By Ernesto Londoño and Ruben Castaneda
Washington Post Staff Writers
Sunday, July 1, 2007

A former prosecutor who is now a Montgomery County judge did not disclose that the only witness in a 1994 homicide case sought and received money to cooperate in the prosecution, the defendant's attorney said in a motion.

The motion also says that the prosecutor on the case, David A. Boynton, elicited false testimony about the payment from the witness, who was a police informant, and her police contact, who is now a captain overseeing criminal investigations. The defendant is scheduled to be retried this month.

Defense lawyer Christopher A. Griffiths's motion seeks to have the indictment against Eric Lynn dismissed, citing prosecutorial misconduct. It is not unusual for defense attorneys to allege prosecutorial misconduct, but criticizing a sitting judge is rare. Boynton is a Montgomery circuit judge.

Through an assistant, who said the judge cannot speak publicly about pending cases, Boynton declined to comment. Montgomery County State's Attorney John McCarthy said he could not discuss the case but said his office will file an "appropriate motion" in response. Prosecutors have maintained that the informant was paid only for her work in drug investigations. Capt. Russell Hamill, the former narcotics detective, said he was barred from speaking about cases that are going to trial.

The case stems from a killing May 25, 1994, at a Silver Spring apartment during a drug rip-off. Police allege in charging documents that Lynn, the police informant known as Sandy and a man described only as "fat guy" walked into the apartment in the 9300 block of Piney Branch Road. Sandy had taken Lynn and the other man, who remains at large, to buy crack cocaine at Ephraim Hobson's apartment, according to court records.

When Hobson brought out drugs, "fat guy" pulled a gun and demanded money and the drugs, according to court records. Hobson also pulled a gun, and shots were exchanged. Sandy ran from the apartment and later called Hamill, then a narcotics detective. When officers arrived at the apartment, they found Hobson's body.

Griffiths has consistently said in court filings and hearings that Lynn was not involved in the homicide.

Sandy identified Lynn, now 37, in a photo array and later identified him on the street. On July 22, 1994, Lynn was indicted on charges of first-degree murder, use of a handgun in a violent crime and conspiracy to commit armed robbery. Police think the "fat man" pulled the trigger. Lynn was convicted on all counts during a bench trial and was sentenced to life in prison plus 15 years.

Sandy testified at the trial under her alias. After being questioned about being a police informant by Lynn's attorney, on cross-examination Sandy told Boynton, the prosecutor, that she had not been paid for her cooperation in the homicide case, according to a transcript of her testimony. When pressed, she said, "I have never been paid for a homicide case."

Hamill, the detective, also testified that Sandy had not been paid for her involvement in the case, according to court records.

During the appeals process, defense lawyers discovered that Sandy had been convicted of theft and had a history of drug use. They argued that a thorough investigation of Sandy would have raised red flags about her credibility.

Griffiths has challenged Sandy's credibility in numerous court filings. He noted that when Sandy contacted Hamill after the slaying, she described the man she knew as Eric as being 6 feet tall and weighing at least 165 pounds. At the time of his arrest, Lynn gave his height as 5-foot-8 and his weight as 120 pounds. Griffiths has also noted that detectives made numerous efforts to get her to positively identify Lynn.

On June 19, 2003, Circuit Judge D. Warren Donohue vacated the conviction and granted Lynn a new trial, ruling that the defendant's lawyer's "performance at trial was deficient." Donohue wrote that "the state's key witness, the only witness linking [Lynn] to the crime, was extremely vulnerable to a cross-examination using the additional impeachment issues which a proper investigation would have uncovered." Appeals delayed the final order for a retrial.

In preparation for the new trial, Griffiths examined confidential informant reports for Sandy and other documents that he said had not been available to the initial defense lawyer.

Griffiths said that in May he was provided with a Sept. 27, 1997, note hand-written by Boynton when he was prosecuting the case. Griffiths says that in the note, Boynton summarized a phone conversation with the lead homicide detective on the case. Griffiths argues in his motion that the note is evidence that Sandy was paid for her cooperation in the case. The note has two exhibit numbers, raising the possibility that it has been provided to the defense in the past.

The note says that the homicide detective, Edward Tarney, told Boynton that when Sandy went to the courthouse to testify before the grand jury she was "ticked off." She wanted cash, but McCarthy, who was then a deputy state's attorney, wouldn't authorize it, the note says. Tarney, who is now retired, said Sandy wouldn't return his calls but spoke to Hamill because he "feeds" her money, according to the note. The last sentence in the note says: "Can she get $ for coming to meetings and [court]?"

The next day, Boynton, Hamill and Sandy met at a Rockville restaurant, where she was paid $100 after they discussed the homicide case and spoke about drug investigations, according to a police record.

An earlier informant payment report, filed June 21, 1994, says that Sandy accompanied narcotics and homicide detectives to Prince George's County, where she identified Lynn. She was paid $200, including $100 by homicide detectives, who were later reimbursed by the narcotics division, according to a police report. At the time of the trial, Sandy had been paid about $3,250 for informant work over 3 1/2 years, according to a court filing.

Police supervisors generally approve an amount of money to be paid to informants in intervals. The $200 payment was part of $1,000 approved to be paid to Sandy for her help in narcotics investigations.

When the case goes to trial this month, in addition to a full-court attack on the credibility of the state's witness, prosecutors will have to wrestle with one additional complication: Joseph Kopera, the ballistics expert who testified in the case, committed suicide in March after a Baltimore lawyer discovered that he had lied about his qualifications.