Tuesday, September 15, 2015
I've written about a lot of Maryland precedent on this blog in connection with the Adnan Syed case. Perhaps no Maryland case, however, is as important as the case we discussed in last night's eleventh episode of the Undisclosed Podcast: Harris v. State. In this post, I will discuss that case in more depth.
In Harris, Robert Harris and his fiancé, Teresa McLeod, were ordered out of Harris's car by a masked gunman. The incident ended with Harris being shot in his left leg and McLeod being fatally shot. Harris told Detective Darryl Massey "that a black male approached the passenger side of the vehicle and commenced to rob and shoot him and Ms. McLeod."
Later that night or early the next morning, Massey received a telephone call. While Massey never disclosed the contents of the call, it led him to bring Nicholas Jantz, a friend of Russell Brill, in for questioning. The statement given by Jantz was not part of the trial record, but Jantz later testified at trial that Brill told him that Harris offered him $20,000 to murder a woman.
After taking Jantz's statement, Massey interviewed "Joseph Brill (Russell Brill’s younger brother), Jennifer Pettie (Joseph Brill’s fiance and mother of his two children), and Russell Brill," who is Caucasian Their statements were also not part of the trial record. When they testified, Pettie and Joseph Brill also indicated that Rusell Brill had told them about Harris offering him money to murder a woman.
Russell Brill, meanwhile, testified about this same murder plan. According to Brill, Harris provided him with a Glock 19 to murder McLeod. Brill, however, testified that he took pity on McLeod at the last minute, prompting Harris to take the gun and fatally shoot McLeod before returning the gun to Brill to shoot Harris in the leg. The State's theory of the case was that the murder would look like a robbery and that Harris would pay Brill $20,000 from insurance policies on McLeod's life.
Conversely, Harris claimed that Brill was merely an acquaintance and that he had legitimately sold his Glock to him. McLeod's mother, meanwhile, testified that she was the only beneficiary on her daughter's life insurance policies, undermining the State's theory of the case. That said, Donnell Bartee, a fellow inmate, testified pursuant to a plea agreement that (a) Brill had confessed to shooting McLeod; and (b) Harris offered to pay him if he told Harris's lawyer that he admitted to shooting McLeod.
Brill also testified pursuant to a plea agreement, and that agreement is the focus of this post. Approximately
a week before the start of Harris’s trial, Russell Brill appeared before Judge McCurdy and entered into a plea agreement. In return for a plea of guilty to first-degree murder, use of a handgun in a crime of violence, and conspiracy to commit first-degree murder, the State withdrew its notice of intent to seek life imprisonment without parole, and Brill was sentenced on the murder and conspiracy charges to life imprisonment with all but 50 years suspended and 20 years on the handgun charge, all sentences to be served concurrently.
At Harris's trial, the prosecutor indicated "that the State 'might' join in or not oppose a subsequent request for leniency" by Brill (and Bartee). "
"What clearly and deliberately was not disclosed, however, and what the jury was therefore not told, was that, depending on their testimony, the State would not oppose and might even support further leniency." Later, after Harris's trial,
Brill filed a motion for modification of sentence, and, on November 10, 1997, he appeared before Judge McCurdy on that motion. At that hearing, the prosecutor informed the court that "part of the agreement" was that Brill would testify in Harris’s case and that "we told the Court that we would not be opposing the Defense filing a Motion to reconsider and holding that sub curia to see how, in fact, Mr. Brill testified at the trial." The prosecutor added that Brill did testify for the State "and did a very good job" and that he was "not opposed to the Court doing any type of modification to Mr. Brill’s sentence." At Brill’s request, the court modified the sentence by reducing the time to be served to 30, rather than 50, years.
On appeal, the Court of Appeals of Maryland found a Brady violation. According to the court, there was a meaningful difference between what the jury was told -- that the State might join in or not oppose a request for leniency -- and what the deal actually said -- that the State would not oppose leniency and might even support further leniency if satisfied with the testimony by Brill (and Bartee).
Moreover, this difference was significant because
Although more than thirty witnesses testified at trial and there was a good bit of conflicting evidence, the issue of Harris’s role in what occurred and, in particular, who shot Ms. McLeod, hinged largely on the relative credibility of Harris and Brill, who told very different stories.
Specifically, according to the court,
The central, predominating fact here is that the State’s case against Harris depended largely on the jury’s assessment of his credibility as opposed to that of Russell Brill. Directly or indirectly, Brill provided most of the incriminating evidence against Harris. Brill was the one who presented the direct personal-knowledge evidence of the conspiracy, the solicitation, and of Harris’s criminal conduct at the scene. There was no other direct evidence of what actually occurred at the scene of the crime – of who shot Ms. McLeod. The corroboration of Brill’s version of the solicitation and conspiracy – from Jantz, from Joseph Brill, from Jennifer Pettie, and from Lisa Petty -- was derived in large part from what Russell Brill had told them.
In contrast, Harris had no criminal record, and the State produced no evidence of any apparent motive he had to kill his fiancé. There was some testimony about insurance policies on Teresa’s life, but her mother testified that she was the sole beneficiary on those policies and that she, in fact, collected the proceeds. Although the result was not conclusive, the gunshot residue test performed while Harris was at the hospital was negative. In short, there is at least a reasonable probability that Harris would not have been convicted had the jury not believed Brill’s testimony and the repetition by others of what Brill had told them.
On the other hand, the jury was aware that Brill was by no means a saint. He described himself as a thug and a gangster and seemed to be proud of that status. He abused and trafficked in drugs. He not only had agreed to kill Ms. McLeod for $20,000, but told the police and his brother that he had actually done so, and, with his brother’s connivance, he attempted to hide the gun and the clothes he wore on the night of the murder. At least of equal significance, he pled guilty to having committed the crime. His explanation for the plea was that it allowed him to avoid the prospect of a life sentence without the possibility of parole, a prospect that, given the statements by Jantz, his brother, and Ms. Pettie as to what he had told them, was not insubstantial. Notwithstanding what it knew of Brill’s background, however, including the fact that the 50-year sentence imposed on him a week earlier could theoretically be reduced, the jury obviously credited his version of the event....
It is in this “he said/he said” setting that we need to evaluate the probable impact of the jury’s knowing that the State had agreed not to oppose, and possibly even to support, reduced sentences for Bartee and Brill.
Harris was eventually prosecuted a second time for McLeod's murder, and we will cover what happened after that second trial on next week's Addendum.