Baltimore state’s attorney’s marijuana lawsuit “nothing more than a publicity stunt.”

In January, Baltimore State’s Attorney Marilyn Mosby announced with considerable fanfare that her office no longer will prosecute people for possession of marijuana. The fact that she also filed a lawsuit asking the Baltimore circuit court to overturn 4,800 convictions for possession of marijuana, however, attracted less notice. The lawsuit should have received more attention, but not for reasons Ms. Mosby would like.

In my opinion, her suit is an affront to the criminal justice system and is nothing more than a publicity stunt. It bears only a passing resemblance to a legitimate legal action, disregards the safeguards of the adversarial system, violates her oath of office, and attempts to arrogate powers belonging to the Maryland General Assembly. It also is based on a legal theory concocted from whole cloth.

She filed what is known as a petition for a writ of error coram nobis. Coram nobis is a last-ditch remedy for overturning a conviction that was based on an error of “a constitutional or fundamental proportion” and that is posing “a substantial collateral consequence” for the petitioner at the time the petition is filed. It is infrequently employed because it may not be used to litigate issues that were or could have been raised at trial or on appeal and is not a substitute for other post-conviction relief.

Ms. Mosby filed the petition in the name of the State of Maryland on behalf of over 1,000 individuals who are not parties to the case. Coram nobis is a civil action against the state. In other words, Ms. Mosby’s petition has the state suing the state on behalf of private citizens seeking to have the state overturn the citizens’ convictions.

Even if Ms. Mosby convinces the court that she has the authority to bring a civil action on behalf of the state against the state to adjudicate the interests of private individuals, she has another hurdle: persuading the court that she should be allowed to turn the judicial process on its head and operate outside the adversarial system.

The adversarial system is the engine of truth undergirding our criminal justice system. Ms. Mosby captioned the suit “State of Maryland vs. State of Maryland,” apparently reflecting her intent to represent both sides of the case. It’s all a bit bizarre.

A real coram nobis case is filed by the petitioner seeking to have his or her conviction overturned. It is served on the state’s attorney. The state’s attorney then has the duty under the adversarial system to bring to the court’s attention deficiencies in the petitioner’s case to make sure that convictions are not improvidently overturned. As applied to Ms. Mosby’s petition, she took an oath of office that requires her to defend against frivolous claims of the type made in the petition, not advocate them.

Ms. Mosby may be able to prove her allegation that enforcement of laws criminalizing the possession of marijuana disparately impacted African-American residents of Baltimore. The rest, however, is fanciful: She claims that the arrests, prosecutions and convictions of all African-Americans for possession of marijuana therefore were unconstitutional even in the absence of discriminatory intent in individual cases and that the remedy is to wipe out otherwise-valid convictions for possession of marijuana.

She cites no case law in support of her legal theory; that’s because there is none.

Perhaps the most troubling aspect of the case is Ms. Mosby’s attempt to usurp the role of the General Assembly. In 2017, the General Assembly passed a bill allowing persons convicted of possession of marijuana to have the record of their convictions expunged four years after conviction or completion of their sentences, whichever comes later.

If Ms. Mosby believes that expungement of marijuana convictions should be accelerated or expanded, then she should make her case to the General Assembly, not the courts. The expungement statute is crafted to avoid the unintended consequences that could result from her suit, assuming it has any chance of success.

For example, if an arrest for possession of marijuana is ruled unconstitutional, then evidence of another crime, such as the illegal possession of a handgun, gathered as a result of the search incident to that arrest was unconstitutionally obtained. That could mean that the handgun conviction also would end up getting overturned.

Is Ms. Mosby genuinely trying to solve a problem? Or was this case filed by Ms. Mosby to maintain her prominence on the national stage as a “progressive” prosecutor? You form your conclusions. I know that I’ve formed mine.

[Published as an op-ed by the Baltimore Post on March 5, 2019 but not posted to my blog until April 14, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

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