- The Washington Times - Sunday, February 1, 2009

BALTIMORE | A judge has testified that he did not always reveal immediately to attorneys that jurors had passed him notes during the trial of two men convicted in the near-beheadings of their three young relatives.

Policarpio Espinoza Perez and Adan Canela could get a new trial if an appeals court finds that retired Baltimore Circuit Judge David B. Mitchell violated rules that dictate such notes should be shared with attorneys.

Espinoza and Canela, illegal immigrants from Mexico, were convicted in 2006 of first-degree murder in the deaths of Lucero Espinoza, 8; her brother, Ricardo Espinoza, 9; and her male cousin, Alexis Espejo Quezada, 10. The children were found with their throats slashed in a Baltimore apartment in May 2004.

The two men were sentenced to life without parole. It was their second trial. Their first ended when jurors could not reach a verdict.

Jurors handed Judge Mitchell 31 notes during the two-month trial of Espinoza and Canela, and the judge testified Friday at a fact-finding hearing that some of them were not shared immediately with lawyers because they asked “questions with obvious answers” or because jurors were merely seeking clarification of witness testimony.

Judge Mitchell said all notes from the jury were given to the court clerk and placed on the record and were placed in the case file, where they could be reviewed at any time.

“No one was unaware of what was occurring in that trial,” Judge Mitchell said. “Every note received went into the record.”

But trial attorneys for Canela and Espinoza testified Friday that in certain cases, they would have changed their defense strategy if they knew about notes from the jury.

In one instance, Judge Mitchell asked a question from the bench that Canela’s attorneys, James Rhodes and Adam Sean Cohen, said they did not know originated from jurors. If they had known the source of the question, Mr. Rhodes and Mr. Cohen said Friday, they would have called a DNA expert to testify. The question had to do with whether a different DNA expert would have drawn the same conclusion about a piece of evidence.

“Had we known that the jury was asking this question, it would have given us insight into the jury’s mind-set,” Mr. Cohen said. “This was something the jury was concerned about.”

Attorneys for the men never formally objected during the trial to the way Judge Mitchell handled notes from the jury. They said they became aware of certain notes only during the appeals process.

Another note revealed that a juror worked at the Baltimore City Detention Center, where Espinoza and Canela were being held at the time. The juror said his job precluded any contact with the two men and asked whether he could work on the weekends. But Mr. Rhodes and Mr. Cohen said Friday that if they had been aware of the note, they would have asked that the juror be excused.

Retired Howard County Circuit Judge Dennis M. Sweeney, who presided over the three-day fact-finding hearing, will determine whether Judge Mitchell complied with the rule that requires jury notes to be shared with attorneys. The case will then be argued before the Maryland Court of Special Appeals, which could grant a new trial to Espinoza and Canela.

Judge Sweeney asked attorneys handling the appeal for the men - who are not the same attorneys who represented them at trial - and the state’s attorneys to submit briefs with their proposed findings. Judge Sweeney said he may hear oral arguments before making a decision.

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