Race a factor in overturned conviction

The Baltimore Sun

It was a typical Baltimore jury - racially mixed, men and women, younger and older. All 12 jurors had sworn that they would listen to the evidence in a child-abuse homicide case and make a fair decision.

They listened to about a week of testimony, and on March 9, they reached their verdict: Erik Stoddard was guilty of second-degree murder. He was later sentenced to 60 years in prison.

But this week, the judge in the case ordered a new trial, saying he should have asked jurors during the selection process whether they had any racial prejudice against the defendant.

Circuit Judge Allen L. Schwait's decision was based on a little-known but sweeping 1999 Maryland Court of Appeals ruling that a defendant has an absolute right to question jurors about racial bias, even in cases with no apparent racial dynamic.

Stoddard, 26, is white. Calen Faith Dirubbo, the 3-year-old who was fatally beaten in June 2002, was white. All of the state witnesses in the case were white. The attorneys and the judge were white. The jury was made up of eight blacks and four whites.

"There was no hint of a racial issue anywhere in the case," Assistant State's Attorney Julie Drake wrote in her response to the defense motion for a new trial.

Still, during the jury selection process, called voir dire, Stoddard's attorney, Gregory Fischer, requested that Schwait ask prospective jurors specifically about racial bias. Schwait declined to do that.

The judge did ask a standard voir dire question, "Do you have any prejudice, any other bias, any bias and other reason whatsoever, without exception or limitation, that would prevent you from giving a fair and impartial verdict in this case, based solely on the evidence presented here and nothing else?"

Fischer's motion for a new trial, which he argued on the day of sentencing May 16, cited the 1999 Court of Appeals ruling. Drake consulted with other attorneys, who said the case would probably be overturned on appeal. At a hearing Wednesday, she told the judge she no longer opposed Fischer's motion, and he ordered a new trial.

Jurors in the most recent trial could not be located through the court file.

When she learned from the prosecutor that Stoddard's conviction had been overturned, Calen's grandmother was bewildered. What's more: This will be Stoddard's third trial. His first conviction in Calen's death came in March 2003. It was overturned in December 2005.

That time, the Court of Appeals determined that a provision against hearsay had been violated when the mother of another young child under Stoddard's care testified about something the child had told her.

The ups and downs of the case have taken their toll on Calen's family, said Theresa Prehn, Calen's maternal grandmother.

"I'm a little bit disappointed with the system," Prehn said "It just seems very unfair. I keep saying, 'I'm moving forward, I'm moving forward. I'm not looking back.' But I keep getting pulled back in."

Drake, the prosecutor, said she too was frustrated with the system. Both issues that sparked new trials - concerns about hearsay and voir dire - would not have been a problem in the federal system, she said.

"It's not like Erik Stoddard hasn't received fair trials," she said. "He has. These are not constitutional issues."

Drake said she was confident that the jury's verdict in March "had nothing at all to do with race."

But the 1999 Court of Appeals ruling, in the Montgomery County rape and child-abuse convictions of Jorge Hernandez, shows that the state's highest court does not want to take any chances when it comes to the racial bias of jurors.

"[A]ny defendant, of whatever race, is entitled to have the trial court propound a requested voir dire question specifically directed at uncovering racial bias," the court wrote. "[R]acial bias can be directed at an accused based on the race to which a prospective juror subjectively assigns the accused."

Bridget Duffy Shepherd, chief public defender for Baltimore Circuit Court, said defendants should be able to question prospective jurors extensively.

After all, she said, voir dire means to speak the truth.

"We're supposed to be trying to root out biases in people," she said. No one is going to come out and say, 'I'm a racist,' but you can get at it in different ways if you ask more questions."

She said Maryland's voir dire is more restrictive than many other states - some of which give jurors questionnaires or let attorneys put them on the witness stand and interview them.

"I don't know why the state's attorney didn't want [the racial bias question] asked anyway," Shepherd said. Fischer, Stoddard's defense attorney, did not return calls yesterday.

Although Fischer requested the question about racial bias during jury selection, he did not tell the judge at that time about the 1999 Hernandez ruling. The ruling came up during the defense motion for a new trial, after the verdict.

When he ordered the new trial this week, Schwait also expressed dismay at the sequence of events, insinuating that Fischer had not informed the judge about the appeals ruling for tactical reasons.

"I think you held back that Hernandez case," Schwait said to Fischer. "I think you held it back, and it worked. It really worked. ... And I resent that. And I wanted to say that for the record."

Schwait said that had he known about the Hernandez ruling, he would have allowed the question about racial bias. Fischer said he "respectfully rejected the notion that I did something wrong." He said he had not had the case at his fingertips at the time.

Drake, too, said she was unaware of the Hernandez case until the defense motion for a new trial. She said she consulted the attorney general's office, which would have handled the appeal had Schwait denied the request. Two attorneys there told her she was likely to lose on appeal.

She said she talked to Prehn and other relatives of Calen and decided that rather than spend months or years going through the appeals process, she would not contest Fischer's request for a new trial.

Schwait said he wants a new court date as soon as possible - perhaps in July.

Prehn said she is frustrated but determined.

"I don't understand it all, but I am ready to do this again," she said. "It's so important, I'll come back 10 times if I have to. While I don't think it's fair, I'll do it."


Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad