The state Attorney General's Office will decide next week whether to challenge Monday's federal judicial ruling that a man was unfairly convicted of the near-fatal 1990 beating of an Annapolis restaurateur.
At the same time, defense lawyers and prosecutors are preparing for the possible retrial of Brady G. Spicer, as they squabble over how soon that trial must start.
In a 2-1 ruling, a panel of the 4th U.S. Circuit Court of Appeals upheld a lower court opinion that said prosecutors failed to tell Spicer's defense attorneys at his first trial about a discrepancy in statements by a now-dead witness. The judges said prosecutors must retry Spicer within four months or free him unconditionally.
Convicted in 1992, Spicer, 43, served about 7 1/2 years of a 30-year sentence before his release on house arrest Tuesday. He has maintained his innocence.
"Any time there is a reversal or the state loses, we have a process of looking very carefully at the opinion," said Gary E. Bair, assistant attorney general and chief of criminal appeals. "We will decide next week."
A request that the panel rehear the case or that the full 13-member bench hear it must be filed within two weeks. Another option is to seek Supreme Court review, Bair said.
Worrying that they might have only 17 days to get the case into Anne Arundel County Circuit Court, Spicer's defense team and prosecutors are rushing to put their cases together. This week's ruling was unclear on when the clock starts for the 120-day retrial window and whether the 103 days that passed before the judges stopped the clock after they agreed to hear the case will count.
Defense lawyers say the retrial burden puts the defense team in an unenviable position.
"It puts more of the pressure on the defense than on the state -- they already know who is charged and they have their case," said John H. Robinson III, a former prosecutor in private practice. "But if you are the defense, you have to be able to poke holes or show someone else did it."
Both sides will use transcripts from Spicer's trial, and from his post-conviction challenge that featured Annapolis police and a prosecution investigator.
Prosecutors would not discuss the case yesterday but have said they might have a new witness.
Carroll L. McCabe, one of Spicer's lawyers, expects to file court papers today that tell prosecutors she wants to see their evidence. But that is just the start.
"We will need to get additional documents, perhaps additional witnesses," she said. " We have a lot of people to interview."
"She needs to investigate whether someone else was suspected or not," said William C. Mulford II, also a former prosecutor in private practice. "Let's say there were three or four other suspects. Were their pictures shown to the witnesses?"
Mulford said in-court identifications can be attacked, and in some cases barred, as being tainted by the earlier photographs shown to witnesses or by a lack of records of people in the photos.
While prosecutors have no obligation to show a motive, "lack of a motive sometimes can be used to create reasonable doubt," he said.
In the past, the motive was hazy. Whoever beat Francis "Bones" Denvir at Armadillo's restaurant left more than $1,000 on Denvir's desk. No physical evidence ties anyone to the crime. Investigators made no link between Spicer and Denvir.
Defense lawyers are expected to present evidence not used in the 1992 trial. They will subpoena medical records to back his claim he could not have outrun anyone from the restaurant because he had suffered a broken knee a year and a half earlier.
The lawyers are expected to challenge testimony of Henry Connick, the Armadillo's bartender who chased the attacker, by trying to show that his description of an assailant who was 5 feet 9 does not match Spicer, who is a head taller.
They are likely to try to block prosecution use of 1992 testimony by Larry Michael Brown, unless they can counter it with his recantation. Brown said he saw Spicer run from Armadillo's, but this year said he lied. Brown died in July.