Man indicted by federal grand jury in 2006 killing at mall

The Baltimore Sun

A federal grand jury indicted a 23-year-old man yesterday in the January 2006 fatal shooting of a Security Square Mall merchant, a rare single-murder case for federal prosecutors, who took over after a state judge excluded fingerprint evidence.

That evidence, state prosecutors have said, ties Brian Keith Rose of Baltimore to the death of Warren T. Fleming, 31, owner of a Cingular Wireless store at the Baltimore County mall. Rose was arrested 13 days after the shooting, which police said occurred during a carjacking in the mall parking lot.

Rose was indicted on two counts of attempted carjacking resulting in death and discharging a firearm during a crime of violence. He could get life in prison without parole if convicted. Prosecutors said a decision on whether to seek the death penalty will be made in coming months by the U.S. attorney general.

Maryland U.S. Attorney Rod J. Rosenstein said that because of the expense of murder trials, such cases are rarely pursued at a federal level. His office was swayed by Baltimore County State's Attorney Scott D. Shellenberger's request for assistance.

State prosecutors said they linked Rose to the Jan. 5 shooting through partial fingerprints lifted from the victim's Mercedes and a stolen Dodge Intrepid that they said the shooter used to drive away from the parking lot.

Baltimore County Circuit Judge Susan M. Souder ruled that fingerprint evidence, which has been used in courtrooms across the country for nearly 100 years, was not reliable enough for a capital murder case. In her ruling, the judge characterized fingerprinting as "a subjective, untested, unverifiable identification procedure that purports to be infallible."

Rosenstein and Shellenberger announced the indictment at a joint news conference. Rosenstein said he could not speak about the specifics of the case.

Shellenberger said reliable evidence would have been excluded if the trial had remained with the state.

"We were in a situation where evidence was being excluded that we felt the Fleming family had a right to make sure it got presented," Shellenberger said. "The only place is in federal court."

Rose's former defense attorneys were angered by federal prosecutors' decision to pursue the case.

Paul DeWolfe, now head of the Montgomery County public defender's office, said the federal involvement undermines the judge's decision.

"We hope the federal authorities will respect decisions by state court judges," DeWolfe said. "We hope prosecutors in state court will not bring it upon themselves to appeal to federal court every time they're unhappy with judges' rulings. It shows a lack of respect for judiciary and independence of judiciary. It puts a chilling effect on judges making rulings on one side or the other."

Patrick Kent, head of the state public defender's forensic unit, who was Rose's attorney, said "The federal indictment is a slap in the face of every state court judge ruling based on the law."

Rosenstein defended the process. He later appealed to the Maryland legislature to review the law and consider allowing state prosecutors the right to appeal evidentiary rulings, as federal prosecutors can.

"Judges make mistakes. Judges sometimes disagree," Rosenstein said. "And it's very important in the judicial system that there be consistency between judges and that evidence that is admissible in one court be admissible in another."

Kent said no mistake was made in this case and that his former client was ready to go to trial in November before state prosecutors delayed the case.

Rose will have new lawyers in the federal trial.

"Ultimately, the issue of fingerprint admissibility will not go away," Kent said. "The fact that the state has fled to the federal court does not change the fact that fingerprints simply are not admissible, have never been validated and have no place in a courtroom, be it at state or federal level."

Federal prosecutors said the U.S. attorney general's office will decide in six to eight months whether to seek the death penalty. Rose's trial is expected to begin in late 2009.

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