David Eugene Burley Jr. and Shareef Sinkler testified for the prosecution in last week's trial of Kellie Day Martin, the second Laurel teenager tried for murder in the highly publicized slaying last year of Salvadoran immigrant Gilberto Hernandez.
But they didn't get the customary rough treatment from the defense, whose lawyers often try to trip up prosecution witnesses to help their clients win acquittal.
Instead, David Harding and John McKenna, both assistant public defenders, questioned Burley and Sinkler in a gentle way. It was a sharp departure from the treatment Sinkler, Burley and the other immunized state witnesses encountered five weeks earlier, when another teenager, Cochise Iraun "Cody" Queen, stood trial for killing Hernandez, 40.
Then, defense attorney Paul S. Christian administered blistering cross-examinations to all of the state's immunized witnesses, shredding the credibility of all four by getting them to either admit that they had previously lied to the police or the grand jury or to back away from previous statements about what happened the night of the attack.
Although the defense tactics in the Martin and Queen trials were markedly different, the results were similar: Queen, 18, who knocked Hernandez to the ground, fracturing his skull, was acquitted of first-degree premeditated murder, first-degree felony murder and second-degree murder; he was convicted of involuntary manslaughter and two counts of second-degree assault on Oct. 6. He has been sentenced to 15 years in prison.
Last week, Martin, 19, was acquitted of first-degree premeditated murder, first-degree felony murder, second-degree murder, and voluntary and involuntary manslaughter. He was convicted of three counts of second-degree assault for kicking Hernandez and for chasing his brothers, Juan and Tomas. Martin is scheduled to be sentenced Dec. 16. He faces a maximum of 10 years in prison for each count.
The scene in court last week further inflamed some Hispanic advocates who believe that State's Attorney Jack B. Johnson is not prosecuting the case vigorously. Bill Stagg, director of the Hispanic Resource Center, even accused Johnson of "throwing" the case.
Some legal observers have said they are puzzled at Johnson's strategy of asserting that there was no clear motive for the crime, contrary to the findings of Laurel police that the attack began as a robbery--which would make the defendants vulnerable to first-degree felony murder convictions.
Sinkler, like Burley and two other teenagers, originally had been charged with murder and robbery. But Johnson dropped the charges in exchange for their testimony.
"You didn't want to hurt anyone, did you?" Harding politely asked Sinkler.
"No," Sinkler replied.
"You have to testify truthfully here, or you lose your immunity deal and could be prosecuted for first-degree murder?"
By contrast, the only prosecution witness Harding and McKenna challenged last week was Juan Hernandez, Gilberto's brother, who testified that the attack began as a robbery.
As part of their strategy, Harding and McKenna adopted most of the prosecution's theory of the case: that the attackers were simply "messing around"--a phrase previously used by Johnson--and that they didn't try to rob or harm anyone.
Not challenging key prosecution witnesses is not a common defense tactic, but it can be an effective one, said Nikki Lotze, a Riverdale lawyer who has successfully defended clients charged by Johnson's office with murder.
"If the state's witnesses aren't saying anything that hurts you, there's no need to go toe to toe with them to challenge their credibility," Lotze said. "If what they're saying is consistent with your theory of the case, there's no reason to make a jury wonder whether they're telling the truth."
In both trials, Circuit Court Judge E. Allen Shepherd dismissed the charge of first-degree premeditated murder but allowed the jury to consider the first-degree felony murder charge--which Johnson has said there is no evidence to support.
Felony murder would have required a finding by the jury that the slaying occurred during the commission of a robbery, as Juan Hernandez testified in both trials. Johnson has said that Juan Hernandez has no credibility.
In both trials, prosecutors offered no clear motive for the crime--until closing arguments, when Assistant State's Attorney Fran Longwell argued that the attack occurred during a robbery and that the defendant should be found guilty of felony murder.
The Hernandez brothers were attacked just before midnight Sept. 4, 1998, as they returned to their Laurel apartment from their jobs at a restaurant on nearby Route 1.
Tomas Hernandez, 26, was riding his bicycle. He has testified that several teenagers chased him to the landing of his apartment building and grabbed for his bicycle. Tomas Hernandez testified that he wrestled the bicycle away and escaped into his apartment.
Minutes later, Juan and Gilberto Hernandez were walking home when, according to court testimony, Martin and as many as six other youths ran after them. Juan Hernandez testified that Martin demanded money and brandished a knife. Juan Hernandez ran one way down a street and escaped unharmed; Gilberto Hernandez ran toward his apartment building, where he was blindsided by Queen, who slammed into him with a football-style tackle, according to testimony. Hernandez flew into the air, the back of his head landing on a concrete sidewalk.
Prosecutors argued that while Hernandez lay unconscious after Queen's tackle, Martin kicked him soccer-style in the head, causing a second skull fracture; Harding and McKenna argued that Queen nudged him to see if he was seriously hurt.
In his closing argument, Harding used the state's attorney's tactics against the prosecution when he argued that Martin should not be convicted of felony murder: "The state doesn't even believe what [Juan Hernandez] says. They didn't indict for robbery or for a weapons charge. The state doesn't even believe it."
The third defendant, Steven Darby, 17, is scheduled to stand trial Nov. 29.