CannaPress: Ericson finds how reality can muck up Baltimore prosecutors’ effort to cure pot prohibition’s errors

By Van Smith

Baltimore, Feb. 21, 2019

Courthouse News Service‘s Edward Ericson Jr. has discovered what wasn’t immediately apparent about the Baltimore City State’s Attorney’s Office’s move, announced with fanfare in January, to strike thousands of past pot-possession convictions the office previously had fought for: that the effort will be complicated, thanks to the realities of Baltimore crime.

Ericson looked in detail at 10 percent of the 1,050 Circuit Court cases the Baltimore prosecutors aim to reverse, and found nearly half had “a least one conviction for a violent crime either prior or subsequent to pleading guilty to pot possession.”

That many pot-possession defendants also faced other charges is no surprise: when cops make arrests for guns or assault or drug-dealing, they’ll often throw into the mix whatever charges the evidence lets them, such as, say, having a little weed in addition to crack and a gun. Such facts add particularized nuances to the process of reversing each individual pot-possession conviction, as lawyers and judges will need to hash out how the charge fits into the larger picture, with possible repercussions at sentencing or for probation violations.

Full disclosure: Ericson is a former longtime colleague of mine.

Cannabuzz: It’s “State v. State” in court brief to erase pot-possession convictions in Baltimore City

By Van Smith

Baltimore, Jan. 31, 2019

When a state criminal conviction causes unjust collateral damage to the convict, Maryland courts may issue a “writ of error coram nobis,” which clears the conviction. To do so, arguments must persuade the court that strict legal thresholds have been met. The Baltimore City State’s Attorney’s Office (BSAO) this week made those arguments in Baltimore City Circuit Court, acting as the coram-nobis petitioner on behalf of thousands of pot-possession convicts whose cases date back to 2000.

The defendant in that civil proceeding? The same as the petitioner: the State of Maryland. In essence, the BSAO is suing itself over what it now believes was and is a terrible and harmful miscarriage of justice: the prosecution of a disproportionate number of African-Americans for possessing cannabis.

The petition, signed by BSAO chief counsel Antonio Gioia and chief deputy state’s attorney Michael Schatzow for the elected Baltimore City State’s Attorney Marilyn Mosby, describes pot prohibition’s “sordid history” that “lies in ethnic and racial bigotry,” and its codification as policy was “insanity” borne of xenophobia against “a large influx of Mexicans into America seeking to escape the violence of the Revolution of 1910.”

Some of the arriving Mexicans used “marihuana” recreationally, the petition continues, while some Americans at that time treated ailments with cannabis. A “campaign of government-sponsored fearmongering against the new immigrants” ensued, the petition recounts, resulting in most states outlawing pot possession by 1931. Thereafter, the blatantly racist federal anti-drug effort led by Harry Anslinger resulted in a de facto federal ban in 1937. The “final descent into legislative madness,” argue Gioia and Schatzow, occurred when cannabis was deemed a Schedule I controlled dangerous substance, joining the ranks with heroin and cocaine.

(In a footnote, Gioia and Schatzow add that “the complete irrationality of maintaining marijuana as a schedule I drug” – which “by definition is one that has ‘no accepted medical use’” – “is evident by the fact that there are currently in excess of 47,000 patients enrolled” in Maryland’s medical-marijuana program.)

The petition cites the U.S. Supreme Court in noting “the determination of Congress to turn the screw of the criminal machinery – detection, prosecution, and punishment – tighter and tighter,” while arguing, citing in particular the crack-cocaine sentencing disparity that Congress in recent years has lessened, that the machinery “has been applied disproportionately against the African-American community.”

While cannabis use is a color-blind phenomenon, the petition explains, enforcing pot prohibition has been racially lopsided. African-American Marylanders were nearly thrice as likely as whites to be arrested for pot possession between 2001 and 2010; in Baltimore, the figure was 5.6 times. The racially disproportionate effect of pot-possession enforcement plays out nationwide, the petition points out, and continues even as the wave of decriminalization and legalization has swept the country since 2010 – including in Baltimore City, where “racial disparities continue to exist after the decriminalization of small amounts of marijuana.”

This historical and ongoing race-based unequal treatment under the law, the petition asserts, meets the coram-nobis legal requirement that “challenging the criminal convictions are of a constitutional character.” As for showing collateral damage necessary for a writ, Gioia and Schatzow cite a litany of harms arising from the convictions – not only to reputation, but also “denial of eligibility for government benefits, significant social and psychological difficulties, public housing eligibility, use of criminal history by private landlords as a screening device, convictions operating as a de facto basis for job denial, and for those convicted individuals who are employed, much lower earnings than individuals without a conviction.”

Over time, the petition states “the collateral consequences have increased in both severity and unfairness, in light of the continued disparate enforcement, well-documented by research, and the subsequent legalization or decriminalization of marijuana in various quantities and circumstances.”

Calling cannabis possession a “patently innocuous” offense, the petition argues that the BSAO’s position is “tantamount to a confession of error” for prosecuting it over the years, especially now that “contemporary attitudes and public policy toward marijuana have changed dramatically.”

That the confession is coming from the office that prosecuted the offenses – that the petition is a “State v. State”-captioned matter – adds weight to the BSAO’s groundbreaking argument.

Hung Jury: Circuit Court Expunges Controversial 1992 Grand-Jury Report

By Van Smith

Published in City Paper, June 5, 1996

The report of the May Term 1992 Baltimore City Grand Jury, which called for a state investigation of the city police department and the state’s attorney’s office after alleging “gross misconduct” on the part of members of both agencies, was expunged by order of Circuit Court Judge Edward Angeletti January 18. The order was signed without a hearing because no opposition to the expungement petition was filed with the court. The outcome of the proceeding in January drew little public notice, even from people involved in the jury process.

State Department of Juvenile Justice Secretary Stuart Simms, who was the Baltimore City state’s attorney when the grand jury issued its report in March 1993, teamed up with current city State’s Attorney Patricia Jessamyn to enter the expungement petition last November. Angeles, who was assigned the case by Circuit Court Administrative Judge Joseph H.H. Kaplan, concluded that the grand jury, in violation of its common-law authority, “exceeded its powers” by criticizing the local criminal-justice establishment without handing down indictments.

The 23-member grand jury found that the evidence produced during its six-month investigation (including testimony from 50 law-enforcement officials and prosecutors) “clearly demonstrates a hands-off approach when the targets were certain well-connected members of the community … . There is an organized structured effort of some present and former members of each agency to perpetuate the protection of a select few to further obvious illicit gains.” A follow-up probe by the state prosecutor’s office determined that the allegations were “unsubstantiated.”

The report specifically mentioned Simms in connection with some of its corruption allegations, according to Angeletti’s decision. A sealed version of the report, which was submitted to Kaplan in early 1993, named individuals targeted by the grand jury. The publicly released version, though, was purged of names, including Simms’. Angeletti says the expungement order calls for an effort to recover and destroy copies of the report.

The jury, which was asked by Circuit Court Judge Kenneth Lavon Johnson to look into why Baltimore’s “war on drugs” wasn’t working, unleashed a litany of scathing criticisms in its report. It claimed that the police department’s rotation policy, in which officers are reassigned to other police units, was used to thwart criminal investigations; it noted a pattern of investigations halted by the upper echelons of the police department and the state’s attorney’s office; it alleged there was abuse of the police overtime-pay system and that there were racially discriminatory employment practices; and it claimed the police department mismanaged its criminal investigation division’s drug-enforcment section (CID-DES), which was said to operate “on its own terms with little control or direction.”

Furthermore, the grand-jury report criticized the police department brass for failing to recognize or try to stop the advance of New York drug organizations into Baltimore. And it said “contempt” and “resistance” was displayed by the state’s attorney’s office while the grand-jury investigation was conducted.

The jury made several recommendations based on its findings, including that a special prosecutor investigate the police department and the state’s attorney’s office. The jury asked that a prosecutor look into several particular allegations: selective enforcement and prosecution to protect well-connected people and drug activity in particular geographic areas; abuse and misappropriation of police overtime funds, and discriminatory police employment practices. It also called for an independent audit of the police department’s budget, focusing specifically on the fiscal accounts of CID-DES, and the jury concluded that drug drug-enforcement-section supervisors should be reassigned. Finally, the jury suggested that the police department invest in a computer-networking system and a centralized database.

State Prosecutor Stephen Montanarelli conducted the recommended investigation. In his August 1994 final report, he wrote that “the allegations in the report have been found to be unsubstantiated. We hope that whatever damage has been done to the reputation of innocent persons has been repaired to some extent.”

In his decision, Angeletti argued that, because Montanarelli’s investigation found that the grand jury leveled unsubstantiated accusations without indictments, the officials named in the report had “no procedural safeguards to protect against loss of reputation.” To correct this, Angeletti expunged both versions of the grand jury’s report.

Simms vehemently attacked the grand jury’s work after its report was released in March 1993. He called the report “amateurish” and, in a letter published in The Sun, its process “flawed,” and its judge “misinformed.” The jury’s allegations came just as Simms was said to be on the Clinton Administration’s short list of a high-level position with the U.S. Justice Department, according to press accounts. He didn’t get the job, and nearly two years later he was appointed by Governor Parris Glendening to head the newly renamed Department of Juvenile Justice. Repeated calls from City Paper to Simms for comment on the expungement went unanswered.

Judge Johnson had no comment on the report’s expungement. Robert Massey, the foreperson of the grand jury that released the report, says he didn’t know that expungement proceedings had been initiated, but he’s not surprised the courts are quashing the report. He says he doesn’t understand the point of expungement, though.

“I don’t really see how once something has been released to the public, it can be expunged,” Massey says, pointing out that the jury’s findings were debated in the press for months after the report was issued. He says the report was “all over the place” and “a lot of tangential things” were included in it. “If anything was ever going to happen with it, it would have happened before now,” he concludes.

Montanarelli was not available to comment on the expungement order. Another prosecutor from his office, Jim Cabezas, explains that “commenting about the expungement would violate the spirit of the expungement” order.

City Council member Martin O’Malley (D-Third District), who, as a member of the council’s public-safety committee watched the grand jury’s activities closely, says he believes the report may have implicated some people unfairly but that Judge Johnson’s charge was “courageous” and “raised very relevant issues.”

“When you don’t have prosecution of corruption [in Baltimore] that you do have in other cities on the East Coast,” O’Malley says, “… it make you wonder, especially as the [drug-crime] problem continues to worsen. The problem is that there is a hell of a lot of discretion within the police department and the state’s attorney’s office, so we should be extra vigilant in making sure it isn’t abused.”