Testimony of key state witness barred in killings of 3 children
By By Justin George and The Baltimore Sun
Feb 25, 2013 | 9:38 PM
A judge delivered a major blow Monday to the state's case against two men accused of fatally slashing the throats of three children nine years ago, ruling that the testimony of a key witness is inadmissible.
As prosecutors try for a third time next month to convict Policarpio Espinoza Perez, 31, and Adan Canela, 26, they'll have to do so without some important evidence and witnesses they used to secure a 2006 guilty verdict that was later thrown out by Maryland's top court.
Circuit Judge M. BrookeMurdock told the prosecution that it may not use the statements of the woman who said in the earlier trials that she drove the men from work to the crime scene. That woman, Guadalupe Hernandez, is in a Mexican prison where prosecutors face uncertain prospects of reaching her before the two men come to trial again.
It was just the latest setback for prosecutors, who are watching evidence against the two illegal immigrants erode with time. Two witnesses, including a detective, have died since the first trial. The judge also has ruled out parts of the DNA evidence that prosecutors said tied both suspects to the home where they allegedly killed three young relatives.
Both the prosecution and defense had used Hernandez's testimony to build timelines surrounding the grisly killings. Nick Panteleakis, a defense attorney representing Perez, said its exclusion was "enormous."
"They have less than half of what they had before," he said of the prosecutors.
Perez and Canela, both from Mexico, are accused of nearly beheading three young relatives — Lucero Espinoza, 8; her brother, Ricardo Espinoza, 9; and Alexis Espejo Quezada, 10, the siblings' cousin — in Northwest Baltimore on May 27, 2004.
Both men were arrested after police said DNA evidence on clothes found in a home and car linked them to the crime, which drew national attention because of its brutality and mysterious lack of a clear motive.
A first trial in 2005 ended in a hung jury. Both men were convicted in a second trial and given life sentences in 2006, but that case was overturned when the Maryland Court of Appeals ruled in 2011 that a trial judge should have told attorneys about questions and concerns jurors had shared with him.
In November, both defendants rejected prosecutors' offer of a plea deal that would have given them life sentences with all but 40 years suspended.
It was a risk defense attorneys said they are happy taking. Murdock has thrown out DNA evidence from a pair of gloves found in a car and blood spatter found on a shoe after Panteleakis cited concerns about the state's scientific methodology.
Prosecutors Cynthia Banks and Nicole Lomartire declined to comment.
Still admissible are bloody jeans found by investigators, leaving prosecutors with access to DNA evidence that was pivotal in the previous trials.
Monday was the scheduled deadline for Banks and Lomartire to find a way to interview Hernandez or get her to Baltimore. Hernandez is key because she said she drove both suspects from their jobs at a food truck to the murder scene. The duration of that drive is important in arguing whether both suspects could have killed the children.
"She controlled the pace," said Brian Murphy, Canela's attorney.
But her own troubled past raised concerns about her credibility as a court witness.
She's in prison in Mexico for hiring a Mexican police officer she was having an affair with to kill her husband, Victor Espinoza Perez, according to information presented in court on Monday. The dispute was apparently unrelated to the Baltimore case but affected it because Espinoza Perez is the head of an extended family involved in the case. He also had testified in past trials.
Prosecutors had argued that her conviction in Mexico didn't necessarily rule her out from testifying in Baltimore. They asked the Mexican consulate for access to Hernandez but were told that it "was a conflict of interest" for the government to help out, Lomartire said.
A Baltimore police detective tried reaching Mexican prosecutors directly but failed. Lomartire then asked the U.S. Marshals Service and the U.S. Department of Justice for help.
Through the Justice Department's Office of International Affairs, she wrote an eight-page letter seeking the Mexican government's help.
"They have not heard from Mexico," Lomartire told Murdock on Monday.
Feeling as if she had exhausted all avenues, Lomartire asked the judge to admit Hernandez's testimony from past trials. But Murdock refused because some of the juror questions that caused Perez and Canela's convictions to be overturned were based on her testimony.
If she couldn't be in the courtroom to answer such questions, those unanswered questions could affect jurors in a third trial.
"The only way you can get her is if you get her from Mexico," Murdock said.
Mark Cheshire, spokesman for the Baltimore state's attorney's office, declined to comment about the ongoing case. The Department of Justice didn't return a request for comment. A spokesman for the Mexican Embassy also declined to comment.
Michael Griffith, an international criminal defense attorney based in New York, said it's difficult to get a suspect — let alone a witness — extradited from Mexico unless a U.S. attorney is pushing the case. He said embassies of the two countries are overburdened with similar requests.
"It's tough enough to get witnesses to come to court, let alone one in Mexico," said Griffith, best known for representing Billy Hayes, whose experiences in Turkish jail became the subject of the movie "Midnight Express."
If Canela and Perez face a third trial, they will be tried separately for the first time. Perez is slated to go first on March 11, while Canela's trial could start April 3.