But in 2011, Maryland’s highest court threw out the conviction, saying that crucial information had been wrongly withheld from jurors. Smith’s retrial began Aug. 30.
Trial Day 10
Sept. 13, 2012
With the jury waiting around outside the courtroom, Assistant State’s Attorney Robert Hill and defense counsel Andrew Jezic sparred over which questions Jezic could ask detective Sean Reilly, who was set to testify later in the morning. In the last trial, the judge sustained a series of objections, and Hill said he thought they could hash that out before the jury entered.
Jezic made clear that one key question he and co-counsel Barry Helfand wanted asked was whether Gary Smith walked from his car down to a lake to ditch the gun used in Michael McQueen’s murder. Smith had told detectives he threw it from a bridge.
Judge Eric M. Johnson pushed Jezic on the relevance, and finally Jezic said: “The issue is, Gary Smith did not wash anything.”
There was more back and forth between the judge and lawyers until Jezic declared: “This is our witness,” and began to explain how the defense is entitled to make its case.
Johnson told Jezic they were not on the record, so there was no need to explain the law.
“I’m sorry I’m expressing frustration,” Jezic told the judge, adding that the prosecution spent many days laying out the facts of their case, and the defense needed to be able to do the same thing.
“It’s a central contention of our case that he did not wash his hands or wash any part of his body,” Jezic said.
Finally Johnson, in talking about the lake question and others, said of Jezic, “Let him ask all these questions he wants to…I don’t see any relevance at all.”
“I apologize for expressing frustration,” Jezic repeated.
“You’ve got 12 frustrated people sitting there,” Johnson said, referring to the still-empty jury box.
Jezic called Reilly, the lead detective in the case, and prosecutors made a quick objection.
“I will sustain every objection to every leading question,” Johnson said.
Reilly was asked to look at the text messages on McQueen’s red cell phone in the days before McQueen’s September 26, 2006 death.
Reilly said there were 75 sent messages. The last one was on September 10, at 3:08 p.m.
During the August 5 to September 4 billing period, there were 91 sent messages, Reilly said.
Jezic said he was not asking about the content of the messages, just the dates of messages going backward in time.
“The one before that?” Jezic kept asking Reilly, who responded: “September 5. . .September 2. . .September 1. . .”
In one time period there were 50 messages, Reilly said.
“Did you ever access Michael McQueen’s email?” Jezic asked.
Reilly said he remembered accessing McQueen’s MySpace account but didn’t remember looking at email.
None of the actual content was discussed.
Helfand called Detective James Drewry, and asked if he was still the detective who has been involved in the case.
“Last time I checked,” Drewry said.
Helfand asked if Drewry had seen any evidence on the morning of McQueen’s death that Smith’s shoes were muddy or his clothes were wet?
“No,” Drewry said.
He was done in less than two minutes.
The defense called Vincent Di Maio, a forensic pathologist and former military wound specialist who was chief medical examiner in San Antonio for 25 years, then ticked through his background: Author of a book titled “Gunshot Wounds.” Co-author of “Forensic Pathology.” Editor of the American Journal of Forensic Medicine and Pathology. Chair of the Texas Forensic Science Commission.
His conclusion in the shooting death of Michael McQueen?
“This was a self-inflicted wound,” Di Maio said.
He said he considered three aspects of the case.
First, the circumstances leading up to and surrounding the death. On that front, Di Maio said, “it’s kind of a wash.” Statements that McQueen may have been depressed “are not very conclusive,” and there was “no history of arguments or fights” between Smith and McQueen.
“There’s no good history either way of a reason for shooting yourself or killing somebody,” Di Maio said.
Second, he considered “the actions of the defendant, which seemed bizarre.”
Either Smith was acting to “conceal a crime” or was “a drunk young guy who panicked,” Di Maio said.
Di Maio moved on to what he said was the third area he considered, the physical evidence and autopsy.
“This is a single gunshot wound to the right temple,” with the muzzle in contact with the skin, Di Maio said. He said there were tears in the wound extending up to a quarter of an inch in length.
At the 5 o’clock position on the wound there was also a circular imprint from the .38 special’s ejector rod, he said, which shows there was “hard contact with the head at the time of the discharge.”
The gun “was held at an angle,” Di Maio added, which “is consistent with a self-inflicted wound. What most people do is they put the gun up at an angle.”
He said the “trajectory is the normal trajectory you see in a self-inflicted wound. . .You point backwards and upwards. This you see in virtually all self-inflicted wounds.”
Jezic asked the basis for his testimony.
Di Maio pointed to his years of experience, a study he co-authored of more than 1,700 suicides using firearms, and the evidence he reviewed, including a black-and-white photograph projected on a television beside the jury, showing McQueen’s wound after the blood was washed from the side of his head. A ruler covered McQueen’s right eye in the frame.
“The trajectory is from the right temple in an upward direction. . .” he said.
For the study, he said he and his colleagues collected information on 1,704 suicides between 1984 and 1998, including materials on the wounds, toxicology reports, and whether there were suicide notes, among other things.
He said 97.9 percent were contact wounds, 83.7 percent shot themselves in the head, 50 percent shot themselves in the right temple and 31.9 percent involved alcohol.
“In this case, we had contact, right temple” and a blood alcohol reading of .13 percent at the time of autopsy, he said. “It all has the characteristics of suicide,” he said, but added that you can’t make a determination of that based on percentages.
“It’s based on the pattern, not just one thing,” Di Maio said.
Di Maio said in 672 of the 1704 cases there was “no known motive for suicide.”
He also noted McQueen’s blood alcohol level of .13 percent. Di Maio said “at .10 you have impairment of your thinking process. . .You’ll do stupid things.” He said alcohol is a depressant that removes inhibitions.
Deputy State’s Attorney John Maloney pressed Di Maio on how much he gets paid and how many hours he was hired to work on Smith’s case.
“The wife takes care of the money,” Di Maio said.
Maloney gave him records to refresh his memory that he charges $400 an hour. That was $6,400 for two days of work, plus another 6 hours at $2,400 for his work in previous proceedings, Maloney said.
“Mr. Smith has spent a lot of money on this case, do you understand that?” Maloney said. Di Maio agreed. Maloney added: “An enormous amount of money.”
Maloney put a quotation up from one of Di Maio’s books in which Di Maio describes a hypothetical scene in which a man is shot in the temple, and no gun is present. In such an instance, “one might then conclude this is a homicide,” he wrote.
Di Maio tried to respond, but Maloney moved on to other questions.
Maloney pointed to a report Di Maio submitted at an earlier proceeding that Maloney said listed factors Di Maio considered in coming up with his conclusion that McQueen had committed suicide.
Maloney said the finding that more than 97.9 percent of suicides with guns caused contact wounds was simply “common sense.”
The prosecutor also cited what he implied was inconsistent testimony Di Maio had given in an unrelated case. Maloney said Di Maio had concluded that blood blowing back on a trigger hand was consistent with suicide in that case, but that was not what happened in McQueen’s case.
Di Maio said that in the other case, the gun’s barrel was inside the person’s mouth, not pointed at the temple. “It’s like comparing apples and oranges,” Di Maio said.
An incredulous Maloney also peppered Di Maio with questions about what he said was the last factor in Di Maio’s earlier report concluding that McQueen committed suicide: the fact that, besides ditching the gun, Smith had not otherwise altered the crime scene.
Maloney reiterated the point: You used Smith’s behavior at the scene to conclude McQueen had committed suicide? he asked.
Di Maio said Smith could “remove the body, conceal the body,” but didn’t do so.
So because Smith didn’t move the body, McQueen committed suicide? Maloney asked, before moving on to a series of other argumentative exchanges.
When Jezic followed up, he asked Di Maio about the quotation Maloney had put up, regarding a man shot in the temple with no gun found.
Di Maio read to the jury from his book. After reading “…one might then conclude this case is a homicide,” which is where Maloney’s quotation ended, Di Maio continued on.
In the passage that followed, Di Maio wrote that if it turned out later that the man shot in the temple with no gun around faced an indictment in a half-million dollar embezzlement scheme, and his wife took away the gun and suicide note, the conclusion in the case would be different.
Maloney countered that McQueen had not been indicted for anything.
1:17 p.m.: The defense rested. The prosecution will call rebuttal witnesses Friday, defense lawyers will cross examine them, and closing arguments will follow. Judge Johnson told jurors they should expect to get the case by day’s end.