A former Hagerstown man convicted in the 2007 death of 4-month-old Justice Christopher Calvin Myers-Cannon was back in Washington County Circuit Court on Friday seeking a new trial.
In 2010, Circuit Judge Donald E. Beachley denied the post-conviction petition of Floyd Edward Bingaman III, in which he claimed several instances of ineffective assistance of counsel. On Friday, Bingaman’s attorney, Daniel Ginsburg, asked Beachley to reopen the post-conviction proceeding.
Under the Maryland Uniform Post Conviction Procedure Act, the court may reopen a post-conviction proceeding that was previously concluded if the court determines that is in the interests of justice.
Ginsburg cited several claims of ineffective assistance of counsel by Scott Rolle, Bingaman’s attorney in the November 2007 trial.
A jury found Bingaman, now 26, guilty of first-degree child abuse resulting in death and involuntary manslaughter in the Jan. 6, 2007, death of Justice, according to court documents. The boy died two days after sustaining injuries that a physician at the trial testified were consistent with blunt force trauma, according to court documents.
The state contended Justice was injured by Bingaman while in his care. Bingaman, who was the boyfriend of Justice’s mother, was found not guilty of first- and second-degree murder.
During Friday’s hearing, Ginsburg told Beachley that Rolle should have had the court ask prospective jurors if they had strong feelings about child abuse that would have rendered them incapable of reaching a fair and impartial verdict based solely on the evidence.
“I thought I asked the questions that were necessary to pick a fair and impartial jury,” said Rolle, who was called to testify to Ginsburg.
A witness in the trial also testified that Bingaman told her he believed he was “going back to jail” and that he was going to buy cocaine, Ginsburg said. He argued the state used that testimony to show consciousness of guilt and evidence Bingaman had a prior criminal record.
Beachley noted that the defense objected and the statement by the witness was stricken.
“It was stricken, but the cat was out of the bag,” Ginsburg said.
Another argument by Ginsburg was that jury instructions given by Circuit Judge M. Kenneth Long Jr. on first-degree child abuse failed to specify that one of elements the state had to prove was that the act was intentional.
Ginsburg said “no” when Beachley asked if any Maryland appellate courts had ruled that the jury instruction was inappropriate.
Assistant State’s Attorney Elizabeth Carranza told Beachley that prospective jurors were asked about being fair and impartial at another point in the selection process. Several people in the jury pool indicated they would have difficulty with being objective, considering the nature of the case, she said.
Rolle committed no error in not objecting to the jury instructions which, Carranza said, were “a statement of the law.”
Beachley said he would rule on the defense petition within 30 days.
Family members of Justice Myers-Cannon and Bingaman were in the courtroom.
“We have to keep reliving this,” said Justice’s grandmother, Dee Myers. “All you hear about are the killer’s rights.”
Justice’s family and supporters pushed for a law passed this year which increased the penalty for first-degree child abuse resulting in death from 30 to 40 years.
Bingaman’s conviction had previously been upheld by the Maryland Court of Special Appeals.