- The Washington Times - Friday, April 10, 2009

BALTIMORE | Defense attorneys questioned the handling of jury notes Thursday as they sought a new trial for two men convicted in the near-beheadings of three young relatives nearly five years ago.

The attorneys for the two illegal immigrants said the trial judge did not disclose notes from the jury as required in the retrial of Policarpio Espinoza and Adan Canela, two Mexicans who were convicted of first-degree murder and are serving life sentences for the 2004 killings.

Retired Howard County Circuit Judge Dennis M. Sweeney, who has been assigned to determine whether the notes were disclosed, questioned both sides at length as attorneys presented their arguments in Baltimore Circuit Court.

A note sent by jurors complaining about an inattentive juror figured prominently in the questioning.

In the note, jurors complained that one member was inattentive, sleeping at times and should be removed for lack of concentration. Defense attorney Brian Murphy said the record was “devoid and silent” on whether the defense was made aware of the note, and Judge Sweeney said it was a “bit of a mystery” why the note wasn't in the record, particularly because the juror was later dismissed for not appearing for duty.

Judge Sweeney noted that the defense argued at the time to keep the inattentive juror and that “just doesn't make any sense” if it had seen the note.

“Is it your argument, the defense wanted a juror other jurors hated?” Judge Sweeney asked Assistant State's Attorney Matthew Fraling, who responded that he couldn't divine the intent of the defense.

Mr. Fraling told the judge that all the jury notes were placed in the case file, where they could be viewed by both sides, prompting Judge Sweeney to ask whether that was all that was done. Mr. Fraling responded that it wasn't and the placement “buttressed the argument” that the notes were shared with both sides.

The two men were convicted in 2006 of murder in the slayings of Lucero Espinoza, 8; her brother Ricardo Espinoza, 9; and her cousin, Alexis Espejo Quezada, 10.

Canela was a cousin and Policarpio Espinoza was the uncle of the three children, who were found with their throats slashed in an apartment. A motive for the slayings was never established.

If a new trial is ordered, it will be the third for the pair whose first trial ended in a hung jury. The jury in the second trial was unusually curious, retired Baltimore Circuit Judge David B. Mitchell testified at a fact-finding hearing in January. Jurors sent the judge 28 notes during trial and four during deliberations.

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