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

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

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.

Montgomery judge denies Internet searches for jury selection

Montgomery courts take detour around Google

Greg Dohler/The Gazette

Attorney Andrew V. Jezic, at his Wheaton office, believes that personal information available on the Internet should be fair game when selecting jurors.

While preparing to defend a man last month accused of child sex abuse, Andy Jezic asked a Montgomery County judge for permission to do something he considers routine: use the Internet to research potential jurors during jury selection.

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.

DC criminal attorney

Link to Article

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.

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

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