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Army Ranger gets a third trial; Gary Smith’s Manslaughter conviction is reversed

Portada Washington Post Army Ranger gets a third trial; Gary Smith’s Manslaughter conviction is reversed

August 31

A Maryland appeals court reversed the conviction of Gary Smith, a former U.S. Army Ranger charged in 2006 with fatally shooting his roommate inside their Montgomery County apartment — setting the stage for a third trial in the case.

In the latest iteration, filed Thursday, the Maryland Court of Special Appeals ruled that Montgomery Circuit Judge Eric Johnson erred by not asking prospective jurors a question that defense lawyers wanted him to ask: “Is there any member of the panel who would be less likely to believe a witness simply because they were called by the defense?”

Omitting the question was grounds for reversal, according to the appeals court, which also addressed other possible trial errors. Among them, prosecutors were permitted to admit evidence relating to Smith owning eight firearms and keeping ammunition in his apartment, issues that the appeals court termed “highly prejudicial” and, at best, only of limited relevance.

“We’re ecstatic to get another opportunity to prove Gary’s innocence,” said one of Smith’s attorneys, Andy Jezic.

Montgomery Deputy State’s Attorney John Maloney — who has twice tried Smith in the fatal shooting of Michael McQueen, another former Ranger — said that prosecutors will ask the state’s higher appellant court to reverse Thursday’s ruling.

If the ruling stands, the case would be sent back to Montgomery for a possible third trial.

“We’re confident that if he has to be tried again, he will again be found responsible for killing Michael McQueen,” Maloney said.

The case has significant trial-appeals-reversal history.

In 2008, Smith was convicted of depraved-heart, second-degree murder and use of a handgun in the commission of a felony. During the trial, jurors watched a video recording of Smith speaking with detectives, during which Smith changed the details of his story but asserted that McQueen shot himself. Prosecutors said that Smith shot McQueen at close range.

But that conviction was later reversed on a witness issue, setting the stage for a trial that began in 2012. This jury convicted Smith of a lesser charge — involuntary manslaughter — as well as use of a handgun in the commission of a felony. It was that trial that was the subject of the latest appeal.

Amid the appeals, Smith’s attorneys persuaded a different panel of judges to reduce Smith’s sentence — from the second trial — from 28 years to 15 years. Jezic said Smith will be eligible for a second parole hearing in two years.

A new trial in the case could start within eight months, Jezic said.

 Army Ranger gets a third trial; Gary Smith’s Manslaughter conviction is reversed

Post staff writer Dan Morse covers courts and crime in Montgomery County, Md.

Jezic’s client granted a mistrial after jury deadlocks in police shooting

Cape Gazette Jezic’s client granted a mistrial after jury deadlocks in police shooting

Jury deliberates in trial of man accused of assaulting officer

Defendant: I did what I had to do to save my life
By Melissa Steele | Jun 27, 2014

A Georgetown man on trial for assault and resisting arrest says he feared for his life when a trooper came into his home for a traffic investigation but after a scuffle drew his gun and shot him.

Michael W. Rogers, 54, is charged with third-degree assault of a police officer and resisting arrest; police say he fought with a trooper who had gone to Rogers’ home to investigate a traffic accident at a nearby bar. The assault charge was originally a felony, but it was reduced June 26 to a misdemeanor charge.

Taking the stand in his own defense June 26, Rogers said, “I felt like I did what I had to do to save my life.”

Rogers testimony capped a week-long trial in Sussex County Superior Court with Judge T. Henley Graves presiding. Following closing arguments June 26, jury deliberations began.

Rogers told the jury he began his Aug. 2 birthday celebration a day early on Aug. 1, 2013, ending up at a nearby bar about 8 p.m. While leaving the establishment, Rogers said he accidentally bumped into another car with his car. The owner of the car was nearby, and Rogers said he offered his insurance card, but the owner declined.

“The owner said not to worry about it,” Rogers said.

He returned home, ate a bit of dinner and called it a night, he said. About 10 p.m., Rogers’ mother, Lorraine, heard a knock on the door and opened it to Delaware State Police Trooper Matthew Morgan.

Morgan testified earlier in the week about going to Rogers’ home to investigate a traffic accident, intending to give him an $89 inattentive driving ticket. Once he was inside the home, Morgan testified, Lorraine woke Rogers, who appeared drunk and disoriented.

Rogers said Morgan asked him why he left the scene of the accident; Rogers replied it had been taken care of.

“I didn’t feel I was being smart,” Rogers said. “I told him I talked to the guy, and we worked it out. It was a done deal.”

Both men testified Rogers walked away from Morgan in answer to his questions about the traffic incident.

Their accounts differ on what happened next.

Morgan said he followed Rogers into his bedroom where a scuffle began after Morgan touched his tricep. Evidence submitted at the trial shows a Taser was deployed in or near the bedroom.

Rogers and Lorraine Rogers both testified that Morgan shot a Taser and hit Rogers in the back outside his bedroom door.

All three testified that Rogers put Morgan in a headlock during their fight; Rogers testified Morgan burst open the closed door of his bedroom and tackled him first.

Throughout the scuffle, Morgan said he was trying to get his gun, and Rogers said he was trying to stop Morgan from reaching his gun, biting him in the arm at one point.

“I did not touch him first. I did not move toward him … I felt like I did what I had to do to save my life,” Rogers said. “No one would want to be in a position that I was in.”

In answer to Lorraine’s pleading to let go, she said, Rogers eased up and Morgan went to the front of the home.

Morgan testified that Rogers never threatened him or tried to get a weapon. Morgan also said he never gave Rogers any command and, until the scuffle, had no reason to arrest him.

All three testified that after the scuffle, Morgan positioned himself near the front door.

“He was standing there holding that gun waiting for Michael to come out of the bedroom,” Lorraine Rogers said. Outside of the bedroom, Rogers told Morgan not to shoot his mother, she said.

Morgan testified that Rogers picked up the coffee table and came at him in the living room, using the table as a weapon. Morgan said he feared for his life.

“All I can recall is seeing a table coming at me,” Morgan said.

He said he fired seven shots at Rogers in self defense.

In his testimony, Rogers said he put his hands up when ordered by Morgan, who had drawn his gun. An instant later, Rogers testified he realized he had been shot and ducked behind the coffee table, which is now riddled with seven bullet holes.

Rogers said he was hit by five bullets and grazed by one. One bullet remains inside him, he said. “Bullets were flying; everything was flying,” Rogers said. “I felt like I was paralyzed. I couldn’t feel my legs.”

In closing arguments, Deputy Attorney General David Hume reminded the jury that Rogers brought the charges on himself through his combative actions.

“He’s 12 beers into his personal party. He’s not thinking rationally,” Hume said.

Defense lawyer Andrew Jezic questioned the rationale that brought a state trooper to Rogers’ home at 10 p.m. Aug. 1, 2013.

“This was all about an $89 ticket. Is that right? It’s not right,” he said.

Speaking during a break, Hume said the $89 inattentive driving ticket was never filed because of the charges resulting from the ensuing scuffle.


Complete acquittal in Annapolis murder case for O’Neill and Jezic client, an Air Force Sergeant.

The Baltimore Sun Complete acquittal in Annapolis murder case for O’Neill and Jezic client, an Air Force Sergeant.

Glen Burnie man acquitted in shooting death of visitor to his home

By Pamela Wood, The Baltimore Sun
Updated June 20, 2014

A Glen Burnie man was acquitted Friday of charges that he murdered a man who barged into his home last fall.

Anne Arundel County Circuit Court Judge William C. Mulford II ruled that prosecutors had not proved beyond a reasonable doubt that Matthew Pinkerton was guilty of either second-degree murder or manslaughter in the September shooting death of Kendall Green.

Mulford’s ruling came at the conclusion of the prosecution, before Pinkerton’s attorneys launched their defense.

Green showed up at the Pinkerton home in the early morning hours of Sept. 15, demanding to see Pinkerton’s wife, with whom he had a relationship, according to both prosecutors and defense lawyers. Pinkerton demanded Green leave, but Green came through the front door. Pinkerton fired two shots, killing Green, attorneys said.

Prosecutor Brian Marsh argued the shooting was the culmination of a long-running feud between the two men.

Criminal Defense lawyer Peter O’Neill argued Pinkerton was defending his home, his friends and wife who were inside. At the end of the prosecution’s case Friday, O’Neill filed a motion asking the judge to declare the prosecution failed to meet its burden of proof. Mulford agreed.

“We were elated with the court’s decision … It was the right decision made based on the evidence presented,” O’Neill said.

Pinkerton, who had been out on bail, will now seek to revive his career as an Air Force sergeant, O’Neill said. Once Pinkerton was charged, his security clearance was suspended, O’Neill said.


Acquittal on DUI and two misdemeanors for client facing immediate deportation.

Virginia criminal attorney

Virginia criminal Attorney Jonathan R. Oates wins complete acquittal on DUI and two other misdemeanor for client facing immediate deportation

In early May 2014 in Spotsylvania County, Virginia, attorney Jonathan R. Oates fought for a client who had been detained for immigration purposes for nearly two months on charges of DUI. The case involved open alcohol bottles in the car, an accident, the clients confession to the state trooper, and a blood alcohol content more than twice the legal limit. With the clients freedom from immigration on the line, attorney Oates fought the charges at trial. Following his cross-examination of the officer, the judge sided with Mr. Oates’ argument that the prosecutor had failed to show the defendant had been even driving at all and dismissed all charges.

Having defeated all criminal charges, the defendant was able to be released from immigration custody to return home with his family after two months of incarceration.


No jail result for client facing six counts of felony drug distribution in Fairfax County.

Fairfax criminal lawyer

criminal defense attorney Jonathan R. Oates wins extraordinary no jail result for client facing six counts of felony drug distribution in Fairfax County Circuit Court in May 2014.

Mr. Oates’ client had touched an illegal substance or had a sip of alcohol, six felony drug distribution charges from Fairfax County continued to haunt him. Up against six felony drug distribution charges, Mr. Oates’ representation widdled them down to only two in the Circuit Court. Even with only two felonies at sentencing, the client was still facing sentencing guidelines of a minimum of 9 months, and as much as 18 months in a Virginia state penitentiary.

With odds stacked heavily against them, Mr. Oates and his client kept hope for a no jail sentence that would allow the client to keep working, return to college, and continue his remarkable rehabilitation from drugs and alcohol as a free man.

On the day of sentencing, with the prosecutor pushing for more than one year of penitentiary time, Mr. Oates presented the judge with a courtroom packed full of support, evidence of clients progress and commitment to being drug and alcohol free, and the argument that this was a person who is moving forward beyond past demons and is better suited progressing as a free man. The judge was persuaded by Mr. Oates ‘ argument and presentation. Ruling against the strong recommendation of the prosecutor, and looking beyond the sentencing guidelines, the judge granted Mr. Oates’ request that the defendant not receive any active jail sentence.


Rockville man accused of Sexual Offense charges released.

Rockville sex offense lawyer

In the Defendant’s third bond hearing, Rockville criminal Attorney David Moyse convinced the Judge to lower his client’s bond from $250,000 to an unsecured personal bond. This means that all his client had to do was sign his name in order to be released from jail. The man had been in jail for over 45 days.


DUI Attorney David Moyse Convinces Montgomery County Judge to Suppress FSTs.

Rockville DUI attorney

In a recent trial in May 2014, Rockville DUI attorney David Moyse convinced the District Court Judge that the police officer had no basis to request that his client perform field sobriety tests. As a result, the prosecution could not introduce any evidence of Moyse’s client being impaired by alcohol. This prevented the State from introducing Moyse’s client’s breath result of 0.15 – almost twice the legal limit. Moyse’s client was acquitted of all incarcerable charges, received no convictions, and no impact on her driving record.


David Moyse gets two clients Not Guilty verdicts on DUIs in the same day!

In May 2014, Maryland DUI attorney David Moyse had an impressive morning as he helped two clients beat their DUI charges and avoid jail time.

In the first case, the prosecuting attorney planned to ask for a month in jail for Moyse’s client’s third DUI. Moyse successfully convinced the Montgomery County District court Judge to dismiss the case in its entirety for failing to provide the Defendant with a “Speedy Trial.” Moyse’s argument was bolstered by the fact that the Defendant had appeared twice in court with Moyse demanding a trial, but both times the Court ran out of time to hear the case.

Ultimately, the client walked out of Court with no fines, no points, and no jail!

In the second case, Moyse’s client was underage, driving over 130 mph on the Beltway, and admitted to consuming some alcohol. Maryland DUI lawyer David Moyse successfully cross-examined the arresting officer into admitting many facts that were damaging to the State’s case.

At the close of evidence, the Defendant was found NOT GUILTY of DUI, DWI, and Fleeing and Eluding. The client still faced hefty fines for driving 130 mph in a public area, but escaped jail time and kept a clean DUI record.


Maryland Personal Injury Forces Drunk Driver to Accept Responsibility for the Injuries He Caused

Maryland Personal Injury Attorney, Jonathan Carroll, won a hard-fought case for his client who was injured after crashing into a disabled car on a busy highway. The disabled car was left behind by a drunk driver who previously crashed into a guardrail. Carroll argued that even if he was not in his car at the time of the accident, the fact that a drunk driver left his car sitting in the middle of a busy highway was negligence in and of itself. The insurance company for the drunk driver tried to argue that he was not responsible since he was not inside his car when the accident happened. The Court disagreed and sided with Carroll. The Court noted that the drunk driver was not only negligent in causing the accident, but also negligent in not moving his car out of the road. Carroll’s client was awarded all of his medical bills, lost wages, plus more than double that amount in pain and suffering.

By Jonathan R. Carroll


Dismissal and little Jail time for DWI number three and four.

Howard County DUI lawyer

Attorney David Krum convinced a Howard County district court judge to sentence the Defendant to only four days of incarceration for his client’s third and fourth DWIs. The Jezic, Krum & Moyse client had been charged with driving under the influence two times within 30 days. In each case, the client had submitted a breathe test over .20, an amount almost 3 times more than the legal limit in Maryland. Attorney David Krum forced the Howard County State’s Assistant State’s Attorney to dismiss one of the cases and following a plea, where the state was asking for 6 months, convinced the judge to sentence the Jezic, Krum & Moyse, client to only 4 days in jail.


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