EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, September 15, 2015

Harris v. State: The Most Important Case for Adnan Syed?

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.



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Can you elaborate on how this applies to Adnan's case?

Posted by: ghostoftomlandry | Sep 15, 2015 9:34:59 AM

There is, in my opinion, a huge difference in this case and Adnan's case. Adnan never testified and so the he said/he said scenario does not arise in this case.

Of course, one can argue that does not matter. But given that the jury never got a plausible alternate theory, I doubt the jury result would have been different. There was only one credible theory put forth at the trial. Adnan had motive and the cellphone pings (whatever you may NOW think of its validity) corroborated Jay's story.

Posted by: S | Sep 15, 2015 9:39:13 AM

Also, has the undisclosed team now dropped "Jay did it for a motorcycle" theory in favor of "Jay did it for his life" theory? I was really expecting to hear more about the monetary incentives in yesterday's podcast.

Posted by: S | Sep 15, 2015 9:44:02 AM

ghostoftomlandry: If there was more to Jay's plea deal than what was disclosed, it would be a Brady violation.

S: I suppose it works both ways. You could argue that the lack of testimony by Adnan made Jay's testimony more important and impeachment of that testimony more essential.

Also, I don't see the two theories as mutually exclusive.

Posted by: Colin | Sep 15, 2015 9:46:03 AM

Isn't that like saying "If there is video of someone else killing Hae, then..." It seem so much time is spent on imaginary situations and how that would change things.

Is there any evidence that there is something more to Jay's plea deal?

Posted by: ghostoftomlandry | Sep 15, 2015 9:57:51 AM

ghostoftomlandry: No, there's nothing in the way of admissible evidence regarding there being something more to Jay's plea deal. As we noted on the podcast, it's basically "where there's smoke there's fire" speculation. This post is simply about setting forth the legal framework in case there actually is fire.

Posted by: Colin | Sep 15, 2015 10:16:07 AM

Let me see if I can help to show some of the issue, to those who don't seem to get it. Whose side was Benroya representing when she took Jay's case-her allegiance was to Jay or to the state (who gave her this case?)

If her allegiance was to get the best deal for Jay rather than for the state, perhaps her motivation would be to tell her client to reveal as little as possible, perhaps even advising him to take the fifth on many questions, so as to avoid incriminating himself. Heck maybe she would have even decided there was not any evidence to convict Jay, so she might advise him not to cooperate at all. Likewise she couldn't possibly know if the state was going to be lenient on Jay, if she was there for Jay and not for the state. Clearly if she was working for Jay and Jay alone, it would not be in her interest to make it easy for Urick and the prosecution to pin blame on Jay.

Likewise, if her interests were for the state, and not for Jay, why would Jay want or need this lawyer?

So who do you thinks interest Benroya had in mind? How can it be both, those are conflicts of interest by definition. Jay's interest would be protecting Jay. The state's interest would be protecting Hae, and justice. Those two can not be the same thing.

Unless of course there was a deal put in place that assured Jay that if he did what she told him, the state would protect him. That is the problem, and it looks like that is exactly what happened.

Posted by: hoovill | Sep 15, 2015 10:41:16 AM

hoovill: I just want to clarify that I have every confidence that Benaroya was working for Jay's interest and Jay's interest alone. She did the best she could with the situation she was handed, and I don't think she had any conflict of interest or was working for the State in any way.

Posted by: Colin | Sep 15, 2015 10:56:59 AM

Hi Colin, hope all is well.

In episode 11, as I listened to the bit about Jen and Jay getting pulled over when he was arrested for disorderly conduct, I was wondering if Jen was in any way arrested or charged with anything. I was thinking it'd add an interesting layer if she was also arrested for drug possession or something of that nature and also wound up getting some kind of plea deal. Maybe this doesn't make sense, but wondering if there are any records on her around the same day Jay was popped.


Posted by: Jake | Sep 15, 2015 11:16:01 AM

1. Why would none of the 'evidence' be admissible re. the messiness of this plea deal? What kind of evidence would be admissible?
2. Could CG have done better at hammering home that Jay had essentially had the choice of risking the death penalty versus a plea plus testimony against Adnan?
3. Do you have any evidence/reason to believe there was more than one deal? This seemed like a bit of a throwaway comment at the end of the episode...have I missed something? Is the implication that there was a deal relating to the stet? Or were you referring to a possible informal deal with Jen? Or a totally different deal with Jay?
4. Finally, unless new evidence of there being more to the deal than claimed in court comes up, am I right in thinking that the appeal process can’t look at this again in its current form?

Posted by: Cupcake | Sep 15, 2015 11:28:09 AM

One more question: would a lawyer really ever give an honest answer to the question 'Do you think your client is guilty?' It seems like, in order to continue getting work, the answer should always be 'no'! (Unless the client has since admitted their guilt).

Posted by: Cupcake | Sep 15, 2015 11:30:36 AM

S: " But given that the jury never got a plausible alternate theory, I doubt the jury result would have been different. There was only one credible theory put forth at the trial."
CG defended Adnan on the basis that Jay did. That makes the case not so different from Harris.

Posted by: CR | Sep 15, 2015 12:41:46 PM

There was so much in the last Undisclosed episode. Are you going to say something more about the fact that the defence did not have Jenn's Grand Jury testimony. Would there be a duty for the prosecution to disclose this or would it be a failure on CG's part possibly going to an IAC claim?

Posted by: CR | Sep 15, 2015 12:44:11 PM

Jake: We have no record of Jenn being arrested or charged. We just have the note about her meeting with the prosecutor on March 4th. I wish we knew more.

Cupcake: (1) What I mean is that we have no admissible evidence beyond what was already presented in court during Adnan’s trial. (2) I doubt that CG knew this information. (3) It’s the whole sub curia thing and all the oddness surrounding the plea. Even the judge noted this. (4) Correct. There has to be new evidence.

CR: Good point. The prosecution had to disclose Jenn;s GJ testimony under Jencks/Carr.

Posted by: Colin | Sep 15, 2015 12:56:56 PM

CM slightly misstates Harris' holding. In my view what Harris speaks to is the materialality of the Brady violation. Stripped to its essence the legal problem in Harris is that the prosecutor misrepresented the nature of the plea deal in order to hide the quid pro quo it embodied. If the jury had know what the plea deal really said, they might have evaluated Brill's credibility differently.

But I'm not convinced that in Adnan's case the prosecution misrepresented the plea deal in any significant way. And that's the key point of Harris....not the he said she said part of it.

Posted by: Daniel | Sep 15, 2015 1:30:38 PM

Daniel: I actually agree with you on the holding of Harris. And, like you, I'm not convinced that there was any misrepresentation by the State in Adnan's case. I'm just speculating that there might have been such a misrepresentation.

Posted by: Colin | Sep 15, 2015 1:50:28 PM

Hi Colin,
Listening to “The Deals With Jay” I was shocked when I heard that within four days of “E” telling Adnan’s defence team that Jay said he was not going to testify against Adnan, Jay was wrapped up in a plea deal. Surely this goes to confirm that the prosecution had a mole in the defence camp. I am thinking that this mole may have also been a saboteur, maybe we have been blaming “The Gutz” and she wasn’t totally to blame. Did the mole mislead her into thinking that the Asia alibi was pointless? Were subpoenas sent to incorrect addresses deliberately and key evidence like Jenn’s Grand Jury testimony removed from the file? Was the failure of the defence to not interview other key witnesses, also the work of the mole? I know this is probably stretching it a bit; I do love a good conspiracy theory, but have you looked into if any of the Law Students/Clerks that worked for Gutierrez at the time went on to a career in the Prosecutors office?

Posted by: Kim | Sep 15, 2015 5:59:39 PM


Its great that YOU have confidence in Benaroya's allegiance. Why you have that confidence, I am not sure, other than you said she sounds honest. But this wasn't really my point. My point was this is why this arrangement should never be allowed.

But furthermore, how can you really believe that Benroyas allegiance was ONLY to Jay, when she agrees to have him make a guilty plea, within about one hour of meeting him! How can she not have said, Ok, I am taking Jay's case. Now I am going to need a few weeks to study his case to make sure that he really is guilty and that this is the best plea? How in the world can that be considered responsible representation?

Apparently even Jay, as uninformed about the law as he was, also was suspicious of her allegiance.

Can you imagine a public defender taking a case from a client, and then within the hour going to the court and having that client plead guilty to murder. In an hour! ??

Posted by: hoovill | Sep 15, 2015 6:46:18 PM

Kim: I don't think there was a mole, but I do think there was someone in her office with loose lips. And we all know what loose lips can do.

hoovill: I definitely understand and appreciate your concern. It's the same one I had before talking to Benaroya. We will be covering this topic on the Addendum. I think she has a good explanation.

Posted by: Colin | Sep 16, 2015 7:24:56 AM


It seems to me, CG missed a great opportunity here. When Jay was explaining that he was concerned about Benroyas allegiance to him, why didn't she simply ask him why he continued to use this lawyer to represent him then? He answer almost certainly has to be that he was told she and Urick had a deal. In other words, he knew there was a benefit to him have her as his representation as opposed to a public defender. The question of him knowing he was receiving a benefit would have to have been answered.

That is part of the frustration with CG. Whenever Jay was trying to answer questions, instead of letting him put his foot in his mouth, as he often seemed about to do, she would interrupt and give the answers for him. Her cross examination style was just painfully awful. When she was asking him about stopping the tape recorder, I wanted to just yell, CG stop talking, let Jay explain! Stop just forcing these yes and no answers on him! Awful.

Posted by: hoovill | Sep 16, 2015 10:33:45 AM

Why wasn't jay asked to wear a wire around adnan in order to get evidence? Or was he asked and he refused? Thought cops did this all the time to clinch the case.

Posted by: Cathy | Sep 16, 2015 12:36:37 PM

Cathy: The police on numerous occasions overlooked or simply didn't investigate into anything that could have been in favor of Adnan not committing the crime, so I'm not surprised that they didn't have Jay wear a wire in order to collect evidence-it could have had the potential of exonerating Adnan.

Posted by: Penny | Sep 16, 2015 1:29:36 PM

CM, I also credit Benaroya's explanation. By the time she got in the case, Jay had already made numerous detailed admissions to the police (a scenario often encountered in the criminal defense world), and at least some of those statements were corroborated by statements of other witnesses, like Jen. Benaroya had nothing to work with--she can't go back in time and advise Jay to take 5. Regardless of whether or not Urrick actually was considering kicking Jay's case to the county, the fact is that he had both the discretion and the evidence to do so.

So, I'm not surprised Benaroya advised Jay to plea. I AM surprised, however, that this was done within a matter of hours of her meeting Jay. It's one thing if he had knowingly waived counsel and was adamant about taking a plea and she was just called in to make sure he understood the rights he was waiving-- but it doesn't seem like that was the case based on Jay's later suspicions and Benaroya's own account. I can't imagine a prosecutor not allowing the just-retained defense attorney a day or more to speak to the defendant before pleading him out to murder. In fact, Urrick should have insisted on this to avoid the potential for a collateral attack on the plea agreement down the road on the basis that it was not knowingly and voluntarily entered. Also, to avoid the more imminent risk that Jay would not respond "correctly" to the judge's voir dire. I simply can't rationalize Urrick's motive for this timeline--what difference would a week have made? If I'm Benaroya, there's no way I'd advise Jay to enter a plea within an hour of meeting him unless I'm nearly certain I won't be post-convicted for it later. For this reason, I do wonder if there wasn't some mutual understanding or additional assurances surrounding Jay's plea deal that were not reduced to writing--something more akin to the deal in Harris.

Posted by: S | Sep 17, 2015 8:05:49 PM

hoovill: Yes, this was a big missed opportunity by Gutierrez.

Cathy: I don’t know whether he was asked and refused or never asked.

S: We will have more on this on next week’s Addendum, and that additional information will explain things more.

Posted by: Colin | Sep 18, 2015 5:10:05 AM

In terms of Benaroya’s legal responsibility, her obligation was to Jay as his attorney and she owed nothing to the state (other than the general duty of every lawyer to work within the law). As to whether being given the job by the prosecutor was problematic, from Jay’s perspective I don’t think that it was; I see no reason she wouldn’t prepare a good defense for her client regardless of the circumstances of her selection. From Adnan’s perspective, on the other hand, there is the possibility of the referral serving as part of a quid pro quo for Jay’s testimony.

In general, defense attorneys having a close working relationship with prosecutors is not particularly unusual. Given that the two often interact over the course of hundreds of cases, it is inevitable that the temptation to make certain accommodations in a given case will arise. For example, a defense attorney might know that if he makes the prosecutor jump through hoops by filing requests for extensive “bills of particulars” (a formal, detailed explanation of charges only used currently in a few states), the prosecutor may make it more difficult for him to get Brady materials in other cases. Similarly, if the defense attorney doesn’t play ball in a plea negotiation over a case the prosecutor really wants off of his desk, the prosecutor can refuse to offer favorable pleas to other clients. I’m not saying such conduct is universal, but it does happen, and the system makes it inevitable. That is part of the reason certain reforms, such as prosecutorial open file policies or active judicial participation in plea bargaining, are often advocated.

As to the speed of Jay’s plea deal, I don’t find that especially shocking. Accessory after the fact to murder in Maryland carries a penalty of up to ten years’ incarceration, so the two years recommended in the plea was a pretty good bargain. And given that Jay had admitted his participation in detail, and the voluntariness of his confessions and the status of his Miranda waiver were apparently beyond reasonable question, there was not a whole lot else to research. And, of course, Jay ended up with an even better, suspended sentence (which may have been part of a mutually understood deal not expressed on the face of the plea). Given the crushing caseload many defense attorneys operate under, rapid pleas are not as uncommon as one would think or perhaps hope.

Posted by: Josh | Sep 18, 2015 7:14:11 AM

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