Tyiashia Beane testified yesterday against her brother in his first-degree murder case. But her testimony came only from a tape player on the prosecutor's table in the courtroom; the witness herself was missing.
"My brother smacked him in the face. ... I don't know who pulled the trigger, but they was tusslin' for the gun," Beane told a Baltimore police detective in a recorded interview more than four years ago. She said her brother had told her what happened.
Jurors listen to such audiotapes every day in Baltimore Circuit Court, but it's rare that the person whose voice they hear isn't there in person.
Yesterday marked the first time city prosecutors used a newly enacted law that expanded their ability to present out-of-court statements to jurors without the witness there to take the stand.
Judge Wanda K. Heard cited the law to rule the taped statement admissible. She said the justice system would not bend "to the tricks and manipulations of those who would seek to thwart it."
She implied strongly that she believed the defendant, Tyrone Beane, had urged his sister not to show up for court, though she acknowledged the evidence of that was "circumstantial."
Baltimore State's Attorney Patricia C. Jessamy fought for years for the passage of a witness intimidation bill, though she said the law that went into effect is not tough enough. Jessamy repeatedly pointed to situations such as the Beane case, saying her prosecutors are crippled by witnesses who are too afraid to come to court.
"We're very pleased with the judge's ruling, and we'll continue to pursue justice for the victim's family and the community," Jessamy said through a spokeswoman.
Nancy S. Forster, the state public defender and an opponent of the witness intimidation law, said it was "really disturbing" that jurors listened to a tape but not to the live witness.
"This is a very slippery slope that we shouldn't have to go down," she said. "The next thing you know, we'll be having trial by affidavit."
Tyrone Beane, 21, is accused of first-degree murder in the Jan. 17, 2002, shooting death on Peachleaf Court of Taharka McCoy, 25.
Tyiashia Beane was in the courthouse last Thursday, as a jury was being selected for her brother's trial. Testimony began Monday, and there was no sign of her.
It was more unpredictable behavior from a young woman who has played a critical role in the case from the time she gave police her tape-recorded statement Jan. 22, 2002.
Prosecutors viewed her as so important to that they dropped Tyrone Beane's murder charges in March 6, 2003, when they couldn't find her. "I feel pretty confident he got away with murder," a frustrated Assistant State's Attorney Gerard B. Volatile said at the time.
Tyiashia Beane reappeared days later, and prosecutors quickly refiled murder charges against her brother -- a man considered so dangerous that by age 17 he was labeled the city's "most wanted fugitive" because he was suspected in two fatal shootings.
She has since dipped in and out of court proceedings. She showed up to Tyrone Beane's sentencing hearing March 21, 2003, on an attempted-murder conviction. She yelled, "I love you, brother," as he was taken from the courtroom after Circuit Judge John N. Prevas gave him a 75-year sentence.
But prosecution in McCoy's killing has stuttered for years -- enduring more than a dozen postponements for a variety of reasons, including no available courtrooms and a missing court folder.
Defense attorney Bryan A. Mobley, who could not be reached for comment yesterday, said in an earlier interview that the case "is not being prosecuted diligently."
With the murder trial finally under way this week, prosecutors worried that Tyiashia Beane would again doom the case by disappearing. Yesterday, prosecutors moved forward with a motion to use the taped statement without her.
In the morning, Heard listened to arguments outside the presence of the jury. She made her decision. By 3 p.m., the tape was rolling, and jurors were listening.
Called a "hearsay exception," the provision is similar to one that has been used for years by federal prosecutors. Defense attorneys and some Maryland legislators who opposed the law view it as an infringement upon a defendant's constitutional right to confront a witness.
But some believe that right is not absolute and a defendant can forfeit it by doing something wrong -- such as killing or threatening a witness.
Before the witness intimidation law went into effect at the end of October, there was only one example of prosecutors using a person's out-of-court statement without that person being there. In the summer of 1999, a Prince George's County judge allowed jurors to hear that a 27-year-old woman identified Keith Leon Carroll as the man who had killed someone at a card party she attended.
The woman, Angela Sipe, was killed before she could testify. Carroll was convicted in both murders. A state appeals court upheld Carroll's conviction in the card-party murder, but that ruling was an anomaly because the court did not establish it as common law.
Gov. Robert L. Ehrlich Jr. introduced a sweeping witness intimidation bill in January 2005, and a stripped-down version of it was passed by the end of the session.
There's no proof that Tyiashia Beane was overtly threatened, but Heard said "misconduct of the defendant" had caused her not to come to court.
Forster, the public defender, said this case points to a fundamental problem with the witness intimidation law.
"Suppose it's his family that told her not to come and that he had nothing at all to do with it," she said. "Why should he have to forfeit his rights?"
Testimony in the trial is to continue today.