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Retrial of Former Soldier Gets Underway in 2006 Shooting Death

Montgomery County Circuit Court Judge Eric M. Johnson entered the courtroom shortly after 9 a.m. Thursday and soon called to order the retrial of a murder case involving two roommates who had served together as Army Rangers in Afghanistan.

The defendant, Gary Smith, stands accused of a form of second- degree murder called “depraved heart murder,” which requires only that prosecutors prove that he acted with an extreme disregard for human life.

The victim, Michael McQueen, was found dead of a gunshot wound in September 2006 in a Gaithersburg apartment the two men shared.

During an initial trial in 2008, Smith’s attorneys argued that McQueen had shot himself in what was a suicide. Prosecutors argued that Smith shot McQueen after a night of heavy drinking and then tried to cover up the crime. The jury found Smith guilty of “depraved heart murder” and a gun charge.

But Smith’s conviction was overturned by Maryland’s highest court last year on grounds that Judge Johnson had not allowed jurors to hear evidence that McQueen appeared to be depressed during an arrest for driving under the influence weeks before his death.

Deputy State’s Attorney John Maloney began his opening statement Thursday with a description of the crime: Smith walked up to McQueen, put a .38-caliber handgun to the side of his head and pulled the trigger. Smith then began covering up the murder scene and began hours of lying to police, he said.

“Twenty-two-year-old Mike McQueen . . . had too much going for him to die so young,” Maloney said.

Maloney also played recorded snatches of Smith speaking as he was questioned by detectives, and he told the jury that Smith lied over and over again.

Then it wasdefense attorney Barry H. Helfand’s turn. He conceded that his client had lied to police. But the evidence, he said, will show that McQueen committed suicide or “was horsing around on his own” when he died.

“The weapon was in Mr. McQueen’s hand when it was fired,” Helfand said.

He also questioned whether McQueen was as happy as the prosecution said. He said that McQueen had told a Georgia police officer, after being charged with DUI, “This is the last thing I need on top of all the other [expletive] I have in my life.”

After a break for lunch, the prosecution called its first witness, Glenda McQueen, the victim’s mother, an English teacher and journalist from New Orleans.

She testified that in 2006, her son was looking forward to starting classes at the University of the District of Columbia after three deployments to Afghanistan.

“He was in good spirits,” she said.

Was he depressed? asked Maloney, the prosecutor.

“Not that I saw,” she said. “He was just making plans” about where he wanted to go and how he wanted to get there.

On cross-examination, Helfand asked about the conversation her son had with the police officer in Georgia during the DUI arrest there.

Helfand again quoted the officer quoting McQueen: “This is the last thing I need on top of all the other [expletive] I have in my life.”

What was he referring to? Helfand asked her.

Maloney objected. The judge agreed. McQueen stepped down.

Outside the court, she said she was beginning to get a deeper understanding of where the trial is headed and “how much they will try to persecute my son, his name, his personality . . . in order to get a murderer off free.”

Gary Smith’s grandfather, whose name is also Gary Smith, said it was still early, “but I’m very encouraged of what the end result of this will be.”

He also remarked, “It’s painful to go through this for both our family and the McQueen family.”

Client Reviews
"I have watched Mr. Helfand in trial and in negotiations. He is remarkable. Mr. Helfand is extremely knowledgeable in the law, and even more knowledgeable in the ways to deal with people." Afshin Pishevar, Criminal Defense Attorney in Rockville, MD
"I strongly endorse this lawyer. I have known Mr. Helfand for many years. We have worked together on cases and represented conflicting parties. I have watched Mr. Helfand in trial and in negotiations. He is remarkable." David Felsen, Criminal Defense Attorney in Rockville, MD
"It’s one of the biggest cases that’s been tried in Montgomery County in a long time,” said Steve VanGrack, a Rockville lawyer considering a Democratic bid for state’s attorney." Washington Post