FOR IMMEDIATE RELEASE
Annapolis, MD (February 27, 2019) – Baltimore City State’s Attorney Marilyn J. Mosby urged the Maryland House of Delegates’ Judiciary Committee to support bipartisan legislation that would help make the justice system fairer. House Bill 874 would allow judges to grant a prosecutor’s request to vacate a conviction “in the interest of justice and fairness,” especially in cases involving actual innocence, cases tainted by police misconduct, or cases involving behaviors like marijuana possession that would not be prosecuted in the jurisdiction today.
“Prosecutors have the affirmative ethical and legal obligation to seek ‘justice over convictions,’ not only during the pre-trial stage and up to conviction but our ethical obligation also extends beyond a conviction to ensure the integrity of that conviction,” said State’s Attorney Mosby in her testimony. “We can’t afford to wait while there are individuals that are sitting in jail or walking around suffering the collateral consequences of wrongful convictions where their life, liberty and freedom are in jeopardy.”
HB 874 was proposed after recent incidents in the Baltimore criminal justice system exposed a gap in the law where there is no clear procedural right for a prosecutor to formally ask a judge to revisit a conviction and secure justice for those unfairly or wrongly convicted. Baltimore prosecutors faced tremendous challenges in trying to vacate convictions that were tainted due to the involvement of the former Baltimore Police Department Gun Trace Task Force (GTTF) officers. While the Baltimore City State’s Attorney’s Office has filed 151 joint motions with the Office of the Public Defender to vacate convictions believed to be hopelessly tainted due to the unethical conduct of the GTTF, 28 motions--nearly 19%--have been denied on the grounds that there is no legal basis for a prosecutor to request that the judge vacate the conviction. If HB 874 passes, prosecutors would have a legal remedy to ask a judge to vacate those convictions.
The proposed legislation is sponsored by Delegate Erek Barron (D-24), a former state and federal prosecutor. It is a bipartisan effort co-sponsored by ten additional legislators that would bring Maryland in line with other states that have already enacted similar legislation including California, Arizona, Massachusetts, and New York. In Massachusetts, for example, in a scenario reminiscent of the Baltimore GTTF scandal, prosecutors vacated almost 20,000 cases following the fraudulent and criminal acts of a chemist in a state lab tainted evidence used to secure drug related convictions.
Mosby was joined by a number of criminal justice stakeholders that testified in support of the legislation, including the State’s Attorney for Prince George’s County, Aisha Braveboy, who represents the second most populous jurisdiction in the state (Maryland has 24 counties or county equivalents, but collectively, Mosby and Braveboy represent one-quarter of Maryland’s population). “It’s not an easy decision for any State’s Attorney to determine that an individual should not have been convicted of a crime,” Braveboy said in testimony to the Judicial Committee. “But after research and doing due diligence, if a state’s attorney believes that in the interests of justice that individual should have an opportunity to appear again before the court and have that conviction struck, we should not have laws or systems in place that would prevent justice from happening.”
Others testifying in support of the proposed legislation include:
- David LaBaughn; CEO of the Association of Prosecuting Attorneys
- Retired Judge Alexander Williams, Chair of the Commission to Restore Trust in Policing
- Paul Dewolfe, Public Defender for the State of Maryland
- Michelle Nethercott, University of Baltimore Innocence Project
- Doug Colbert, University of Maryland Law Professor
- Nicole Hanson, Out for Justice
- Dayvon Love, Leaders of a Beautiful Struggle.
The appendix below includes selected quotations from each of the people who testified in support of the legislation before the House of Delegates’ Judiciary Committee.
8:08: Delegate Erek Barron
8:21 “The prosecutor has a duty to seek justice. And that includes a responsibility to correct wrongful convictions … In Maryland, there is no clear tool for the prosecutor when this happens. House Bill 874 provides a mechanism for a prosecutor to do what he or she is bound to do legally, ethically and by well-tread standards. As an attorney and officer of the court, the prosecutor is unique and by codifying this responsibility, the proposed provisions would not only protect individual rights, but also serve to enhance public confidence in our justice system.”
12:14 “Under the bill, it’s ultimately up to a judge to make the decision. And any named victim should be heard. This is simply one tool to empower a prosecutor, at his or her discretion, to do justice.”
12:36: Marilyn Mosby, Baltimore State’s Attorney
13:00 “As many of you are aware, certain Baltimore police officers who served as part of the Gun Trace Task Force engaged in sustained criminal activity over an extended period of time which included selling drugs, robbing people, engaging in extensive overtime fraud and filing falsified affidavits and reports, among other illegal behavior. As a result of the testimony, at a number of federal trials, as well as additional information provided to my office by the US Attorney’s Office, we determined that as prosecutors we ethically could not let convictions stand where they were based on the testimony of evidence from these tainted officers. We identified 2171 circuit court cases involving the tainted officers and began to review them to determine whether each case was viable without the tainted officers involvement. For those that were, we did nothing. For those that weren’t, we began to file joint motions to vacate, along with the Office of the Public Defender.”
57:12 “As prosecutors, it is our affirmative obligation to rectify and to right the wrongs of the past, the present and the future.”
16:04: Tony Gioia, Chief Counsel of the Baltimore City State’s Attorney Office
16:36 “The issue of police misconduct is not a local issue. It is not limited to Baltimore city. It is not only a statewide problem, it is a nationwide problem.”
18:40 “Oddly, in a state where the state constitution gives such broad discretion to do justice until someone is sentenced, that discretion terminates virtually completely upon sentencing. We are now, as the law exists in the state of Maryland, purely reactive even when such unconscionable and patently clear police misconduct occurred through the Gun Trace Task Force, dating back years … We are powerless to initiate proceedings to vacate a conviction when there’s newly discovered evidence of police misconduct.”
19:27: Alex Williams, Retired Judge and Chair of the Commission to Restore Integrity in Policing in Baltimore.
20:29 “I was stunned, having served as a trial judge myself, I was stunned when two parties, both the state and the defense come together in a joint motion and request something to alleviate a miscarriage of justice, that a judge reported that he or she was not able to do anything about it. I thought that was appalling.”
21:33: Paul DeWolfe, Public Defender for the State of Maryland
22:53 “This is an integrity bill. It’s a fairness bill. And it’s a public safety bill.”
23:47 “I’m proud of the prosecutors in this state, and throughout the country, who are stepping up and doing all that they can to reverse convictions when those convictions are unfair or no longer a crime.”
24:09: Aisha Braveboy, State’s Attorney for Prince George’s County
25:23 “It’s not an easy decision for any State’s Attorney to determine that an individual should not have been convicted of a crime. But after research and doing due diligence, if a state’s attorney believes that in the interests of justice that individual should have an opportunity to appear again before the court and have that conviction struck, we should not have laws or systems in place that would prevent justice from happening.”
27:01: David LeBahn, President of the National Association for Prosecuting Attorneys
27:27 “Please give us discretion to do the right thing for the right reasons.”
30:07: Doug Colbert, Professor of Law at Maryland Law School
31:25 “A person should not be carrying a conviction for the rest of their life when the prosecutor has made a determination that there was something wrong that happened at the trial stage or at the conviction stage.”
32:27 “I applaud every prosecutor (those who are here today and those who couldn’t be here) who see their role as correcting injustice. It could not happen at a more important place than Baltimore because right now, one of the difficult jobs of the state’s attorney is to convince the community that has been most affected by these wrongful actions to trust and to cooperate and to come forward as witnesses.”
47:46 “What I like about this proposed bill is that it opens the doors of justice to allow the prosecutor to enter and to make an argument. It requires a judge in making findings as to whether or not the interests of justice would be served. So there’s a lot of process involved here. It notifies the crime victim. And, of course, as Delegate Sidnor pointed out, it’s important not just to be present but for the actual victim of a crime to weigh in and to give statements. And a judge is going to make the ultimate decision here. So this is just opening doors. Which is really the prosecutor’s job. They are the gatekeeper. In my view, they’re the ones who should be deciding whether or not to press charges in the first instance. And now, they’re looking at whether or not a particular conviction would stand the kind of scrutiny that’s consistent with our sense of justice for the community.”
58:44: Dayvon Love, Director of Public Policy at Leaders of a Beautiful Struggle
58:50 “It’s become conventional wisdom that the war on drugs is a phenomenon that has undermined the humanity of people of African descent and people of color more broadly. That hundreds of thousands of people have been trapped into the criminal justice system. And this body has actually made moves to address some of that, whether we’re talking about the Justice Reinvestment Act; whether we’re talking about ban the box on college applications; whether we’re talking about the Maryland Second Chance Act.”
1:01:04 “It’s my position that this bill is an example of the kind of tool that provides prosecutors the ability to repair the harm that has been done as a result of the war on drugs.”
1:02:58: Michele Nethercott, Member of the National Innocence Network
1:04:50 “State’s Attorneys are in a very different position than someone like me or someone who is counsel for a convicted defendant in that they have access to information that we do not. We don’t have access to investigative files. We don’t have access to State’s Attorney files. They’re in there day in and day out with access to that information. They are in a much better position to be able to identify what we have sometimes seen throughout the country as these systemic problems that have resulted in the conviction of innocent people.”
1:06:25: Nicole Hanson, Executive Director of Out For Justice
1:0707 “We have thousands and thousands of individuals behind those walls who have been wrongfully convicted. And those who are home who have been wrongfully convicted and suffer tremendous collateral consequences as the result.”
1:08:05: Alvin Potts, Member of Out For Justice
1:09:14 “I am someone who was affected by the Gun Trace Task Force. I was convicted in 2016. My conviction was overturned but I feel that there is a lot of people who is incarcerated for things they didn’t have nothing to do with. They’re innocent. They’re sitting in their cells suffering right now.”
1:10:11: Michael Schatzow, Chief Deputy State’s Attorney, Baltimore State’s Attorney
1:11:20 “The case law teaches us that when a prosecutor confesses error, that doesn’t determine the judge’s decision, but the judge should pay great deference to it.”
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