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 11
Sept. 14, 2012
Carol Allan, an assistant medical examiner for the state of Maryland, was called by prosecutors to rebut the testimony of the defense’s forensic experts.
She testified about a study in which veterinarians shot sedated calves to see what patterns of blood spatter resulted. “There is a void where the shooter was standing and it actually has kind of a V shape,” she said.
That statement was meant to backup a key prosecution contention: that a V-shaped void in the blood stains around Michael McQueen was caused by Gary Smith’s shoe. Earlier this week, a blood spatter expert called by the defense, Herbert MacDonell, said the angular, V-shaped area was not created by Smith’s shoe, which has rounded contours.
Allan also said a muscular man such as McQueen would not need to use two hands to hold a .38 revolver to shoot himself, something a defense expert had asserted.
One of Gary Smith’s attorneys, Barry Helfand, launched a vigorous cross examination, at one point challenging Allan with an uncharacteristically aggressive demeanor at odds with his general approach to witnesses.
“I learned this yesterday,” Helfand said, a reference to Deputy State’s Attorney John Maloney’s more combative manner. “Answer me! Yes or no?”
Several jurors laughed.
But Allan continued her critique. She said it was wrong for defense expert Vincent Di Maio, a forensic pathologist, to rely on statistics to make the case that McQueen or anyone else committed suicide.
“It’s bad science. It’s bad forensic pathology, and it can be dangerous,” she said. “You just can’t do it.”
Helfand pushed Allan hard.
“Should Dr. Di Maio never have told the jury about any statistics?” Helfand demanded. “Did he do something wrong. . .?”
Allan said Di Maio had not done anything wrong.
“Experts are allowed to have opinions,” she said, adding that he had his, and she had hers.
Helfand asked Allan whether there were any other reasons someone might hold a small gun with both hands, other than that the gun was heavy. Yes, she said, if a person’s hands were shaking and they wanted to steady them.
Would it be reasonable to think that someone might have steadied their hands to make sure they shot “the right spot”?
“That’s reasonable,” she said.
During a regular break in the trial, the public was cleared from the courtroom for a few minutes following a health scare involving Helfand. Helfand has an atrial fibrillation, or irregular heartbeat, and it began acting up, perhaps when he was cross examining Allan.
Jonathan Arden, the former chief medical examiner for the District, testified for the prosecution. He said he disagreed with Di Maio’s conclusion that McQueen shot himself.
As as photo of Smith’s bloody jeans was shown to the jury, he noted a pattern in the stains he termed “highly significant.”
“You’ll see some individual, roughly circular drops of blood,” Arden said. Those drops were “propelled and landed on the pant leg...That pant leg — in other words the person wearing those pants — was in close proximity” to McQueen’s gunshot wound “right at the time” he was shot.
Smith told detectives he was coming around the corner from the hallway when he heard the shot.
Arden also said Smith’s removal of the gun from the apartment after McQueen’s death amounted to creating a “staged” crime scene. Contrary to testimony that Smith had “panicked,” Arden said, Smith’s decision to drive miles away to toss the gun in a lake showed “a person carrying out a plan.”
In his experience, Arden said, people who panicked and wanted to ditch a gun they found at a suicide tended to drop it in the trash or a drawer. “You do something immediate, quick, local,” Arden said.
Helfand did his cross examination sitting at the defense table and listened in to bench conferences using remote headphones rather than walking up to the bench with the other lawyers speaking with Judge Eric M. Johnson.
Helfand pressed Arden on what time he had received CD’s of Di Maio’s testimony for review. Arden was slow to respond, and Helfand finally said he should just pick a time.
“It’s easy,” Helfand said.
“You’re asking me to make something up?” Arden said.
“You know I’m not,” Helfand said.
Helfand asked if Arden considered himself a blood spatter expert.
“No sir,” Arden said.
“I didn’t hear the answer,” Helfand said.
“No sir!” Arden continued. “I don’t have the full training and experience to practice in the area of investigating blood spatters.”
Following a lunch break, Helfand was missing from the courtroom. Maloney came over to Glenda McQueen, Michael McQueen’s mother, to indicate that there was a change of plans. The closing arguments would not go on as scheduled Friday.
Johnson emerged soon after from speaking with jurors privately in the jury room. He sent them home until Monday morning, when he said they would hear closing arguments and then get the case.
Helfand returned to the courtroom. He made a new motion for acquittal, saying the evidence was insufficient to proceed. Helfand was standing behind the defense table, then sat to check something.
“You may remain seated,” Johnson said.
Helfand noted his previous motion for acquittal, made before the defense presented its case. In that instance, Johnson was to consider the evidence in the best light possible for the prosecution in deciding whether the trial should move forward.
Everything was different, now, Helfand said.
“The state must prove...the conduct of the defendant caused the death of Michael McQueen,” Helfand said. And the state had failed to do so, he said.
With apologies, he said, the murder theory in the case was not based on evidence but rather the “vivid imagination” of his “brothers at the bar.”
Helfand summarized the prosecution’s case against Smith: “He is a guilty person simply because he lied...That is the essence.”
Prosecution witnesses have concluded that Smith was “close when the gun was fired,” Helfand said. But, regarding the gun, no prosecution witness “would put it in his hand,” Helfand said.
Maloney said Smith is guilty.
“It’s not even a close call about the sufficiency of evidence in this case,” Maloney said.
Johnson had already told the jury, while Helfand was out of the room, that they would be back Monday to get the case. Still, he jotted notes after hearing Helfand out.
Johnson pointed to pieces of evidence Helfand did not cite.
Smith “loaded his gun and went upstairs” on the night McQueen died, Johnson said.
Testimony that Smith panicked was also something the jury should consider, Johnson said.
“Panic has a certain meaning, ” he said: “a sudden, overpowering fright.”
But removing the bullets and throwing them and the gun into different parts of the lake was inconsistent with that.
“That's hardly a panic,” Johnson said. “It’s hardly sudden.”
He rejected the motion for acquittal.
The defense argued that a lesser “reckless endangerment” offense should be among the options given to the jury, along with charges of second-degree depraved heart murder, involuntary manslaughter and using a gun during the commission of a felony.
Defense attorney David Martella argued that it would be “fundamentally unfair” to Smith if the jury did not have that lesser charge to consider, since some jurors may be looking for another option.
Maloney strenuously objected, saying giving the jurors a misdemeanor option in a murder case was wrong. The defense is trying to give jurors “an out,” Maloney said, but Smith is charged “with causing the death of another human being.”
Johnson said the law seems clear, and it was on Maloney’s side.
“It doesn’t make sense, but it’s the law,” Johnson said, reserving his final ruling until next week.
Helfand termed his heart issue a “minor inconvenience.”
“Come Monday, we’ll be ready,” he said.