Some Cases Complicate Push to Vacate Baltimore Pot Convictions

BALTIMORE (CN) – Plaudits inundated the office of Baltimore’s top prosecutor last month when State’s Attorney Marilyn Mosby announced she would right the wrong of jailing thousands of people, usually black, for pot possession.

As the dust settles on the historic shift in criminal justice, however, experts question the implications of Mosby’s bid to erase 4,800 marijuana convictions.

Baltimore State’s Attorney Marilyn Mosby, right, holds a July 27, 2016, news conference after her office dropped the remaining charges against three Baltimore police officers awaiting trial in the death of Freddie Gray. Mosby will no longer prosecute any marijuana possession cases, regardless of the quantity of the drug or an individual’s prior criminal record, authorities announced on Jan. 29, 2019. (AP Photo/Steve Ruark)

To succeed with her rarely used legal maneuver, a petition known as “writ of error coram nobis,” Mosby will need to prove that the conviction caused significant collateral consequences, such as a deportation, that the defendant could not have foreseen when he pleaded guilty.

Complicating this effort, however, is the chance that individuals with marijuana convictions faced other charges in the same prosecution. In the 1,050 circuit court marijuana cases that Mosby has petitioned, moreover, nearly half are violent offenders.

“In a real coram case, everything that’s part of that guilty verdict goes out, but she’s single-shooting [the pot pleas],” said David Plymyer, a former assistant state’s attorney and county attorney in Anne Arundel, in an interview. “She’s way out on the frontier, way out in front of what coram nobis is thought to be able to accomplish.” 

One type of successful coram showing could involve a decades-old plea that resulted in deportation proceedings, but Mosby noted several more “collateral consequences that flow from a criminal conviction: 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.”

Courthouse News checked a randomized 10 percent of the 1,050 cases listed in the circuit court petition, and then searched the criminal records of those defendants, ultimately examining more than 1,000 criminal cases. 

Of 105 coram nobis cases from the initial review, seven had already been expunged, and one defendant appeared twice. The remaining 97 defendants have been arrested, on average, more than 10 times each, with an average of 4.2 criminal convictions. Almost half of those checked (48) had at least one conviction for a violent crime either prior or subsequent to pleading guilty to pot possession. Several defendants are currently imprisoned for violent crimes. Others have serious criminal charges pending. 

If this sample from circuit court is representative, about 480 violent offenders could be getting a break from the city’s prosecutor. Many of the cases CNS checked originated as drug-dealing cases, which were plea-bargained down to possession. Four of the cases involved gun charges and at least two of those were gun convictions. 

Apart from the 1,050 convictions identified by Mosby’s petition in city circuit court, a twin filing in district court, where less serious cases are adjudicated, targets 3,778 cases.

Prosecutors compiled the cases by running a computer code through the case-search database, and Mosby’s chief deputy Michael Schatzow said that to stay efficient the office has not undertaken individual case examinations.

“I think there are probably all kinds of cases in the pile,” Schatzow said. “In the district court they are probably primarily straightforward possession of marijuana.”

Schatzow called the coram nobis route a creative — if more complicated —  way to accomplish the goal of a bill pending before the Maryland Legislature that would make it easier for state’s attorneys to vacate convictions, 

“We acknowledge that we’re seeking an extraordinary remedy, and we’re doing it in a way that it not typical,” Schatzow said. “We are very proud of our creativity.” 

Though Schatzow said he has not heard any criticism, lawyers note that a vacated pot conviction could have unintended repercussions on related cases — as when a weed case triggers a probation violation, for example. 

“There’s no way to know unless we take them one by one,” Plymyer said.

But Schatzow emphasized that the focus on marijuana is key.

“Our motion will not affect any conviction for possession of a gun,” Schatzow said. “We’re not interested in vacating any of the gun charges. In many of these cases, marijuana is the only charge. And if it’s one of a number of charges, this has no impact on those other charges.”

Though Schatzow conceded that “at some point every case will have to be looked at,” he said the en-masse approach is ideal for now.

“We’re tying to do this in a way that can address the problem but in the most resource-sensitive way we can,” Schatzow said.

One of the cases identified in Mosby’s circuit court petition is that of Anthony N. Young, 34, who served about a week in jail with three years of probation after pleading guilty to possessing a gun illegally. It was his second illegal gun conviction, and he was convicted of an assault and arson threat shortly thereafter. In 2014 Young was charged again with illegal gun possession and was acquitted. 

Fareed Hayat, who represented Young in the 2013 case, did not reply to phone messages and emails directed to his office at City University New York, where he teaches law.

Courthouse News did get in touch with Coriolanus A. Ferrusi, a former public defender now in private practice who represented Arvin Y. Waites in a case that Mosby has flagged for dismissal.

“If it’s a marijuana conviction, that’s probably a drop in the bucket as far as Mr. Waites is concerned,” Ferrusi said.

Waites, 50, has been arrested 20 times and convicted 12, mainly for drug dealing but with an illegal gun-possession conviction just last year.

Ferrusi explained that the gun case was dodgy because Waites was charged with “possessing” a gun he rented from a firing range. “Technically they’re breaking the law,” Ferrusi says, “but it’s in no way your gun that you possessed.” 

Even before trying to determine whether a conviction harmed a person’s reputation, the process of undoing a single conviction is a tricky one.

Davar Anderson, 21, served one day in jail on a 2018 pot bust that Mosby seeks to vacate. But that arrest violated the probation on one of Anderson’s previous armed robbery cases. He has another probation violation case pending in the county and a separate first degree assault charge in the city on Feb. 27. 

“I had a lot of faith in Davar,” his lawyer, Andrea E. Jaskulsky, said in an interview, as she parsed her client’s criminal cases in two jurisdictions to sort out which arrests triggered which probation violations on which days in which courts. “I had faith that he could turn his life around.”

And he may yet. “Clearly if he doesn’t have the marijuana conviction, and this first-degree assault goes away, then he should be fine,” Jaskulsky said.

Former Baltimore police officer Peter Moskos said the serious criminal records Courthouse News found for people charged with simple pot possession are not surprising. 

“Weed arrests are usually pretextual,” said Moskos who now chairs the Department of Law, Police Science, and Criminal Justice Administration at John Jay College of Criminal Justice in New York City.

“Cops in Baltimore and everywhere I know, they tend not to make the [marijuana] possession arrest unless it’s for some other reason,” Moskos added. “They’ll do the car stop and find the gun or something and throw the pot charge in too. I mean there are cops who are assholes, and they do it sometimes but that’s not the usual. The proof is that all these people have very serious records.” 

Baltimore Police spokesman Matt Jablow noted that officers will follow the law.

“Arrests for marijuana possession are an infrequently used, but sometimes important, law enforcement tool in Baltimore,” Jablow said in an email. “Our officers will continue to follow the law and department policy regarding marijuana possession as circumstances require, and as we continue to focus on violent crime and violent criminals.”

On Mosby’s list, however, several individuals with pot convictions have few if any serious offenses. Trent Jenkins, for example, was listed twice — both times for simple pot possession. His lawyer Jerry Tarud said he heard on the radio about Mosby’s related policy of ending weed prosecutions.

“I was in a state of awe … because there’s a direct confliction between the State’s Attorney’s Office and law enforcement,” Tarud said in an interview.

As for erasing his client’s pot conviction, Tarud said he assumes “it will go unchallenged.” 

“I know we have to file a petition for expungement after that,” Tarud added.

Schatzow with the prosecutor’s office said they shouldn’t expect any future pot arrests to go anywhere. “We’ll cut them loose,” Schatzow said.

Tarud emphasized meanwhile that Mosby’s new pot policy puts a spotlight all government enforcement.

“I’ve had clients call me and say ‘what’s going on with marijuana?’” Tarud said. “And I say, ‘it’s illegal: If you’re caught you may be prosecuted.’ I do understand Ms. Mosby’s position that she wants to put her resources on more serious stuff, but tell that to the police department who keeps locking up these offenders for weed … and until Annapolis has some legislation either one way or another it’s gonna be mass confusion.”

%d bloggers like this: