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 12
Sept. 17, 2012
After Judge Eric M. Johnson gave jurors instructions on their responsibilities during deliberations, Assistant State’s Attorney Robert Hill began his closing argument — and the state’s version of the narrative pieced together from 11 days of testimony.
Hill said Michael McQueen and Gary Smith went drinking on the night of Sept. 25, 2006, but left a second bar after just 10 to 20 minutes, some beer still left in their glasses.
They headed back to the Gaithersburg apartment they shared. Smith called a friend. He was upset and said, “People suck.”
Then a neighbor heard someone coming out of Smith and McQueen’s apartment and going up and down the stairs.
“Down, up, down. That’s Gary Smith,” Hill said. “Michael McQueen has already been shot. It’s midnight.”
Hill said Smith had just “committed the most awful crime anybody could possibly commit moments before.”
At about 12:50 or 12:55 a.m., the neighbor heard Smith wailing.
Hill played the 911 tape, with Smith hysterical and sounding extremely distraught. He tells the operator he came home to find his roommate dead.
“This is a command performance. It’s a colossal lie,” Hill said, exclaiming: “A lie!”
That was not right after McQueen’s death, Hill said. “A whole hour had passed,” he said.
In that time, he said, Smith had driven miles away to a lake, where he had the “presence of mind” to remove bullets from the gun that killed McQueen and throw them in the water along with the .38 revolver.
“Why would you do that?” Hill asked. “Do innocent people do that?”
Hill said the volume on the TV in front of McQueen was so loud no one would be watching it that way. He said Smith was the only one who could have turned it up.
A picture of the bloody scene was projected beside the jurors. Hill pointed out a remote control he said was in McQueen’s hand at the time he was killed.
The jury was shown a video of Smith sitting alone in an interrogation room, his head down, whispering to himself. It was virtually inaudible. But Hill quoted from the audio, which had been enhanced by a Secret Service specialist.
“He said this: ‘Dear God, dear God . . . I can’t believe what I have done. I am so sorry,’” Hill said.
Hill played the enhanced audio, and the only words that could be made out from the seats in the courtroom were “so sorry.” He said the jury will be given headphones and can take as long as they need to review the audio.
Pointing to the long interrogation of Smith by police detectives, Hill said Smith is a “very clever individual.”
“I don’t know whether he got this in the Rangers, whether they train them,” in how to avoid giving out information, Hill said. But, he added, “there’s a little bit of counter-intelligence this defendant” is using.
He discussed the series of different stories Smith told the police. “All lies,” Hill said.
Smith also told detectives he was buddies with Pat Tillman, according to Hill.
“Pat Tillman . . . is not someone who would be hanging out with Gary Smith,” Hill said.
Hill mocked Smith’s story about a late-night trip to his mother’s house, calling it “this bizarre story about a sock mission,” then showed a picture of a sock in Smith’s messy room.
Hill also spoke about McQueen, dismissing the notion that comments he made to a police officer about getting a DUI showed he was depressed or suicidal.
“He tried to get out of it. But who doesn’t?” Hill said. “Is it so unusual to say” the last thing I need in my life is a DUI?
McQueen had plans, was looking ahead and was not depressed, Hill said.
He said Smith and McQueen were “friendly, they were buddies,” but they were not great friends.
“Gary Smith, I submit to you, idolized Michael McQueen,” Hill said. And he said there was “evidence Mike didn’t reciprocate those feelings.”
McQueen told a friend that Smith “ain’t right in the head,” and he wanted to get his own place. McQueen also told someone Smith was “kinda weird, kinda messy,” Hill said.
Maybe McQueen had told Smith something like, “You know, man, this isn’t working out,” and that they needed to “move on” and get separate places to live, Hill said.
“Could that have been a reason why Gary Smith was so upset?” Hill asked.
Gary Smith walked from the defense table to the courtroom seats and handed a young woman he had been affectionate with earlier in the trial a note written on yellow legal paper. Defense attorney Andrew Jezic nervously bit into a chocolate candy bar, stretching caramel from his mouth a bit awkwardly. Glenda McQueen left her seat in the front row and exited the courtroom. Seconds later the jury filed in.
Andrew Jezic started the defense’s closing argument. He thanked the jury, then proceeded to explain what he said were a series of crucial, and uncontested, elements of the case.
He said the jury should start with this premise, taken from the testimony by a key defense witnesses, blood spatter expert Herbert MacDonell: “The arm was up.”
He repeated that, again and again.
There was high-velocity blood spatter on Michael McQueen’s arm, he said. At the time the gun went off, McQueen’s arm was up, Jezic repeated.
Jezic made his argument in a very loud voice, describing how Deputy State’s Attorney John Maloney had hired MacDonell. Jezic called MacDonell “the most important unchallenged, unbiased person in this case…Mr. Maloney chose him.”
As he spoke, Otto McQueen entered the courtroom, and took the seat usually occupied by his mother, Glenda.
Jezic addressed key elements of the prosecution’s forensic case, saying stains on the right side of Smith’s shoe came from rubbing up against blood, not from drips or projected blood from McQueen.
This means the shoe could not have been in a supposed V-shaped void in the blood stain on the carpet when McQueen was shot, Jezic said. “The blood was not falling on Gary’s shoe at any time,” he said.
Jezic said blood was coming from McQueen’s head wound for perhaps 3 to 15 seconds or longer.
He spoke about Smith’s jeans next, addressing testimony that there were blood spots toward the bottom of his pant leg.
“Maybe the only issue is, how’d these two get here,” Jezic said, referring to the spots on the jeans.
He said when Smith heard the shot, he was in the hallway “maybe 3, 4 steps at most” from McQueen.
After Smith “runs around the corner” it’s possible “one or two of those drops could get there…That’s the only minor issue in this case, to explain these drops.”
Jezic said Smith and McQueen were “good friends,” and there was no evidence of disagreements between them or “of a love-hate relationship.”
“These guys, like Gary said, were fine like wine,” Jezic said.
“It makes no sense” Smith would just shoot another Ranger, he said.
The state wants you to believe, he told the jury, that “somehow, for some reason, Gary did such an inhuman act.” Jezic called the notion “absurd.”
“The arm is up, the shoe is a transfer stain, and Gary and Mike got along great,” Jezic said.
“Gary Smith is innocent.”
He told the jury they could convict only “when the state has dislodged from your mind all reasonable hypotheses” of innocence.
“It’s canyons away from reasonable doubt,” Jezic said.
Jezic said if McQueen had told Smith that he planned to move, “Mike would have said it in a nice way” because “he’s such a nice person.”
He said Smith was not mad at McQueen.
Jezic acknowledged that Smith had lied in describing the night’s events.
“We wouldn’t be here if Smith hadn’t lied,” he said.
He then played excerpts from the video recording of the Smith’s interrogation, in which said repeatedly that he had gone into “panic mode” once he discovered his friend had been shot.
Jezic also countered the enhanced audio tape that Hill described.
“Gary’s apology you heard, that’s Robert Hill’s interpretation,” Jezic said.
He said the words “so sorry” could have meant that Smith was so sorry he didn’t do more to help.
Jezic said whatever words he said were “completely consistent” with someone “who loves Mike.”
Doing the right thing is not easy, Jezic told the jurors.
“Doing the right thing makes us regret free,” Jezic said. Five years down the road, “you can’t call Judge Johnson and say, ‘I want to change my vote.’”
Barry Helfand, another Smith defense attorney, continued with the second half of their two-man defense, something Maloney had objected to last week.
“I’m going to try not to shout at you for a second,” Helfand said.
He wrote a phrase on a big pad near the jury: “A doubt based on reason.”
Then Helfand told the jury to start with this premise: “The defendant knows he didn’t shoot Mike McQueen.”
“I don’t know what was in Mike McQueen’s mind,” Helfand said, whether it was suicide or he was just “horsing around” with the gun.
Helfand pointed to testimony from a woman McQueen had been romantic with. McQueen’s mother, Glenda, had said the woman wanted to be a lawyer, and her son had thoughts that they might be a “power couple” someday.
But Helfand said the woman testified that she didn’t want to be a lawyer.
Glenda McQueen “said something wrong,” Helfand told the jury.
Helfand said prosecutors had put forward no reason why Smith would kill McQueen.
“There is no motive in this case,” Helfand said.
A PowerPoint slide echoed that, reading: “Motive????”
Instead, he added, prosectors tried to paint a suggestive picture: “He was crazy, he was weird, wrong in the head.”
If it weren’t for his cross examinations, some of the jurors would have believed it, Helfand said.
“You would have gone back and said, ‘That guy’s weird,’” Helfand said. “I know it’s in some of your notes, because I watched you write.”
But, Helfand continued, it turned out from further questions that weird equated to messy, and “not right in the head translates to Gary had problems with money.”
“A motive is something that normally is found,” he said, except in cases of “some crazy serial killer.” Even in terrible school shootings, explanations of some sort emerge. But in this instance, that was not the case, he said.
Helfand also disputed the notion that Smith had “spontaneously” declared in a phone call with a friend that “people suck.”
“Actually, she was mad at her boyfriend. She complained first about her boyfriend,” he said, and Smith responded: “People suck.”
He said she had told that story differently in an earlier hearing, but now says this version makes more sense.”
Helfand reminded the jury that McQueen had more gunshot residue particles on his hands than Smith did.
Helfand also mocked testimony from a prosecution witness about a blood mist that prosecutors argued left an imprint of Smith’s hand on the carpet.
“This is some of the most magical mist known to man,” Helfand said, noting that Smith did not have blood on the back of his hand. The lead mist particle, as it was supposedly falling toward Smith’s fingers, must have said to all the other mist particles that they have “got to get into all the spaces next to the fingers — but don’t hit those fingers.”
He said that should be the source of reasonable doubt.
“I want to say now, ‘If the hand doesn’t fit. . .,’ but I don’t want to go there,” Helfand said.
Helfand also said there was no evidence Smith had washed himself after the shooting, noting that he did have blood on his palm.
He said when the jurors head back, “there may be, hopefully, some people on our side.”
“Listen to each other please, and the arguments. . .But don’t give up your principles just for the sake of, ‘I’m here three weeks. . .’” and want to get out of here tomorrow.
Since defendants are presumed innocent, and prosecutors have the burden of proof, Deputy State’s Attorney John Maloney got the last word.
He said Jezic’s argument was like a Saturday Night Live skit.
“You ever see the Loud Family?” Maloney asked.
He said Helfand was “as charming and entertaining as ever,” but luckily that’s not the point.
He said the defense team was “somewhat misleading,” and that the standard for jurors is “not beyond all possible doubt.”
“We don’t have cameras in people’s rooms” where authorities film every crime, Maloney said.
“There’s no doubt it’s homicide. Gary Smith did it. There’s no question at all,” he said.
Maloney said that forensic testimony showed that there was no way determine the shooter from the results of gunshot residue tests, but that the defense had made a big deal of the tests nevertheless.
“Doesn’t’ that tell you somebody’s trying to sell you something?” he said.
The defense had noted Smith’s repeated comments to detectives that he wanted to know the results of the gunshot residue tests.
“Wasn’t he a little bit too insistent?” Maloney asked.
Maloney also hammered what he called the “magical socks he had to get” on the night McQueen died. He said Smith left the socks in a basket in the trunk, but got the gun out of the basket, loaded it in the parking lot, and took it upstairs.
“Who’s trying to sell you something?” Maloney asked.
Maloney said McQueen seemed to be having a good night back in his apartment before he was killed. He was “this confident, healthy young guy,” watching football, smoking, drinking, Maloney said. “He was in hog heaven.”
There was also a pack of cigarettes on the living room carpet not far from McQueen, and Smith was a smoker, Maloney said.
“Somebody else was sitting right there. Very interesting,” he said.
He also took up the blood spatter.
“The big one is the void. Use your common sense,” he told the jury, referring to a V-shaped area in the carpet’s blood stain. “Is this just a natural way the blood came out?”
Maloney also told the jury “don’t believe” the things Jezic said were uncontested. “I don’t agree with any of the ones he just said,” Maloney added.
Citing the blood spots on Smith’s jeans, Maloney said: “He was under the blood.”
Maloney also played a series of excerpts from Smith’s interrogation in which he had different explanations for why he had blood on his clothes and body. And he said it didn’t ring true that Smith would panic.
“This is a Ranger trained to handle matters like this,” Maloney said.
He decried “innuendo” regarding McQueen
“There was nothing suicidal about this guy whatsoever. There’s no doubt about that,” Maloney said.
Maloney said the case has been difficult.
“It’s hard for the Smith family. It’s hard for the McQueen family,” he said. “We all wish he didn’t do it. The sad fact is, he did do it. . .He should be held accountable for that.”
What happened to McQueen was not right, he said: “His future was snuffed out.”
The jury filed slowly into the jury room. Johnson called for them at 7:32. As their door opened, one of them said loudly: “Stop, stop, stop!” then added. “Leave all your notes here.” Johnson sent them home, telling them to come back at 9:00 a.m.
One juror said he had a long commute and didn’t own a car, and hoped it could be a bit later.
How about 9:30, the judge asked.
“I was trying to be diplomatic with the rest of my peers,” he said.
They are due back at 9:15 a.m. Tuesday.