Maryland criminal lawyer Andrew Jezic was able to persuade a Montgomery County Circuit Court judge to release his client on a bond of $30,000, despite another Circuit Court judge having revoked her bond entirely after her arrest on charges of auto manslaughter. The client’s blood alcohol content was allegedly over three times the legal limit.
Maryland criminal lawyer David Moyse convinced a Montgomery County district court judge in Silver Spring to completely dismiss a DUI, where Moyse’s client led the police officer on a 10 minute police chase before crashing into a median on the wrong side of traffic. If convicted, the client would have faced certain jail time as he had a prior DUI conviction. Moyse argued that the police officer had overreached his power in initiating the stop, and that the police chase should have never occurred. The judge ordered the trial postponed two weeks to consider the legal arguments before dismissing all of the charges
Barnes stood up and walked to the front of the courtroom, one of a string of friends and family members who’d come to speak about Billie Jay “BJ” Genies, a longtime Montgomery resident who was 34 when Valenzuela mowed him down in December.
Barnes told the judge that he wanted to tell a story from a year ago. He was driving, and Genies was in the passenger seat. They stopped at a red light. A homeless woman approached from the left. Genies asked Barnes to lower the window, he leaned over and he handed the woman a few dollars.
“Here you go,” he told her. “God bless you. Now I’m as broke as you.”
Many in the courtroom laughed, because to them, it cut to the heart of Genies. He didn’t have much money — he’d struggled over the years with arrests and trying to hold down steady jobs. But he was quick to joke, to try to make those around him laugh. “If anybody knows BJ,” Barnes said in court, “that’s just who he was.”
Circuit Court Judge David A. Boynton, after acknowledging how Genies had affected so many people in different ways, sentenced Valenzuela to 20 years in the case, the maximum he could under a deal in which Valenzuela pleaded guilty to one count of second-degree murder and one count of first-degree assault.
Boynton also sentenced Valenzuela, 21, to an additional 35 years, suspended, which he could serve if he gets in trouble again after his release, when he’s on probation.
The judge said he agreed with the term used by prosecutors from the Montgomery state’s attorneys office to describe Valenzuela’s crime. “Depravity, as the state points out, is the succinct way of putting it,” he said.
Of Valenzuela’s use of a car as a lethal weapon, Boynton said: “He might as well have fired a cannon at him or thrown a hand grenade.”
Details of the case and about Valenzuela and Genies emerged during the hearing — as did something about their friends and relatives, about 50 sitting on both sides of the courtroom and two dozen standing along the walls or in the alcove.
During a period for public statements, a third cousin of Genies’s — who had just seen members of Valenzuela’s family stand up and invoke their faith — walked to the front of the courtroom and led everyone in prayer. More than 60 heads bowed. “If everybody could just keep their faith in the Lord and walk the right path,” Christie Long said, “I know that things will turn out for the better for each side in every situation. Amen.”
“Amen,” repeated the crowd.
Genies and Valenzuela didn’t know each other before the night of the killing. For some, part of the tragedy of Genies’s death stemmed from the random events that led to it.
The night of Dec. 4, Valenzuela and two friends were hanging out in Damascus, where he lived, drinking from a 12-pack of beer. Around midnight, they decided to go to a nearby McDonald’s. It was closed, so they crossed the street to a 7-Eleven to get food there. On their way out, they met BJ Genies and his brother, James, and the five began talking.
At some point, Valenzuela and his friends discussed giving the brothers a ride to Gaithersburg, where they would get marijuana, prosecutors wrote in court papers.
All five piled into the Civic and began listening to a CD belonging to BJ Genies. The five took turns rapping to the music.
In Gaithersburg, Valenzuela stopped and got out to relieve himself. Others did, too. But instead of getting back into the car, the Genies brothers began to walk away. Valenzuela and his friends got into the car. Valenzuela grew angry: It was becoming clear to him that he wouldn’t be getting any marijuana, prosecutors wrote in court papers, and he hadn’t been paid for the ride. He began “to stalk” the Genies brothers as they walked away, according to the prosecutors, Eric Nee and Bryan Roslund.
Eventually, Valenzuela spotted the two from behind and told his friends that he was going to hit them. He accelerated, swerved to the right and hit the men so hard that both were knocked out of their shoes. BJ Genies suffered lethal head injuries and died at the scene. James Genies was knocked out but survived.
As Nee recounted the crash in court Thursday, many of the Genies brothers’ friends and relatives softly cried.
Valenzuela’s friends and family members said he had been an otherwise hardworking young man. His attorney, Andrew Jezic, told the judge that it was Valenzuela who insisted that he not fight the charges. And Valenzuela himself spoke, struggling over his words as he turned to victims’ relatives and friends. “I’m extremely sorry,” he said.
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.
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.
It also helps lawyers learn other details that might not come out in the judge’s questions, he said.
“If there’s somebody that contributes to a body of a neighborhood watch — that generally indicates a pro-law enforcement bent. … We may not know that unless it says it on his Facebook page,” Jezic said.
“On the other hand, [if] he contributes or is on the board of the National Association of Legalizing Marijuana, we’d want to know that, too,” he said.
Montgomery County State’s Attorney John McCarthy said he knows of the practice but didn’t know of any assistant state’s attorneys using the Internet to research potential jurors.
“It’s only logical more and more people are going to do it — because the technology is there,” he said.
David Lease, another private attorney, said he has heard attorneys talk about using Google to vet jurors, but it would create more work.
“From a practical standpoint, you don’t even have the time to do that if you wanted to do so,” he said.
Six alleged gang members were indicted on murder charges in Montgomery County District Court on Thursday in the stabbing death of a 21-year-old Wheaton man, a county state’s attorney’s spokeswoman said.
The following Montgomery County residents were each charged with first-degree murder, conspiracy to commit murder, first-degree assault, conspiracy to commit first-degree assault, riot and participation in a gang activity resulting in death:
Christian Salmeron, 20, and Jose A. Hernandez, 16, both of the 4300 block of Ferrara Drive in Wheaton; Deshaun Budd-Bey, 18, of the 12800 block of Bluhill Road in Wheaton; Jose Vasquez, 21, of the 4400 block of Sigsbee Road in Aspen Hill; Kevin Miranda, 17, of the 10800 block of Georgia Avenue in Silver Spring; and Anthony Racedo, 18, of the 12700 block of Bushey Drive in Wheaton.
The six, believed to be members of the Chicago-based Latin Kings gang, were indicted in the July 7 murder of 21-year-old Edwin Umana of Wheaton, said spokeswoman Emily White.
A trial date for the six is set for Nov. 23 in Montgomery County Circuit Court, but several defense attorneys representing some of the defendants say they don’t believe the case will be taken that far.
County police say Umana was chased by the males, assaulted and killed after calling out to several women sitting on the porch of a home in the 13100 block of Matey Road in the Greenwood Knolls community of Glenmont.
Rockville-based defense attorney Charles Lipscomb, speaking for his client Racedo, said he thinks the first-degree murder charges against his client will be dropped because of a lack of evidence.
“It’s clear that my client didn’t stab this guy,” Lipscomb said.
Vasquez admitted to police he stabbed Umana in the temple while six others kicked him as he lay on the ground, according to charging documents filed in District Court.
Umana died the next day in the hospital, police said.
Rockville-based defense attorney Jennifer Page, who is representing Budd-Bey, said she also believes murder charges will be dropped against her client and that each defendant will be prosecuted according to his connection to the assault.
“The different young men had very different involvement,” she said.
On Aug. 13, prosecutors dropped related first-degree murder charges against another teen, Hirbin Bladimir Guerrero, 16, of the 11300 block of Schuylkill Road in Rockville.
Original witness accounts placed Guerrero close to Umana’s body, but prosecutors later found evidence proving he didn’t leave the porch during the murder, said his attorney, Wheaton-based Andrew Jezic.
“It’s just really sad that he spent 45 days in jail,” Jezic said.
Alex Foster, a Rockville-based attorney representing Salmeron, said he’s hesitant to comment until he receives more information from the state.
Hernandez’s attorney, Rockville-based Esteban Gergley, could not immediately be reached for comment.
Public records did not list an attorney for Miranda, and a public defender will be assigned to Vasquez.
by Erin Donaghue | Staff Writer
A Rockville resident was found guilty of manslaughter by motor vehicle in April in a 2008 car crash that killed a Montgomery Village woman.
Jeffrey Priscillano Samonte Nunez, 28, and Dexter Ingram, 24, of Washington, D.C., were found not guilty April 30 of racing their cars. Ingram was found not guilty of manslaughter by motor vehicle.
Nunez was driving north on Rockville Pike near White Flint mall Dec. 9, 2008, when his Honda Civic hit the median, went airborne, and landed on top of 18-year-old Ngoc Xuan Thi Lai’s 1995 Toyota Camry. Lai, a Montgomery Village resident and a recent Watkins Mill High School graduate, had been driving south on Rockville Pike. She was pronounced dead at the scene.
Nunez was charged alongside Ingram, who was driving another car north on Rockville Pike at the time of the accident. According to court records, Ingram had switched into the left travel lane in front of Nunez, who lost control of his car.
Who was at fault for the accident remained at issue throughout the trial. Attorneys for Nunez argued that Ingram had cut off Nunez, causing the accident, according to court records.
Andrew Jezic, a lawyer for Ingram, said he argued that Nunez caused the crash. At trial, one expert estimated that Nunez had been travelling as fast as 67 mph on the road, which has a speed limit of 40 mph.
Ken West, an attorney for Nunez, did not return several calls for comment. West filed a motion May 10 with Montgomery County Circuit Court Judge Nelson W. Rupp asking the judge to withdraw the verdict finding Nunez guilty of manslaughter, according to court documents.
In the motion, West argued because Nunez was found not guilty of drag racing, his speed alone was not enough to convict him of manslaughter. West also argued Ingram caused Nunez to lose control of the car.
Both Ingram and Nunez were indicted on charges of speed contest — or drag racing — in July 2009. Both men were found not guilty by a jury on that charge. Ingram also was indicted on charges of manslaughter by motor vehicle and was found not guilty. Ingram was found guilty of reckless driving and failure to remain at the scene of an accident resulting in bodily injury.
They are both scheduled to be sentenced July 20.
Jezic said his client was humbled by the verdict.
“I think the jury did the right thing. They were able to put aside the tragedy of this awful death and decide the case on the evidence.”
Walkersville man found not guilty of assaulting inmate
An employee at a Montgomery County correctional facility was acquitted earlier this month on charges that he committed a sexual offense with a male inmate last year.
Francisco Modesto Redona, 51, of Walkersville, was found not guilty on Jan. 18 of one charge of correctional-inmate sexual offense and one charge of second-degree assault stemming from allegations from April 2008 at the Montgomery County Pre-Release Center. The trial took place over four days before Circuit Court Judge David Boynton in Rockville.
Redona was employed as a nurse at the Montgomery County Pre-Release Center on Nebel Street in North Bethesda when he was accused of performing a sexual act on a 35-year-old male inmate on April 29, 2008. The inmate originally came to Redona to obtain nasal spray and a physician’s referral for a medical condition. The inmate told center staff there had been an incident at least 45 minutes later, and the staff subsequently called police.
According to charging documents, police obtained DNA evidence from the inmate and the inmate’s boxer shorts that matched Redona’s DNA.
Redona’s attorney, Andrew Jezic of Wheaton, said the inmate admitted that he was alone for a short period of time in an examination room with tissues and paper towels that had been used by Redona.
Two employees at the Pre-Release Center, including a counselor who had worked with the inmate in 2005, also testified that the inmate was “not a truthful person,” according to Jezic.
Jezic said Redona was currently in the process of trying to get his job back at the Pre-Release Center, where he is on unpaid administrative leave. He said his client had gone through “eight or nine months of hell.” Redona had worked for the county’s correctional system since 2003 and for the Pre-Release Center since 2006.
“The jury got to hear that this is an exemplary person, an exemplary nurse, an exemplary father and husband, and these are false charges,” Jezic said.
Maryland Community News
Published: Wednesday, September 19, 2012
This story was updated at 4:55 p.m. on Sept. 19, 2012.
In spite of his conviction Sept. 19 of involuntary manslaughter and a handgun offense, former U.S. Army Ranger Gary Smith remained determined to prove his innocence.
“I’ll survive,” Smith said the day before as he waited for the jury’s verdict with family and friends. “Either way, I’ll survive, but it is very hard. Even if I go back to jail, I’ll never give up.”
Smith, 29, was found guilty of involuntary manslaughter and the use of a handgun in a crime of violence in Montgomery County Circuit Court at 1:30 p.m. Sept. 19 — nearly 12 hours after the jury began its deliberation. The trial itself, ordered by the Maryland Court of Appeals after Smith’s first conviction was overturned last year, lasted more than three weeks.
Smith was originally convicted in 2008 of the second-degree depraved heart murder of 22-year-old Michael McQueen, Smith’s roommate and fellow combat veteran who was found dead from a single gunshot wound to the head in the Gaithersburg apartment the two shared on Sept. 26, 2006.
That conviction was overturned last year after the appeals court determined Judge Eric M. Johnson had erred in not allowing Smith’s defense attorneys to present a police officer’s testimony on McQueen’s state of mind before his death as evidence at trial.
Andrew Jezic, one of Smith’s defense attorneys, confirmed that Smith will appeal his manslaughter and handgun convictions.
“I think it’s safe to say we are grateful to the jury for their careful consideration of the evidence and for their acquittal of the depraved heart murder charge, but we are very disappointed that it was not a complete acquittal,” Jezic said. “We will certainly be appealing.”
Leeanne Soltes, Smith’s sister, left the courtroom in tears after watching her brother being led away in handcuffs. Soltes also maintained her brother’s innocence and vowed to appeal, despite the heavy toll she said each trial has taken on her family.
“We’re never going to give up hope but this has ripped holes into the hearts of everyone who knows [Gary],” she said through sobs after hearing the verdict. “He’s going to miss his 30th birthday, which is a week before his sentencing hearing. He’s going to miss my daughter’s second birthday a week after his sentencing. I don’t have my baby brother.”
Glenda McQueen, Michael’s mother, was also dissatisfied with the verdict. She believed the jury did not go far enough in holding Smith responsible for her son’s death.
“I was disappointed that he did not get second-degree murder but I was satisfied that he will receive some time,” she said outside the courtroom. “Gary Smith is guilty of killing my son, and he will serve time in jail for that.”
Montgomery County State’s Attorney John McCarthy, speaking on behalf of Deputy State’s Attorney John Maloney and Assistant State’s Attorney Robert Hill, said his office was pleased with the sentence and will be prepared to reply to any future appeals Smith may file.
“There are always appeals,” McCarthy said. “Justice can sometimes be appealed but we are hopeful that ultimate justice was served here today.”
Both McCarthy and McQueen pointed out that, considering the first jury’s verdict in 2008, this marks the second independent panel of jurors to rule against the defense’s claim that McQueen killed himself.
Smith will receive at least five years in jail and could serve up to 30 years at his sentencing hearing Oct. 15. Smith’s handgun charge carries a mandatory minimum sentence of five years in jail and a maximum possible sentence of 20 years. Involuntary manslaughter carries a maximum penalty of 10 years in jail.
“I hope the judge gives him the maximum penalty,” Glenda McQueen said. “ … I would love to have closure in this, but until we see that appeal I won’t have any.”
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.
