| On the night of June 18, 2005, two men burst into Tory Burnett’s home in Baltimore, Maryland, in an apparent home invasion. Burnett’s friend, Jermaine Hardy, would later say that, a “dark skinned guy, he was like the first one, he came in or whatever and he said ‘You all know what it is,’ and I turn[ed] to run.”
Hardy said he heard shots and ran into the basement, where he remembered there was a gun hidden under a cushion. When one of the assailants began to come down the basement stairs, Hardy fired four or five times. He said he didn’t know whether he hit the man, who retreated. A short while later, he heard the men preparing to leave, and he saw the back of a “tall, slim” man going out the back door.
Burnett, who was 29 years old, collapsed as Hardy tried to help him out the front door to a truck. Hardy would later say he heard noises in the back of the house and then ran off to the sound of gunfire. He said he caught a cab to a neighborhood a few miles away.
Detective Robert Dohony of the Baltimore Police Department arrived at the house at about 12:40 a.m. on June 19. The police found Burnett’s body, shell casings, and a trail of blood. They also took swabs from several items, looking for DNA evidence.
Using motor-vehicle records, the police found the truck’s owner, who was Hardy’s girlfriend. She told police that Hardy was shot during the incident.
Four days after the shooting, Hardy reached out to prosecutors. He said he had been reluctant to come forward out of fear he might be charged with use of a weapon or fleeing the scene of a crime. Accompanied by an attorney, Hardy spoke to the police. He gave an oral statement, which was not recorded, and did not sign any statement.
As part of the initial investigation, Dohony had asked other police officers to be on the lookout for shooting victims at local hospitals. An officer learned that a man named Donte Brown had been dropped off at the University of Maryland Hospital that night with a gunshot wound to his foot. The officer took photos of the wound and told Brown to stay put. But Brown left the hospital, and police later learned the man was actually 24-year-old Rodney Brown.
On June 29, 2005, Hardy met with Dohony to look at mugshots. After an unrecorded pre-interview, Hardy selected Brown’s photo from the array and signed his name over his selection. The police recorded those portions of the interview.
Police arrested Brown on July 14, 2005 and charged him with murder, attempted murder, several counts of assault, and weapon violations. Brown gave a statement to the police and denied any involvement, repeating the story he told the officer at the hospital, which was that he saw a robbery as he was leaving a bar and the gunman shot him in the foot, causing him to lose a shoe. As part of the investigation, police canvassed the area around the bar. They didn’t find a shoe, and they said that there were no reports of gunfire.
In early 2006, Hardy reached out to Brown’s attorney and said he had made a mistake. Brown wasn’t the shooter, Hardy said, and he had never seen him before.
Prior to the start of the trial in Baltimore City Circuit Court later that year, Brown’s attorney moved to suppress the identification. At a hearing on April 12, 2006, Hardy said that Dohony had pointed him toward Brown after Hardy said none of the men in the array were the shooter.
“So I told them I ain’t recognize nobody else on there. So he said, he said ‘Well due to this description what about this guy right here’ and pointed” at Brown’s photo. “I told him that the guy I saw there, the partial face that I saw was more way darker than that or whatever. So he said the guy that got shot, so it was the guy.”
Hardy acknowledged signing his name next to Brown’s photo, but he said he was scared to be in the room with the homicide detectives, and that Dohony had told him that this was a DNA case, which made him feel as if the identification wouldn’t matter because the DNA evidence would clear Brown anyway.
Dohony testified at the suppression hearing that he had not tainted Hardy’s identification. Prosecutors played the recorded part of Hardy’s interview, where Hardy said that his selection was not the product of police interference. The judge denied Brown’s motion to suppress.
At Brown’s trial, Hardy testified that he could not identify the shooter. He said that he approached Brown’s legal team and that nobody paid him or forced him to repudiate his early identification.
Rana Santos testified for the state as an expert in DNA analysis. Thirteen items had been tested for DNA, including parts of the truck and objects found inside the house. Although Santos testified that Brown could not be identified as the source of any of the DNA evidence, she also testified that a swab taken from sunglasses at the crime scene contained a genetic mixture of at least three persons, and that neither Brown nor Burnett could be excluded.
Despite these results, Santos testified that there was a “10 of 13 chance” that Brown’s DNA was at the crime scene.
James Wagster, a firearms examiner, testified about the bullets and casings found at the house, as well as the bullet removed from Burnett’s body. Wagster said he identified three different calibers, either from cartridges or bullets. One group was a 7.62 mm, commonly found in rifles, such as AK-47s, but also in handguns. The other two were .45 caliber and .41 caliber weapons. The police never recovered any weapons, either those used by the assailants or the weapon Hardy said he fired.
Hardy had testified that he didn’t see the types of weapons brandished by the assailants and didn’t know what type of gun he used to defend himself, but he said he knew that a shell consistent with an AK-47 had been recovered.
Dohony testified that neither he nor other officers pressured Hardy to make an identification. He said the purpose of the pre-interview, was to “make sure that [interview subjects] know what’s happening, that they’re comfortable in the office, make sure that we’re both on the same page, that the facts are straight, and they fully understand why they’re down there. It’s just a general conversation.” He said during that pre-interview, Hardy selected Brown as the shooter within six seconds.
Dohony also testified about the investigation and his interviews with Hardy. He said that Hardy told police at his first interview that he had been shot in the thigh, and the state entered into evidence a photo of the leg wound taken that day. Dohony said it was a gunshot wound. But there were no medical records to support that statement, and Hardy’s testimony included no references to being shot.
Brown had two witnesses lined up to support his alibi, but his attorney, after mentioning these witnesses in his opening statement, didn’t call them to testify. He would later say that he thought he didn’t need them because the state’s case was so weak and because he worried about the credibility of the witnesses. (During the trial, the attorney had a chance encounter with the witnesses, who told him they would testify to “anything” to help Brown.)
On April 17, 2006, the jury acquitted Brown of Burnett’s murder but convicted him of first-degree and second-degree assault on Hardy, as well as possession of a handgun and use of a handgun in the commission of a felony. On June 26, 2006, Brown received a sentence of 45 years in prison.
Brown did not testify at his trial, and at the sentencing he admitted to being “no angel.” But he said he was innocent. “I wasn’t out doing no crimes or nothing and this crime in this case that I’m facing right now, I don’t know nothing about none of this stuff,” he said. “I’m here for something that I don’t know absolutely nothing about.”
Hardy also spoke at the sentencing. He said: "I wanted to say that’s not the man that shot me. I was trying to tell them at the beginning of the trial that that’s not him. That’s not the person I saw or whatever. I ain’t really been able to sleep ever since he’s been found guilty because I know that’s not him.”
Brown appealed, arguing that there was insufficient evidence that he used a handgun, as the weapon was defined by Maryland law, and that Hardy suffered a serious injury. He also said Hardy’s identification was insufficient.
On October 2, 2008, the Maryland Court of Special Appeals affirmed the assault convictions but vacated the handgun convictions. It wrote: “Because no weapon was placed in evidence, there was no eyewitness testimony of any kind describing the type of weapon that was used as a handgun, and the victim’s wounds cannot eliminate the possibility that the assailant used a rifle rather than a handgun, we look to the ballistics evidence. We find no support in our case law for the proposition that a person may be convicted of a handgun offense based on ballistics evidence that is consistent with use of either a handgun or a firearm that is not a handgun.”
The ruling reduced Brown’s sentence to 25 years in prison.
On October 25, 2019, a judge in Baltimore County Circuit Court ordered post-conviction DNA testing on several pieces of evidence from Brown’s case. The results excluded Brown as a contributor to the sample found on the sunglasses. A judge vacated Brown’s conviction on March 15, 2021, writing: “There is no equivocation. The State’s trial DNA analysis, and the State’s interpretation of the DNA analysis, are completely eviscerated. Contrary to the State’s trial argument that there was a ’10 of 13’ chance that the Petitioner’s DNA was at the scene, there is no chance now and there is no forensic evidence tying the Petitioner to the scene.”
The state dismissed the assault charges on August 5, 2021, and Brown was released from custody. During Brown’s incarceration, he was convicted of possession of heroin and received a concurrent sentence of four years in prison.
Brown filed a claim for state compensation with the Maryland Board of Public Works on December 7, 2021. Joy Phillips, an administrative law judge, reviewed the court records, the state’s response, and held several days of hearings, which included testimony from Hardy and the alibi witnesses that Brown’s attorney didn’t call at the trial.
Hardy elaborated on his trial testimony, in which he acknowledged selecting Brown as one of the assailants.
“Yeah, but at the time I didn’t – I didn’t even realize what I was signing or anything,” he said. “It was just – it felt like I got tricked into signing the paper or something like that. Between the two officers and my lawyer not being there – because my lawyer wasn’t present during this situation. And, I don’t know, it just felt like that there was a lot going on. And they, like, kind of played a word game with me, as far as like getting me to sign the paper and stuff like that.”
Brown also testified, and Judge Phillips would later write: “The hearing on the request was his first time testifying to the events of that evening. It was emotional for him, as he had been waiting for many years to tell his side of the story. The pain he had experienced since being charged with a crime he did not commit was palpable.”
On July 6, 2022, Judge Phillips approved Brown’s request for state compensation and declared him to be wrongfully convicted. His award, which is not public, was reduced by the four years he served on the possession conviction.
Separately, in October 2022, a jury convicted Dohony of attempted theft and misconduct for filing false overtime claims in 2018. A judge threw out the conviction in November 2022, ruling that there was insufficient evidence that Dohony had committed a crime.
– Ken Otterbourg
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