Friday, August 30, 2019

Md. high court scraps rule on accomplice testimony

By Steve Lash
Steve.Lash@TheDailyRecord.com

Chief Judge Mary Ellen Barbera (The Daily Record File)
Maryland’s top court has scrapped its long-standing common law rule that criminal defendants cannot be convicted based solely on their alleged accomplices’ testimony.

In a splintered 5-2 decision Wednesday, the Court of Appeals said accomplice testimony need no longer be supported by other, corroborative evidence so long as the judge tells the jury the accomplices’ testimony must be considered with great caution because they may be trying to transfer the blame.

The high court said its ruling applies prospectively and not to past cases.

With its ruling, the Court of Appeals joins at least 32 states that allow carefully instructed juries to accept the testimony of accomplices without corroborating evidence. The high court’s decision overturns its 1911 holding in Luery v. State that accomplice testimony is inherently unreliable without the state presenting evidence to support the testimony.

The court noted it has required no such corroboration for testimony given by arguably less credible witnesses -- such as jailhouse informants and paid experts – and trusted instead that jurors can make their own decisions regarding credibility and potential bias. That trust in juries now also applies to accomplice testimony, the high court added.

“We hold that, in criminal jury trials, the courts should disturb as little as possible the jury’s role of factfinder, as established under the Maryland Constitution,” Chief Judge Mary Ellen Barbera wrote for a three-judge plurality. “This deference to the jury restores the balance between the concerns underlying accomplice testimony and its potential benefits.”

Barbera was joined in the opinion by Judges Joseph M. Getty and Alan M. Wilner, a retired jurist sitting by special assignment. Judges Robert N. McDonald and Shirley M. Watts wrote concurring opinions. 

In dissent, Judge Michele D. Hotten said the rule against uncorroborated accomplice testimony is necessary “for combatting the biases and harms” inherent in the testimony and which cannot be cured through a judge’s directions to the jury.

“The rule provides more than a cautionary instruction and serves to safeguard defendants from accomplice testimony that may be motivated by an accomplice’s self-gain,” wrote Hotten, joined in dissent by retired Judge Clayton Greene Jr., who was sitting by special assignment.

“We find a mandatory instruction, in lieu of the rule, untenable for preserving defendants’ rights against accomplices who may be guilty counterparts in an offense, yet are motivated by self-interest to hide or minimize the extent of that guilt,” Hotten added.  “We must retain the rule, as we have since the 1911 Luery decision, in order to safeguard against the inherent problems that arise from accomplice testimony.”

The Court of Appeals, however, declined to apply its landmark decision to the case before it: an effort by Maryland prosecutors to reinstate a conviction for conspiracy to commit armed carjacking conviction that was based on the uncorroborated testimony of an alleged accomplice.

To apply the new rule would have been “unfair” to Hassan Emmanuel Jones as it would have stripped his only defense, the lack of corroborating evidence, the high court said. Application of the new rule would have also eased “after the fact, the quantum of evidence the state was required to present,” the high court added in affirming the intermediate Court of Special Appeals decision overturning Jones’ conviction in Baltimore County Circuit Court.

The Court of Appeals rendered its decision in State of Maryland v. Hassan Emmanuel Jones, No. 52 September Term 2018.

Wednesday, August 28, 2019

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Baltimore’s police union regularly uses social media to criticize city elected officials, highlight rising crime and amplify criticism of police Commissioner Michael Harrison. The union’s messages are routinely shared using the hashtag #CityInCrisis. (File photo/The Daily Record)

Tensions flare between Baltimore mayor, FOP


Baltimore Mayor Bernard C. “Jack” Young on Wednesday called social media posts by the union representing police officers a “distraction” from the ongoing struggle to quell violent crime in the city.

Young’s comments came after a uniformed police officer was shot at Monday night. The officer escaped unharmed, but the next evening the Baltimore City Fraternal Order of Police Lodge 3 claimed on its Twitter account that officers were told to “stand down” after the shooting. 

“Well, we’re all upset with crime being out of control in the city, and we need all of our partners, including the FOP, to sit down and figure out how everyone can work together instead of everybody putting out all these little quotes,” Young said. “If we’re serious about driving down crime, we need all of our partners at the table. We don’t need people tweeting and being a distraction.”
Young spoke during a regular press conference at City Hall.

Young, who took office in May, said he has not met with the union’s leadership. But he said that he planned to sit down with FOP leaders after the union reached out to him about a meeting.

In response to Young’s comments, the Fraternal Order of Police said in a message posted on social media that no meeting with Young was scheduled. The union says that it was to have met with Young on Monday but that the mayor canceled the get-together because he disagreed with its topic. 

“Honesty, or the lack thereof, is the single largest barrier we have in establishing a productive relationship with the City and BPD,” the union said on Twitter. 
Baltimore’s police union regularly uses social media to criticize city elected officials, highlight rising crime and amplify criticism of police Commissioner Michael Harrison, who took over the department this spring. The union’s messages are routinely shared using the hashtag #CityInCrisis.  

Mayors and the Fraternal Order of Police have clashed frequently in recent decades. The disharmony between the police union and City Hall has only increased since a U.S. Department of Justice investigation following the 2015 riots found the department regularly violated residents’ civil rights. 

The city signed a consent decree with the Justice Department and attempted to reform the police department, but high-profile corruption cases involving the department further eroded trust in the agency.   

The latest episode of friction between Young and the union erupted as a crime surge hampers the city’s efforts to develop and attract business.  

Downtown business leaders and property owners have complained bitterly about an increase in violence following the 2015 riots. Executives at various gatherings have repeatedly told city leaders that their employees don’t feel safe coming and going to work. Commercial real estate brokers and property owners complain that violent crime makes attracting new tenants difficult.  

Baltimore has long suffered with crime. Its struggles with violence, illegal activity and corruption have been the focus of two popular television shows since the 1990s.  

After a steep decline in violence in the early 2000s, murders, shootings and robberies steadily increased after April 2015, when riots ripped through the city after Freddie Gray, a 25-year-old West Baltimore man, died from injuries suffered in police custody. 

The year before the riots, Baltimore had 211 homicides and 369 shootings, according to police department data. An analysis of the 2014 data by the Baltimore Neighborhood Indicators Alliance (BNIA) placed the violent crime rate that year at 13.7 offenses per 1,000 residents.  

In 2015, the number of homicides reached 342 and the number of shootings increased to 683. BNIA found the violent crime rate that year swelled to 16.1 offenses per 1,000 residents.

In 2017, Baltimore again had 342 murders, as well as 703 shootings, with a violent crime rate of 20.1 offenses per 1,000 residents.  

According to police data last updated on Aug. 24, Baltimore had 201 homicides and 508 shootings so far this year.




State budget surplus ticks up to $351M

By Bryan P. Sears

Despite an end-of-the-year budget surplus, the state’s top tax collector is urging Gov. Larry Hogan and the General Assembly to take a  parsimonious approach to the coming budget year.

Maryland raked in nearly $217 million more in revenues in fiscal 2019, according to a report issued by Comptroller Peter Franchot.

The higher-than-expected revenues bring the state’s unassigned surplus balance to $351 million. 

Economic storm clouds, including a historically long period of economic expansion, a trade war with China and signs of a flagging stock market, call for caution, according to the comptroller. 

"Given the indicators we’re seeing, and the potential for disruptions to our economic and fiscal stability in the near future, it would be in our best interest for the governor and the General Assembly to exercise fiscal restraint and deposit this fund balance into our Rainy Day Fund," said Franchot. "Policymakers should take a cautious approach on new spending initiatives, no matter how well intended, that would take more money out of the pockets of consumers who power Maryland's economy."

One of the biggest costs is a potential $4 billion annual expansion of education to pay for the recommendations of the Kirwan Commission. Some lawmakers say new revenues — either a new tax or expansion of an existing one — could be necessary to pay for the program.

The additional revenue was attributed to strong capital gains as well as a Supreme Court decision that opened the door to state’s collecting sales tax on online sales.

"While revenues have again exceeded our modest estimates, this year's figures belie several troubling indicators that increase the possibility of an economic contraction," said Franchot. "Unpredictable swings in trade policy and the ballooning federal deficit, coupled with an unprecedented 121 consecutive months of economic expansion and negative market indicators like the inverted yield curve, all suggest national economic volatility."



Group weighs overhaul of school construction funding

By Bryan P. Sears

ANNAPOLIS — A group tasked with revamping how school construction money is doled out is considering a complicated formula that officials hope will target systems with the most need.
The draft formula could upend a decades-old system that proportionally doles out state aid to all of the state’s 24 subdivisions. But the new proposal seemed to have trouble gaining traction with a number of members of the Work Group on the Assessment and Funding of School Facilities, which found it hard to understand and perhaps even more complicated to explain to constituents.
“I feel like we’re in AP calculus here,” said Sen. Douglas Peters, D-Prince George’s, and one of four legislators — all Democrats — on the panel.
Currently, each of the state’s 24 local governments gets a portion of the pot of state school construction money roughly based on the size and wealth of the jurisdiction. The largest of the state’s jurisdictions, which have projects every year, tend to get the lion’s share of the funding, with smaller counties, which have projects less regularly, sharing the rest.
The draft formula calls for complicated changes in that program based on several factors, including the age of the facility, but with weighting that takes into account other issues, including whether the needs are health or safety related, such as a need for air conditioning or heating.
The formula, proposed by Robert Gorrell, executive director of the Interagency Commission on School Construction, is based on a similar one used in New Mexico. Gorrell was founding director of that state’s Public School Facility Authority.
The goal of the formula is to help local governments and the state identify so-called deficient schools in terms of maintenance and construction needs and to push money toward them. The eventual result, Gorrell said, is raising the quality of all schools across the state.
“It worked in New Mexico,” Gorrell said. 
“It recognized the highest needs in the state so that the scarce dollars -- it’s a poor state -- were able to be focused to those schools with the highest needs,” said Gorrell. “So this weighting worked. In a logical sense, to the (New Mexico) legislators, it worked.”
Gorrell called the formula an attempt to create an objective look at statewide school needs in Maryland.
A number of other panel members found themselves similarly questioning the formula and how they would go about explaining it to the average person.
 Said Perry Willis, executive director of support services for the Cecil County Public Schools.
Maryland State Schools Superintendent Karen Salmon, who chairs the panel, asked members to be prepared to come back at the end of September to finalize a formula they could recommend.
“I don’t think I’ll be prepared to make a vote for that on Sept. 25,” said Del. Geraldine Valentino-Smith, D-Prince George’s.
Maryland lawmakers are expected to return in early 2020 and tackle a number of tough and expensive education proposals supporters say will catapult the state into the forefront of education reform.
The General Assembly is expected to continue work on the Kirwan Commission recommendations. The $4 billion annual plan calls for expanding pre-kindergarten education and for dramatically increasing salaries to attract and retain highly qualified teachers.
The end result, supporters say, will be students who graduate better prepared for college or to enter the workforce.
At the same time, there is a push to improve the conditions of state schools.
Since the early 1970, the state has provided aid to local governments to build and maintain public schools. That aid amounts to the largest portion of the state’s general obligation bond spending.
In all, it’s estimated that the state and counties combine annually to spend $1.9 billion on school construction and renovation requests. But annual needs across Maryland, estimated to be about $2.1 billion, outstrip the state and local government’s ability to fund.
Next year House Speaker Adrienne Jones is expected to propose a bill that would pump $2 billion into clearing that backlog.
Similarly, Republican Gov. Larry Hogan has his own plan to pump billions into school construction and renovation to virtually eliminate every request across the state.
On Wednesday, some lawmakers and other officials on the panel questioned the formula recommended by Gorrell.
His proposal has the potential to upend the current system in which most counties — especially wealthier ones who can afford to match the state aid — could suddenly see more dollars flowing to other jurisdictions.
“So if Talbot County has 10 projects that score really high that’s great for Talbot County, except Baltimore City has 10 projects that score higher. In theory, the money would be routed to Baltimore City, actually I shouldn’t use Baltimore City, but another school district,” said Del. Marc Korman, D-Montgomery. “I think we should keep in mind how we currently do in this state, which is to do it by county. That approach probably makes a little more sense for us to continue in some way, to say it’s not the top 10 projects statewide but making sure each county gets its piece because that’s how our (current) structure is: by county.”
Treasurer Nancy Kopp, who led a commission named for her that identified school construction needs and set the tone for how the state funded it since 2004, said she told Gorrell she has difficulty seeing how the formula advanced education in New Mexico.
“‘And it worked,’” said Kopp, quoting Gorrell back to himself. “What does that mean? I don’t get your measurement.”
“You don’t know if it worked for education,” she said.

Miles & Stockbridge to open Richmond office


By Heather Cobun
HCobun@TheDailyRecord.com

Miles & Stockbridge announced Thursday that it will open an office in Richmond, Virginia, to handle business litigation and commercial matters.

Thomas M. Wolf (Miles and Stockbridge Photo)
The office will be built around the litigation team from LeClairRyan PLLC led by Thomas M. Wolf, a member at the Richmond-based firm. LeClairRyan confirmed earlier this month that it was dissolving after 31 years, according to Law.com.

Wolf will be joined as a principal by Gretchen C. Byrd, also of LeClairRyan, and John MacDonald Robb III, a former principal at the firm. Carl R. Schwertz, a former Richmond attorney with Miles & Stockbridge’s office in Tysons, Virginia, will also join the office.

“Miles & Stockbridge is a perfect fit for our team: the sophistication and expertise of a big firm, with the small-firm collegiality and professional dedication I have come to love in the practice of law,” Wolf said in a statement.

A temporary office will be operating out of the SunTrust Center in downtown Richmond beginning Tuesday, according to Nancy W. Greene, chairman of Miles & Stockbridge. The firm is taking steps to secure a permanent space, she said.

“Our growth strategy since before I took over has been to be a dominant law firm in the mid-Atlantic region,” Greene said. “We have an office in Northern Virginia already, we have offices all over Maryland, but to kind of dominate the mid-Atlantic we needed to go further into Virginia.”

Greene said the firm looks at location as well as practice area when considering expansion.

“When we look at any growth opportunity, we look at how they’re going to complement any of our existing practices,” she said. “This particular group fits very nicely with a litigation practice we already have.”

A long-term location will be designed to house 15 attorneys, with an option to accommodate 30 or more lawyers, according to Greene. The new space will incorporate design and style elements that Miles & Stockbridge uses in all its offices.

Greene said the firm does not have any specific plans to expand further in Virginia in the near term, though she did not rule out expanding to other Virginia locations in the future.

Baltimore man sues police for wrongful conviction


Alleges witnesses were coerced to identify him in 1986 murder

By Heather Cobun
HCobun@TheDailyRecord.com

A Baltimore man exonerated of murder in January is suing the Baltimore Police Department for his 1987 wrongful conviction.

Gary Washington, 58, was sentenced to life in prison for the murder of Faheem Rafig Ali and served 31 years before his conviction was vacated, according to the complaint, filed Tuesday in U.S. District Court in Baltimore. Washington alleges his conviction was the result of an “unjust and underhanded process” by police that involved “pointed and repeated threats” to witnesses.

Washington always maintained his innocence and filed multiple appeals, according to the complaint. Eventually a witness who was a child at the time of the murder came forward and said he had been coerced into fabricating testimony implicating Washington.

“After spending more than 31 years locked in a cage for a crime he did not commit, Plaintiff was finally cleared of the charges against him and released from custody,” the complaint said. “This lawsuit seeks redress for his injuries.”

Washington, who claims the police department’s policy of conducting flawed investigations led to his conviction, cited past cases that eventually resulted in exonerations due to withheld exculpatory evidence, such as inconsistent witness statements.

Ali was killed on Dec. 27, 1986, during an argument with two men on the street, according to the complaint. Homicide detectives found two child witnesses days later who said that they had seen two men speaking to Ali just before he was shot but claimed that they did not know the men’s identities.

Police threatened the mother of one child when they learned he was a witness and said they would take him away from her if she did not bring him to the police station, according to the complaint. At the station, the 12-year-old boy was questioned alone and shown pictures, including Washington’s; he maintained that he did not know who shot Ali, the complaint said.

The officers told the child they would take him from his mother and charge him with a crime if he did not cooperate and identify the shooter, according to the complaint, which said the boy signed a statement falsely identifying Washington.

The second child witness was isolated and questioned near the crime scene and also denied knowing who shot Ali, according to the complaint. Officers later questioned the girl at the police station, demanding that she cooperate and threatening to take her from her mother or arrest her mother, the complaint said.

The police never disclosed to the prosecution or defense the initial statements by both children that they did not know the shooter’s identity.
Washington was arrested and indicted less than two weeks after the murder. He was convicted in June 1987.

One of the child witnesses recanted nearly 10 years later and said his statements had been coerced, according to the complaint. A judge granted Washington’s petition for writ of actual innocence in August 2018, and in January 2019 the state dismissed the charges against him.

“The BPD’s failure to train, supervise, and discipline its employees effectively condoned, ratified, and sanctioned the kind of misconduct that the Officer Defendants committed against Plaintiff in this case,” the complaint alleges. “Constitutional violations such as those that occurred in this case were encouraged and facilitated as a result of the BPD’s practices and de facto policies.”

The lawsuit seeks damages for violations of Washington’s state and federal due process rights, malicious prosecution, detention without probable cause, failure to intervene and intentional infliction of emotional distress. Washington also argues that the city is responsible for the police department, despite its status as a state agency, for having a policy or practice of violating constitutional rights.
Baltimore City Solicitor Andre M. Davis declined to comment on the case Wednesday.

Washington is represented by Gayle Horn, Jon Loevy, Roshna Bala Keen and Renee Spence of Loevy & Loevy in Chicago. Attorneys did not immediately respond to a request for comment Wednesday.

The case is Gary Washington v. Baltimore Police Department et al., 1:19-cv-02473.