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New Trial Granted 15 years later in Howard County murder.

Posted 12/16/10

A former Wilde Lake woman who pleaded guilty to voluntary manslaughter after fatally stabbing her live-in boyfriend more than 15 years ago has been granted a retrial.

Tatyana Kogan, 42, was sentenced to six months in prison in 1995 after her defense attorney convinced a Howard County Circuit Court judge that Kogan lived in constant fear of her abusive boyfriend and that she stabbed him to death with a steak knife in order to defend herself during a domestic dispute.

On Oct. 11 1994, Kogan, then 26, placed a panicked phone call to 911, informing the dispatcher that she had just “killed her boyfriend” and “stuck a knife in his heart,” according to a March 9,1995 article in the Howard County Times.

Officers arrived on the scene to find Andrei Gordon, 31, still alive, clutching his chest in pain and bleeding severely.

At the time, Kogan pleaded guilty to manslaughter.

Now, however, she has been granted a retrial after asserting that she did not realize the plea would affect her immigration status. She and her new defense attorney, Andrew V. Jezic, also say that she entered the plea under emotional distress because her boyfriend’s associates had threatened her young daughter’s safety.

Kogan, originally from the Republic of Belarus, a small Eastern European country, has been a legal resident of the U.S. since 1990.

She owns a consulting firm that helps American companies sell products to Eastern Europe.

In 2007, she received a notice from the Department of Homeland Security stating that she was not allowed to travel abroad, which she asserts is essential for her profession, and that she might face removal charges as a result of her guilty plea, according to court documents.

“The reason that she took this compromise deal was because she was not in the right frame of mind and did not get good advice,” Jezic said. “She had every right to do what she did and she would have been acquitted had the case gone to trial.”

Prosecutors oppose retrial

In a March decision, Circuit Court Judge Diane Leasure permitted the retrial, but last week the Howard County State’s Attorney’s Office appealed her decision.

“We don’t have any evidence anymore; its been destroyed. This case is over; it’s been over for 17 years.” said state prosecutor Todd Taylor.

Taylor said the state destroyed the evidence after Kogan completed her probation. He said the lack of evidence puts an unfair burden on the state.

“I have no evidence to put on, so it would be an automatic not guilty,” he said.

Jezic disagreed. He said witness testimony would allow the state to present the necessary evidence.

“Most, if not all, of the key investigators of the case are alive and live in Maryland,” Jezic said.

He said he is confident Leasure’s decision to allow a retrial will hold up under the scrutiny of an appeals court.

According to reports at the time, Kogan told police that she awoke in the early morning hours of Oct. 11, 1994 to the sound of her 4-year-old daughter screaming. She told authorities that she went downstairs and discovered Gordon hitting the child because she had thrown away a piece of pie. She said Gordon then proceeded to hit her in the face, stomach and chest.

At that point, Kogan said she picked up the knife and stabbed Gordon.

‘Vicious career criminal’

During her sentencing hearing, medical experts testified that Kogan suffered from spousal abuse syndrome and that Gordon had mentally and physically abused her.

Other witnesses testified that Gordon was a “vicious career criminal” and “a violent and abusive individual, as well as a prominent figure in the Russian underworld,” according to court documents.

The defense argued that Gordon was suspected in two murders, including one in Italy that was “believed to be over a ‘clash of interests linked to the black market,’ ” court documents state.

One neighbor, who testified at the hearing, told the Howard County Times that she had witnessed Gordon striking Kogan.

“I saw it. He hit and kicked her in the stomach,” the neighbor said at the time.

At the sentencing hearing, Circuit Court Judge Dennis M. Sweeney sentenced Kogan to about six months in prison — the time she had already served while awaiting court hearings. According to court documents, he said he was sufficiently convinced that Gordon was violent toward Kogan.

“I think that it is fairly clear, and I don’t think that the state argues to the contrary, that this was a relationship in which violence was a specter, if not a frequent visitor, both against Ms. Kogan and … the child in this case,” Sweeney said.

Jezic agreed, arguing that his client was a constant victim of her boyfriend’s abusive temper, and she acted in self-defense when she stabbed him.

“She has been innocent from the beginning,” he said. “She was the victim.”


Prince George’s County Man, 19, freed after 7 months in jail; robbery testimony at odds.

Man, 19, freed after 7 months in jail; robbery testimony at odds

By Ruben Castaneda

Washington Post Staff Writer
Saturday, January 9, 2010

For nearly four hours in June, Eric W. Johnson insisted to Prince George’s County police detectives that the two armed robbery victims who had identified him as a culprit were wrong, that he was innocent.

For seven months, Johnson, 19, remained in the county jail in Upper Marlboro, awaiting a jury’s decision on charges of armed robbery, first-degree assault, using a handgun in a crime of violence, 17 offenses in all, carrying the possibility of decades of prison time.

The jury never weighed in. On Thursday, before what would have been the second day of Johnson’s trial, Assistant State’s Attorney Ada Clark-Edwards dropped all charges against Johnson.

About seven hours later, he was released from the jail and celebrated by devouring a Big Mac meal at a McDonald’s restaurant.

“I think the criminal justice system works in wrong ways,” Johnson said in an interview less than two hours after he was freed. “I’m completely innocent.”

Clark-Edwards referred questions to Ramon Korionoff, a spokesman for State’s Attorney Glenn F. Ivey. Korionoff said the state dropped the charges because its two key witnesses were contradictory in their testimony and prosecutors no longer had confidence in their case.

For example, one of the victims, Lillian Hall, testified that the attacker she thought was Johnson had dark skin. Johnson is light-complexioned, defense attorneys Andrew Jezic and David Moyse said. The other victim, Timothy Flemmings, told police that the attacker he thought was Johnson hit him in the head with a gun; on the witness stand, Flemmings did not remember that, the attorneys said.

It is highly unusual for prosecutors to drop charges against a criminal defendant in the middle of a trial. In July 2006, Prince George’s prosecutors dropped double-murder charges against Edgar “L.A.” Reyes when cellphone records provided by a homicide detective during the trial cast doubt on the veracity of the state’s lone witness.

At the outset of the Johnson trial, Hall and Flemmings took the stand and testified that Johnson was one of several men who robbed them at gunpoint about 10:30 p.m. June 7 in the 5600 block of Auth Road in Suitland.

According to police charging documents, one victim, Flemmings, surrendered a cellphone and an iPod. Hall gave the robbers her purse, her wallet and $22 in cash. A third victim, a woman, gave up her purse and wallet.

Johnson’s hairstyle — he wears dreadlocks — is a reason he became a suspect, Jezic and Moyse said. The victims of that robbery said one of the attackers had dreadlocks and a cap.

About 5 1/2 hours after the Auth Road robbery, about 4 a.m. June 8, police were called to the scene of a robbery about five miles away, Jezic said. Johnson, who had been out at a nightclub, was spotted walking with two other men about six blocks from that robbery, Jezic said. The victim of the later robbery was brought to the street where Johnson and his friends were detained and said Johnson was not his attacker, Jezic said.

Nonetheless, detectives put Johnson’s picture in a photo array, and Hall and Flemings identified him as one of the men who had robbed them. The third victim said she could not identify anyone from the photo array.


Jezic argues cutting-edge MRI brain science in Montgomery County murder trial.

By Michael Laris,

Gary Smith says he didn’t kill his roommate. Montgomery County prosecutors say otherwise.

Can brain scans show whether he’s lying?

Smith is about to go on trial in the 2006 shooting death of fellow Army Ranger Michael McQueen. He has long said that McQueen committed suicide, but now he says he has cutting-edge science to back that up.

While technicians watched his brain during an MRI, Smith answered a series of questions, including: “Did you kill Michael McQueen?”

It may sound like science fiction. But some of the nation’s leading neuroscientists, who are using the same technology to study Alzheimer’s disease and memory, say it also can show — at least in the low-stakes environment of a laboratory — when someone is being deceptive.

Many experts doubt whether the technology is ready for the real world, and judges have kept it out of the courtroom.

Over three days, Montgomery County Circuit Court Judge Eric M. Johnson allowed pretrial testimony about what he called the “absolutely fascinating” issues involved, from the minutiae of brain analysis to the nature of truth and lies. But he decided jurors can’t see Smith’s MRI testing.

“There have been some discoveries that deception may be able to be detected,” Johnson said, but he added that there’s no consensus that the results can be trusted. “These are brilliant people, and they don’t agree.”

Still, researchers and legal experts say they can envision a time when such brain scans are used as lie detectors. Standard polygraphs are generally not admitted in trials because some consider them deeply flawed. During his police interrogation, Smith said he would submit himself to a polygraph, but Johnson said such results would not be allowed as evidence.

Smith’s attorney, Andrew V. Jezic, argued in court that the MRI test should be allowed, and neuroscientists sparred over the credibility and usefulness in a jury trial.

Prosecutors hate the idea, saying that replacing living, breathing suspects with a stack of colorful brain images would upend the legal system. “The jury’s the decider of credibility,” said John Maloney, Montgomery deputy state’s attorney, who argued that Smith’s brain scans are worthless.

But Smith, who is facing his second murder trial in the case after an appeals court threw out an earlier conviction, says it’s an important tool to back up his account. “After fighting for everybody else’s freedom . . . to be put in prison for a crime I did not commit was extremely frustrating,” Smith said. “It may not be perfect, but it’s definitely something reliable and should be considered.”

Smith and McQueen, who had served together in Afghanistan and shared a Gaithersburg apartment, hung out the night of Sept. 25, 2006, drinking beer and smoking marijuana, court papers say. They went to a VFW and played pool. Just before 1 a.m., Smith called 911. “Oh my God, help me,” he sobbed, telling the dispatcher that he had found McQueen dead. “I dropped him off at the house, and I came back, and he had a big hole in his head.”

When officers arrived, they found Smith, with blood on his hand, face and clothes, vomiting outside the apartment, court papers say. McQueen’s body was in a metal chair in front of a flickering television. They didn’t find a gun.

In evidence that is key to the prosecution’s case, Smith would later give detectives three accounts of what happened, court papers say.

The first time, Smith said he’d been out and returned to find McQueen dead with no gun in the house. Pointing to possible suspects, he said McQueen had argued with some Hispanic men in the past. In version two, Smith returned to find McQueen dead with a gun in his hand. In version three, Smith was in the apartment and McQueen shot himself.

Smith said McQueen used Smith’s gun, and he panicked. He removed the bullets and tossed them and the gun in a nearby lake.

Outside of crimes caught on video or solved with DNA, few pieces of evidence offer clear proof of guilt. Eyewitnesses can make mistakes, and problems have been found in hair and fiber analysis and arson investigations. Maryland judges tell jurors to use their common sense and life experiences to decide whether witnesses are being truthful.

Frank Haist, assistant professor of psychiatry at the University of California at San Diego, analyzed Smith’s brain scans. He was hired as a consultant in Smith’s case for No Lie MRI, a firm commercializing the technology. In his own research, Haist has used brain MRIs to study how people of different ages and races and those with autism process faces.

If Smith chooses to testify at trial, Haist said, “he would be asked and the jury would like to know: ‘Did he shoot Michael McQueen?’ Obviously, his answer would be no.” Jurors would see whether Smith was sweating or not, Haist said. They would see whether he appeared nervous. And they would make judgments.


Murder charges dropped in Prince George’s County nightclub slaying.

Murder charges dropped in Prince George’s County nightclub slaying

Prosecutors have now dropped all the murder charges stemming from a fatal shooting outside an Edmonston night club last March, saying that after they and police detectives completed their investigation, they simply could not prove who did what.

The upshot is this: no one is charged — or likely will ever be charged — with any type of homicide in the March 2011 shooting of 30-year-old Phillip J. Watson, who was gunned down in the parking lot of the Surf Club on Kenilworth Avenue after a fight inside. The man who police had initially accused of being the shooter — 25-year-old Malik Huff — did plead guilty to a first-degree assault charge, but that stemmed from the fight inside the club before the shooting, according to prosecutors and his defense attorney. He was sentenced to five years in prison Friday per his plea agreement, according to prosecutors and his defense attorney.

“The bottom line is we couldn’t prove who was responsible,” said John Erzen, a spokesman for Prince George’s County State’s Attorney Angela Alsobrooks, “Basically, the assault charge is all that we were able to prove from the fight that happened inside the club.”

Erzen said prosecutors considered the case “done” and were not likely to charge anyone else with murder.

From the start, the court proceedings against Huff and his co-defendant, 25-year-old Frederick L. Scott, have been troubled. In November, Scott was mistakenly released on bond after courthouse clerks inadvertently put another man’s paperwork in his file. He was re-arrested later that month after he showed up — voluntarily — at a bond hearing.

Police and prosecutors had accused Scott of driving a car in the nightclub parking lot while Huff shot Watson, according to charging documents and Huff’s defense attorney. But on the third day of Huff’s jury trial last month, they dropped the murder charge against Scott and negotiated a deal with Huff — allowing him to plead guilty to first-degree assault in connection with the fight inside the club, said Andrew Jezic, Huff’s defense attorney.

Jezic said Huff, who had been facing a possible life sentence before the plea, agreed to spend five years in prison and was formally sentenced Friday. He said Huff also avoided prosecution on obstruction charges.

Jezic said Huff had “consistently” and “vehemently” maintained his innocence, and he was satisfied with the outcome.

“Mr. Huff is gratified that he has been, in effect, exonerated of any murder or gun charges,” Jezic said.

Scott’s defense attorney could not immediately be reached for comment Friday night.


Rockville man savoring freedom after nine months in jail despite videotaped false confession.

DC criminal lawyer

Man found not guilty following what lawyers say was false confession.

by Danielle E. Gaines, Staff Writer.

Christopher Anderson/The Gazette Marvin Cuque (right), who was released from jail and after serving nine months for a crime he was acquitted of by a jury, and his attorney, Andrew Jezic, talk about being able to spend the holidays at home with his family.

Christopher Anderson/The Gazette Marvin Cuque (right), who was released from jail and after serving nine months for a crime he was acquitted of by a jury, and his attorney, Andrew Jezic, talk about being able to spend the holidays at home with his family

Helen Vasquez told a white lie as her 4-year-old son peered through the plate glass at the Montgomery County Detention Center in March. On the other side of the partition was her husband, Marvin Cuque.

“Daddy’s dirty from fixing all the buses, so he has to stay back there,” she told their son. Cuque, a safety auditor at Washington Metropolitan Area Transit Authority, went along with the ruse.

Cuque’s wife visited her husband under the cover of that same lie for 40 minutes at a time, once per week, for the next nine months.

Cuque spent exactly 271 days behind bars last year — an ordeal he describes as “sort of like hell.”

He was released Nov. 30 — just in time for the holidays — after a jury concluded he was not guilty of the charges against him.

“It was a lot of pain. So much pain,” Cuque said later. “I had never been arrested before.”

The 35-year-old Guatemala native was arrested by Montgomery County Police on Sept. 17, 2010, and charged with second-degree sex offense, child molestation and abuse of a child by a custodian — crimes that could carry a prison sentence of more than 35 years. He was released from jail the same day, but later detained without bail, starting March 4, after prosecutors said his connection with Guatemala posed a flight risk.

According to police and prosecutors, the crimes Cuque was charged with occurred in 1999 or 2000 when he and a former girlfriend boarded with a woman and her three children at the White Oak Towers complex on Old Columbia Pike in White Oak.

During an interrogation with two police detectives in Rockville on Sept. 14, Cuque was flustered. He didn’t learn to speak English until he moved to Silver Spring in 1984 at the age of 6. In a psychological evaluation after his arrest, he said he still has difficulty “finding the right words in English.”

Toward the beginning of the one-hour-and-15-minute interrogation, when one detective asked Cuque if she was “right in thinking that, you know, you guys didn’t have full blown sex?” Cuque responded: “Not even touching.”

He went on to deny the allegations nine more times before answering “Yes,” when a detective asked if he felt bad about what had happened. When the detective asked him whether the girl had put her mouth on his penis, Cuque said “Probably, yeah, I guess so.”

Cuque explains the admission by a lifelong nervousness around police and a feeling that they were out to get him during the interrogation. During the psychological evaluation after his arrest, Cuque said he thought, “Even though I didn’t do it, if I admit to touching, it wouldn’t be a big deal and they will stop.”

Days later, he was arrested and charged. After meeting with an attorney and again asserting that he was innocent, Cuque entered an Alford plea, a plea in which a defendant refuses to accept guilt, but acknowledges the prosecution likely has enough evidence for a conviction.

Unlikely assistance

After a Montgomery County Circuit Court judge accepted the Alford plea in April and days before Cuque was scheduled to be sentenced for second-degree sex offense, the ex-girlfriend who lived with him stepped in. Her mother hired Wheaton-based attorneys Andrew V. Jezic and David H. Moyse to defend Cuque.

“It wasn’t a decision we jumped on,” Moyse explained later. “We had the video [of the interrogation], met with Marvin several times, met with experts. The bottom line was, we believed him when we looked at him eye to eye. False confessions do happen.”

The attorneys quickly came to think that several factors led to a false confession: Cuque’s stunted education, non-confrontational demeanor and tendency to please others — coupled with interrogation techniques that minimized the crime he was accused of and maximized the case against him with the threat that officers would “think the worst” if he didn’t confess.

Cuque said after police told him the girl had passed a lie detector test, he felt as though police would not believe he was innocent. He believed lie detector tests were 99 percent accurate because of their use on daytime talk shows, he said.

“In my opinion, given the totality of the circumstances, I feel that Mr. Cuque was at risk to make a false confession,” Dr. Michael J O’Connell, a forensic psychologist from Ellicott City, wrote in an evaluation of Cuque.

At trial, Jezic was barred from calling O’Connell as an expert witness on false confessions because Judge Robert A. Greenberg thought O’Connell would tell the jury information they could conclude through other testimony.

In the final hours of a five-day trial that stretched through the Thanksgiving holiday, Cuque’s attorneys presented the jury with a parade of witnesses who testified to his character. Among them was his boss at WMATA.

“To have 10, 12 people available as character witnesses, that is difficult,” Jezic said. “Because some character witnesses, when they know the charges, will back off.”

Helen Vasquez took the stand in defense of her husband as well.

“I was always supportive. I never doubted him,” Helen said. “I never doubted his honesty and his innocence. I knew I had to be brave and tell [the jury] who my husband was and that I knew the man I married.”

After six hours of deliberation, during which the jurors watched the interrogation video twice, they emerged with a verdict: Not guilty. On all counts.

“It was like a thunderbolt,” Jezic said.

After incarceration

Maryland jurors are anonymous in court and identified only by number. Although jurors could not be reached after the verdict, Jezic said he spoke with several of them.

“The jurors hung around and talked with us and it came down to not having much faith in the confession,” Jezic said.

The prosecutor, Deborah W. Feinstein, did not return a call for comment about the verdict. Montgomery County Police spokeswoman Sgt. Jennifer McNeal referred all questions about the crime to the State’s Attorney’s Office because she said it was an open case.

Cuque finds it hard to describe the emotions he felt as the verdict was read. The hours after were a blur as well.

“The first thing I saw was my wife and my son running toward me. It was very beautiful,” he said.

They walked together to California Tortilla, where Cuque ordered a soda and savored the moment.

“I couldn’t believe I was walking out of the court building and into freedom. The fresh air was the main thing,” Cuque said.

Cuque’s trials won’t soon be finished. His court file remains open to inspection, because it could hurt his bid for U.S. citizenship to have the records expunged. While Cuque has a green card, the ambiguous paper trail left by an expungement could create complications when he applies for citizenship, Jezic said.

Despite everything, Cuque said he has not lost faith in the legal system.

“In the end, the jurors did what our system allows,” he said.

While he was imprisoned, the life Cuque had worked so hard for came crashing down around his wife. Two of the family’s cars were repossessed, mortgage payments went unpaid. Helen went back to work at a former job with Chipotle, but couldn’t keep up with the financial demands.

For Christmas this year, the family had to wait until payday Dec. 23 to buy gifts and hurriedly wrap them on Christmas Eve, hours before the family’s celebration. Each year, at midnight on Christmas morning, before opening their gifts, the family gathers to pray and call extended family in Guatemala.

“Every time I talk to my mother, she cries,” Cuque said.

For Jezic’s part, he was pleased to be able to reunite a family for the holidays.

“Daddy was the biggest gift,” Jezic said.


Hung jury, despite controversial prohibition on researching jurors in Montgomery County.

Montgomery judge denies Internet searches for jury selection

Montgomery courts take detour around Google

Lawyers long have used focus groups or jury consultants to try to find the perfect jury for their clients. Investigating jurors fell out of favor because courts were concerned with their privacy, experts say.

But as Wi-Fi has crept into courtrooms around the country, some lawyers are taking to the Internet, searching social networks, job sites or court records to weed out problematic jurors. Advocates of the searches say it ensures fairer jury panels. In at least one state, lawyers are encouraged to perform a search of court records to make sure potential jurors have not been part of a lawsuit.

But opponents worry it might be an invasion of privacy that will make citizens more reluctant to perform their jury service.

“I go wherever Google takes me,” Jezic told Montgomery County Circuit Court Judge Richard E. Jordan last month before jury selection for the trial, which ended in a hung jury. The case will be retried this year.

Jezic, or one of his assistants, would research potential jurors during “voir dire,” the portion of a trial when lawyers and judges question potential jurors about their backgrounds or biases before deciding whether they will sit on a jury.

“There are a number of thoughts I’ve considered since this issue came up a month ago, and I knew it would come up repeatedly until we get some guidance from above,” Jordan told Jezic, referring to rulings from higher courts. Jordan denied Jezic’s request.

If allowed to do Internet research in that case, “we might have exercised more strikes,” Jezic said. “We might have known more about people we did strike, and not have struck them.”

When the issue came up in a previous trial Jordan was overseeing, it struck him as being “totally inappropriate,” he said during last month’s proceedings.

“I’ve even raised it with other judges on the bench. … There seems to be, at least from a gut level, a mixed set of views,” he said.

Montgomery County Circuit Court judges, including Jordan, declined to speak on the record about the issue.

Jezic’s and Jordan’s dilemma is one that judges and attorneys around the country are wrestling with, where technology has outstripped case law, experts say.

Some think that Internet searches of jurors’ pasts could make them less likely to take seriously rules about not relying on outside information during trials.

Jurors usually are ordered to rely only on evidence offered at trial. They should not, outside of the trial, research the case or people involved online, or try to reach out to lawyers or witnesses.

Some people consider online research a “poor man’s jury consultant,” because anyone can use it to learn information about jurors, said Thaddeus Hoffmeister, a professor of law at the University of Dayton.

No national guidelines exist about using the Internet to research jurors, said Paula Hannaford-Agor, the director of the Center for Jury Study for the National Center for State Courts, based in Williamsburg, Va.

“It varies so much, state to state, and by judge to judge,” she said. Some states provide juror names in advance and let attorneys ask jurors questions directly, whereas Maryland has a stricter voir dire process. Lawyers receive the names of potential jurors the day a trial starts.

In Missouri, she said, a court rule requires attorneys to do an Internet search on whether jurors have been party to litigation. “If they don’t, they are prohibited from raising [the issue] on appeal,” she said.

“Missouri is taking a very much ‘the tools are available, and if you don’t use it, it’s your own damn fault’ approach,” she said.

“I do think that jurors tend to be uneasy about, concerned, they’d be Googled,” Jordan said during the proceedings in Montgomery County Circuit Court last month. The websites have information, some of it wrong, that people never consented to share, such as credit histories or employment histories, he said.

“There’s a real potential for a chilling effect on jury service, by jurors, to know ‘I’m going to go out to the courthouse. … I’m going to be Googled. They’re going to find all kinds of stuff on me,’ and it feels kind of uneasy, at least,” he said.

Jezic said he began searching jurors online in the past two years or so, since Wi-Fi came to the courthouse.

“Anything else would be less than thorough,” he said.

“I never asked for permission before,” he said. “For me, there’s Wi-Fi in the courtroom. The attorney’s allowed to use iPhones, laptops. … To me, it’s self-evidently permissible.”

Attorneys receive basic information about potential jurors, according to the Montgomery County Jury Commissioner’s office. That information includes their full name, age, gender, profession, city of residence, spouse’s occupation and level of education.

Attorneys submit a more detailed list of questions to the judge overseeing the case, who asks those questions to potential jurors, Jezic said. Lawyers also may ask follow-up questions, he said.

“Through those answers, we learn a lot more about those people,” he said.

Some would-be jurors, or “mystery jurors,” as Jezic called them, don’t answer any questions, and searching for information about them online can help lawyers learn more.


Mr. Jezic continues to guide former Army Ranger toward Freedom in Murder case.

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On Friday, October 25, a three-judge panel from Montgomery County Circuit Court reduced the sentence of former Army Ranger Gary Smith from 28 years to 15 years.   With Smith’s 7 years of time served, he will be eligible for parole in 6 months.

Mr. Jezic and Mr. Moyse have been Mr. Smith’s attorneys from the day after the death of Mr. Smith’s close friend and former Army Ranger buddy, Mike McQueen, in September of 2006.

In November, 2006 Mr. Smith was charged with first degree murder despite passing two polygraph tests, indicating his innocence.  Mr. Jezic secured Mr. Smith’s release on bond the next day – an extraordinarily rare occurrence for a first degree murder charge.

The first trial, lasting 11 trial days, resulted in acquittal of Mr. Smith on first degree and second degree murder charges, but guilty on a lesser form of second degree murder, called Deparaved Heart Murder.  He received a 35 year sentence.

Recommending that the Mr Smith family hire the premier appellate attorney in the State, Gary Bair, Mr. Jezic worked closely with Mr. Bair, who eventually secured a unanimous reversal of the conviction in Maryland’s highest court on November 29, 2011.

Mr. Smith was soon out on bond again, and hired Mr. Jezic again after a brief representation by two excellent public defenders.   When a critical defense postponement was denied during a very busy trial schedule for Mr. Jezic in the summer of 2012, Mr. Jezic recommended that the Smith family hire, as co-counsel, Barry Helfand and his law partner, David Martella.

In a twelve-day trial, Jezic, Helfand and Martella convinced a divided jury in September 2012 to acquit Mr. Smith of Depraved Heart Murder, but the jury still found Mr. Smith guilty of involuntary manslaughter and a gun charge.  The same trial judge from 2008 gave Mr. Smith 28 years out of a maximum 30 years, despite sentencing guidelines calling for a sentence of 5 to 10 years.

Oral argument is set on December 11, 2013 in the Court of Special Appeals.  Mr. Jezic has worked closely with Mr. Smith’s appellate attorney from the Public Defender’s office, Brad Peabody, a veteran appellate lawyer. 

Mr. Jezic is very hopeful for a new trial – a third trial in 2014.


Ruling of Prince George’s County Circuit Court judge affirmed

Sinclair v. State.

The Court of Special Appeals of Maryland recently held that the limited, immediate search of an arrestee’s cell phone, pursuant to a lawful arrest, did not violate his Fourth Amendment right against unreasonable searches and seizures.  The Appellant was convicted in the Circuit Court for Prince George’s County of various charges stemming from a carjacking in Temple Hills, Maryland.  The record reveals that minutes after the Appellant’s lawful arrest, the on-duty officer conducted a limited search of the cell phone found on his person.[1]  During the Appellant’s Circuit Court trial, defense counsel moved, in limine, to suppress the evidence seized from his phone.[2] The Circuit Court for Prince George’s County denied this motion, concluding that the search was valid incident to a lawful arrest.

On appeal, the Maryland Court struck down the Appellant’s claims, citing to a decision from the United States Court of Appeals for the Fourth Circuit.[3]  The Court of Special Appeals of Maryland balanced the Fourth Amendment rights of suspects against the need of law enforcement to preserve evidence when faced with nuances presented by modern technology.[4]  Here, the Court concluded that, because the search was close in time to the arrest and the officer “merely opened the appellant’s cell phone” to find the evidence on the screensaver, the search was valid under the Fourth Amendment.    

The Maryland Court also held that the introduction of other crimes evidence is proper, when the probative value outweighs any unfair prejudice that may arise.  Here, the Court reasoned that because both parties stipulated (and the jury knew) that Appellant was previously found guilty of a disqualifying crime, the introduction of other crimes evidence[5] related to this stipulation was not overly prejudicial.  Furthermore, use of this evidence was properly admissible for purposes of impeachment because it was related to a contested issue in the case.


[1] The evidence seized from the phone consisted of pictures found on Appellant’s screensaver which were later confirmed to be images of the stolen car.

[2] Defense counsel asserted that his Fourth Amendment rights protecting him against an unreasonable search and seizure when the arresting officer did not first obtain a warrant to search his phone.

[3] See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding “The need for the preservation of evidence justifies the retrieval of call records and text messages from a cell phone or pager without a warrant during a search incident to arrest.”).

[4] The Court made note that, because evidence, such as text messages, pictures, and the like, can be erased so easily and quickly, the need to preserve such evidence justifies the search of cell phones pursuant to a lawful arrest.

[5] At issue was a recorded phone call Appellant made to his probation officer.  At the trial level, defense counsel argued that the phone call’s prejudicial effect outweighed its probative value.


Rockville man savoring freedom after nine months in jail despite videotaped false confession

Man found not guilty following what lawyers say was false confession

by Danielle E. Gaines, Staff Writer

Christopher Anderson/The Gazette Marvin Cuque (right), who was released from jail and after serving nine months for a crime he was acquitted of by a jury, and his attorney, Andrew Jezic, talk about being able to spend the holidays at home with his family.

Christopher Anderson/The Gazette Marvin Cuque (right), who was released from jail and after serving nine months for a crime he was acquitted of by a jury, and his attorney, Andrew Jezic, talk about being able to spend the holidays at home with his family

Helen Vasquez told a white lie as her 4-year-old son peered through the plate glass at the Montgomery County Detention Center in March. On the other side of the partition was her husband, Marvin Cuque.

“Daddy’s dirty from fixing all the buses, so he has to stay back there,” she told their son. Cuque, a safety auditor at Washington Metropolitan Area Transit Authority, went along with the ruse.

Cuque’s wife visited her husband under the cover of that same lie for 40 minutes at a time, once per week, for the next nine months.

Cuque spent exactly 271 days behind bars last year — an ordeal he describes as “sort of like hell.”

He was released Nov. 30 — just in time for the holidays — after a jury concluded he was not guilty of the charges against him.

“It was a lot of pain. So much pain,” Cuque said later. “I had never been arrested before.”

The 35-year-old Guatemala native was arrested by Montgomery County Police on Sept. 17, 2010, and charged with second-degree sex offense, child molestation and abuse of a child by a custodian — crimes that could carry a prison sentence of more than 35 years. He was released from jail the same day, but later detained without bail, starting March 4, after prosecutors said his connection with Guatemala posed a flight risk.

According to police and prosecutors, the crimes Cuque was charged with occurred in 1999 or 2000 when he and a former girlfriend boarded with a woman and her three children at the White Oak Towers complex on Old Columbia Pike in White Oak.

During an interrogation with two police detectives in Rockville on Sept. 14, Cuque was flustered. He didn’t learn to speak English until he moved to Silver Spring in 1984 at the age of 6. In a psychological evaluation after his arrest, he said he still has difficulty “finding the right words in English.”

Toward the beginning of the one-hour-and-15-minute interrogation, when one detective asked Cuque if she was “right in thinking that, you know, you guys didn’t have full blown sex?” Cuque responded: “Not even touching.”

He went on to deny the allegations nine more times before answering “Yes,” when a detective asked if he felt bad about what had happened. When the detective asked him whether the girl had put her mouth on his penis, Cuque said “Probably, yeah, I guess so.”

Cuque explains the admission by a lifelong nervousness around police and a feeling that they were out to get him during the interrogation. During the psychological evaluation after his arrest, Cuque said he thought, “Even though I didn’t do it, if I admit to touching, it wouldn’t be a big deal and they will stop.”

Days later, he was arrested and charged. After meeting with an attorney and again asserting that he was innocent, Cuque entered an Alford plea, a plea in which a defendant refuses to accept guilt, but acknowledges the prosecution likely has enough evidence for a conviction.

Unlikely assistance

After a Montgomery County Circuit Court judge accepted the Alford plea in April and days before Cuque was scheduled to be sentenced for second-degree sex offense, the ex-girlfriend who lived with him stepped in. Her mother hired Wheaton-based attorneys Andrew V. Jezic and David H. Moyse to defend Cuque.

“It wasn’t a decision we jumped on,” Moyse explained later. “We had the video [of the interrogation], met with Marvin several times, met with experts. The bottom line was, we believed him when we looked at him eye to eye. False confessions do happen.”

The attorneys quickly came to think that several factors led to a false confession: Cuque’s stunted education, non-confrontational demeanor and tendency to please others — coupled with interrogation techniques that minimized the crime he was accused of and maximized the case against him with the threat that officers would “think the worst” if he didn’t confess.

Cuque said after police told him the girl had passed a lie detector test, he felt as though police would not believe he was innocent. He believed lie detector tests were 99 percent accurate because of their use on daytime talk shows, he said.

“In my opinion, given the totality of the circumstances, I feel that Mr. Cuque was at risk to make a false confession,” Dr. Michael J O’Connell, a forensic psychologist from Ellicott City, wrote in an evaluation of Cuque.

At trial, Jezic was barred from calling O’Connell as an expert witness on false confessions because Judge Robert A. Greenberg thought O’Connell would tell the jury information they could conclude through other testimony.

In the final hours of a five-day trial that stretched through the Thanksgiving holiday, Cuque’s attorneys presented the jury with a parade of witnesses who testified to his character. Among them was his boss at WMATA.

“To have 10, 12 people available as character witnesses, that is difficult,” Jezic said. “Because some character witnesses, when they know the charges, will back off.”

Helen Vasquez took the stand in defense of her husband as well.

“I was always supportive. I never doubted him,” Helen said. “I never doubted his honesty and his innocence. I knew I had to be brave and tell [the jury] who my husband was and that I knew the man I married.”

After six hours of deliberation, during which the jurors watched the interrogation video twice, they emerged with a verdict: Not guilty. On all counts.

“It was like a thunderbolt,” Jezic said.

After incarceration

Maryland jurors are anonymous in court and identified only by number. Although jurors could not be reached after the verdict, Jezic said he spoke with several of them.

“The jurors hung around and talked with us and it came down to not having much faith in the confession,” Jezic said.

The prosecutor, Deborah W. Feinstein, did not return a call for comment about the verdict. Montgomery County Police spokeswoman Sgt. Jennifer McNeal referred all questions about the crime to the State’s Attorney’s Office because she said it was an open case.

Cuque finds it hard to describe the emotions he felt as the verdict was read. The hours after were a blur as well.

“The first thing I saw was my wife and my son running toward me. It was very beautiful,” he said.

They walked together to California Tortilla, where Cuque ordered a soda and savored the moment.

“I couldn’t believe I was walking out of the court building and into freedom. The fresh air was the main thing,” Cuque said.

Cuque’s trials won’t soon be finished. His court file remains open to inspection, because it could hurt his bid for U.S. citizenship to have the records expunged. While Cuque has a green card, the ambiguous paper trail left by an expungement could create complications when he applies for citizenship, Jezic said.

Despite everything, Cuque said he has not lost faith in the legal system.

“In the end, the jurors did what our system allows,” he said.

While he was imprisoned, the life Cuque had worked so hard for came crashing down around his wife. Two of the family’s cars were repossessed, mortgage payments went unpaid. Helen went back to work at a former job with Chipotle, but couldn’t keep up with the financial demands.

For Christmas this year, the family had to wait until payday Dec. 23 to buy gifts and hurriedly wrap them on Christmas Eve, hours before the family’s celebration. Each year, at midnight on Christmas morning, before opening their gifts, the family gathers to pray and call extended family in Guatemala.

“Every time I talk to my mother, she cries,” Cuque said.

For Jezic’s part, he was pleased to be able to reunite a family for the holidays.

“Daddy was the biggest gift,” Jezic said.

dgaines@gazette.net


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