restaurant.

Yet he said he considers himself "as fortunate a man as there is" -- because he is here to say so, because his strong family endured the trauma, and because friends, neighbors and employees did for him and his loved ones when they could not do for themselves.

"I am one of the few guys in the world who got to see his funeral before he died," Denvir said.

So well-loved around City Dock was Denvir that scores lined Dock Street one night waiting to get in to Armadillo's for a fund-raiser to help pay his medical bills.

People brought food, took him to frequent medical appointments, and sat with him while he was out of work for 10 months.

Bob Quinn, an Armadillo's patron-turned-dear friend, said he mowed the Denvirs' lawn "because he is probably one of the nicest folks I ever met."

Denvir was not in the Anne Arundel County Circuit courtroom Thursday when Judge Eugene M. Lerner refused to accept a plea agreement that would have freed Spicer. He said he told prosecutors to "do what you think is correct."

But now he is on edge, wondering whether the man convicted of nearly killing him could be freed.

In the Anne Arundel County Detention Center, so is Spicer.

Prosecutors' options

Prosecutors can appeal Messitte's ruling, negotiate a plea, drop the case or retry it.

One plea agreement -- Spicer would deny guilt, but admit the state has enough evidence to convict and be sentenced to the time served -- fell through. Both Lerner, who had ordered the maximum 30-year sentence in 1992, and Administrative Judge Clayton R. Greene Jr. turned it down.

Prosecutors have to decide whether to challenge Messitte's ruling in the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The state attorney general's office would handle the appeal for local prosecutors.

Results of similar federal appeals show the odds heavily favor prosecutors.

The court for the Fourth Circuit reversed the last 31 straight similar petitions granted by lower federal courts, said professor John H. Blume, director of Cornell Law School's death penalty project.

"They are by far the most conservative appeals court in the country," he said. "They will certainly be looking for a way to help the state."

An appeal there can take from a few months to a year to be heard.

Nine years after attack

If prosecutors go that route, said Jonathan P. Van Hoven, Spicer's lawyer, his client would have a vigorous defense. "What am I supposed to tell my client, 'Just roll over'?"

Dropping the case could be viewed as a stain on the county prosecutor's office.

And prosecutors fear losing the case in a second trial. Retrying it "seven years after the original trial and nine years after the incident" would be exceedingly difficult, said assistant state's attorney Thomas J. Pryal.

Prosecutors would ask witnesses to recall events of nearly a decade ago. The defense would bring police and the prosecutor's own investigator to testify for Spicer as they did nearly five years ago when he sought a new trial.

Other criminal defense attorneys have privately suggested drafting a new plea agreement that sounds different but has the same result.

Whatever the decision is, Denvir said, "I have no reason to think otherwise, that this is the guilty man."

Pub Date: 1/24/99

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