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 3
Sept. 4, 2012
Prosecutors called a pair of Montgomery County police officers to testify about collecting evidence, particularly of gunshot residue, after Michael McQueen was found dead in September 2006.
Officer Lawrence Haley said he put on gloves and dabbed former Army ranger Gary Smith’s hands for gunshot residue. “It’s like a sticky surface that collects whatever is on the hands,” Haley said. He also used swabs to collect DNA.
Prosecutor Robert Hill put up a photograph of McQueen, leaning back in a chair with his head hanging backward, on a screen beside the jury. “There was a lot of blood in the area where he had been shot,” said Kimberly Clements, a forensic specialist with the Montgomery police.
Glenda McQueen, Michael’s mother, shut her eyes and kept them closed.
Clements said she dabbed McQueen’s hands, front and back, with a gunshot residue collection kit.
Glenda McQueen, who has traveled to Maryland from New Orleans for the trial, went home for the Labor Day weekend. The storm left the house dark, and the contents of the refrigerator ruined, but the family’s home was fine. “We were just lucky the levees held this time,” she said.
Gunshot-residue expert Alfred Schwoeble, a forensic scientist and technical advisor to the Pennsylvania-based RJ Lee Group, said he tested the samples from both men. He told the court he has worked for 49 years in materials analysis, including collaborations with the FBI, and has testified in about 200 cases.
Gunshot residue comes from the primer that ignites the gun powder in a cartridge, he explained. Firearms leave “a lot of particulate” in the vicinity of the discharge, he said. He used a scanning electron microscope to test what was on the men’s hands.
He said there’s a danger of the “ ‘CSI’ effect,” in which juries, but also lawyers and judges, can develop expectations about what they might see in court because they watch shows like “Law & Order.” He also said it’s easy to find books online about cleaning up crime scenes, including gunshot residue.
Prosecutors prepared to play the jury a video demonstration narrated by Schwoeble. “I apologize for the music on the video. I don’t know why I let them talk me into that,” he said.
To a brassy, jazzy musical accompaniment punctuated by electric guitar riffs, Schwoeble demonstrated the “plume” of material that emerges from the front and back of a .38 revolver when it is fired. The gun used in McQueen’s death with a .38.
Schwoeble testified that more particles were found on McQueen’s hands than on Smith’s, but said he could not make any conclusions about why that was or who fired the shot that killed McQueen.
“You can’t tell who the shooter was,” Schwoeble said.
Barry Helfand, Smith’s lawyer, asked if Schwoeble had done tests showing what the plume would look like if there was something in front of the muzzle, “like a head.”
Judge Eric M. Johnson said: “If you did, don’t answer that question.”
A couple of jurors looked at each other awkwardly.
With no jury in the courtroom, lawyers on each side sparred over whether testimony from witnesses who said Gary Smith had previously mishandled firearms should be allowed at the trial.
Deputy State’s attorney John Maloney said McQueen’s history had been considered fair game, including a protracted questioning of his mother, Glenda, and discussion of a drunk driving arrest.
“The victim is completely put on trial,” Maloney said. “What’s good for the goose is not good for the gander.”
If the jury hears about problems with Smith’s handling of guns in the past, Helfand asked the judge, would they also be told about “the other 750 days he properly handled a weapon.”
The judge didn’t immediately rule.
Army Ranger William J. Burkett II was Smith’s direct supervisor , including at Bagram Airfield in Afghanistan. Hill asked him if it would have been unusual for an intelligence analyst such as Smith to go beyond “the wire,” meaning out amidst the dangers surrounding the base. Burkett said it would be rare, and such missions or trips would have to be coordinated with him, which did not take place.
“Did he ever report to you that he had shot a 12-year-old child who was wearing a grenade vest?” Hill asked, referring to Smith.
No, Burkett said.
“Did he ever report to you that his body plating, his bullet proof vest, had been damaged because he had been shot?” Hill asked.
Under questioning from Helfand, Burkett said he had spoken on Smith’s behalf for a promotion. “I gave him high marks,” Burkett said.
After Judge Johnson asked the jury again to leave the room, Burkett also said Smith was sent back to the United States “a little early” in 2005 “for poor performance.”
“He wasn’t doing his job toward the end” of the deployment, Burkett said. He added that Smith “wasn’t showering” even when facilities were available.
Helfand said he could tell “I won’t like his answers” once the jury returned, so Burkett was allowed to leave the witness stand without further questioning.
Much of the afternoon was devoted to questioning Ronnie McKay, a former Ranger communications specialist, who said he was close friends with McQueen and also a friend of Smith’s.
McQueen was supposed to move in with McKay in the Baltimore area, but that fell through because of McKay’s relationship issues with a former girlfriend he was staying with. McQueen and Smith got a place together instead.
Shortly before McQueen died, McKay said McQueen told him “he had to leave the place because he didn’t like the situation in the apartment with Gary.”
McKay also quoted McQueen as saying: “Gary’s not right in his head.”
Maloney asked if McQueen gave a reason: “He said he would tell me later,” McKay said.
After McQueen’s death, McKay and Smith spoke by phone. Smith told him that he and McQueen had been partying, and once Smith went to the bathroom “he heard a boom,” McKay said.
Defense attorney Andrew Jezic asked if McKay had ever seen the men engage in even the “smallest argument.”
“No,” McKay said.
McKay said his pastor had an intelligence job lined up for McQueen at the time of his death. “He just had to go to the interview,” McKay said. “Everything went so fast. He passed away, so things didn’t work out.”
Jezic asked McKay if the “not right in the head” comment referred to Smith’s money problems, but prosecutors objected. McKay had previously said he thought McQueen was talking about his roommate’s money issues, according to Jezic. But McKay countered that he did not know the context of McQueen’s comment and felt he had been lied to by a defense investigator.
McKay said he loved the “brotherhood” of being a Ranger. “It’s the best job I ever had in the military,” he said. He said McQueen was “humbly funny,” and had a glow that made people want to be around him.
“He brings that out in everybody,” McKay said. “Gary knows. Gary knows very well.”
Jezic asked if he still considered Gary Smith a friend.
“Always,” McKay said.
McKay also described visiting the two men’s Gaithersburg apartment in September 2006 and playing around with a .38 revolver, flicking the cylinder with his finger.
McKay left the courtroom, but returned later during a break. He walked up to Gary Smith and shook his hand, then hugged him. McKay then walked over to Glenda McQueen, leaned over, and hugged her too.
William Ryan, now a civilian at the Department of Defense, said he didn’t want to “undersell” the job of an intelligence analyst in Afghanistan — the role held by McQueen, Smith and, at a higher level, Ryan himself. But generally, he said, “It’s like being in the marching band during the football game.”
McQueen was on Ryan’s intelligence team, and they deployed together twice to Bagram. McQueen also had an assignment at a more remote base with special forces, Ryan said.
Jezic asked Ryan if a ranger in charge of flying unmanned aircraft might at times be assigned to go “outside the wire.” Ryan said yes, but added that he had no knowledge of Smith ever having that job.