An average person charged with a crime misses court on their trial date, but the State enters a nolle prosequi—a dismissal—for which no one but the prosecutor needs to attend the proceeding.

No matter though, the judge officiating this legal “juggernaut” (actually, it’s short and sweet) issues an arrest warrant for the defendant for failing to appear (FTA) for court, essentially non-compliance with a summons.

I’ve seen this happen in Baltimore City courts on multiple occasions even with a defense attorney there protesting. Sometimes it happens as the State dumps a case, but it also occurs at pro forma hearings like arraignments, where a defendant’s presence is also not mandatory.  These moments defy logic. The willingness to expend resources. To find a person, jail them, conduct another hearing and, most appallingly, to deprive an individual of their freedom.

You see, judges can issue warrants if they determine that court orders like summonses or subpoenas have been violated. More often than not, the targets of the warrant are indigent people—clients of mine.

Let’s juxtapose the aforementioned “plight of the peons” with President Donald Trump’s recent mockery of the subpoena process. Amidst Congress’ investigation of potential interference with the 2016 election and subsequent acts to obstruct justice (both associated with him), the President has ignored subpoenas issued by Congress and encouraged several people close to him to do the same, all with impunity.  Further, Trump’s administration has chosen to fight their subpoenas in federal court rather than comply.  Trump’s actions towards and lack of respect for the basic powers of government dilute the meaning of the rule of law and put the hypocrisy of the justice system on full display.

Subpoenas and summonses are essentially the same devices. The nomenclature is often interchangeable. They are both orders designed to compel the appearance of a person or require the production of evidence in court or at a governmental hearing.  Summonses are generally reserved for parties involved in matters while subpoenas also cover witnesses and may deal with tangible evidence. These tools are essential in getting people to show up to court or at hearings and/or to bring important evidence.  

Subpoenas and summonses work because they have teeth. Subpoena literally means “under penalty,” which explains what happens with non-compliance. The body issuing the summons or subpoena can punish those who don’t play by the rules.  The ability to subpoena is so fundamental to our jurisprudence that it’s laid out in the Sixth Amendment for criminal defendants and generally available in courts for all cases.  

Congress also has subpoena powers so that it may conduct investigations for legislative purposes (and special functions like considering impeachment). Congress’ subpoena powers have been recognized by the Supreme Court as far back as 1821. Both judicial and legislative branch subpoenas (and summonses) are enforced through contempt proceedings- in other words, fail to comply and you’ve run afoul of court or Congress. Censure, fine, arrest, jail, or nothing are all potential outcomes in both places, some more likely than others.

As a part of their investigation, the House Judiciary and Oversight Committees have issued subpoenas for Trump’s tax and financial records, for former White House counsel Don McGahn to testify as to damaging statements towards Trump that he made during the Mueller investigation, and for Attorney General William Barr to both appear again and produce the full Mueller report. Trump has refused to turn over any documentation and has insisted that neither McGahn nor Barr testify.  The White House legal team challenged Congress’ subpoenas in court and already lost one round, but has appealed.

Imagine if everyday litigants in the justice system behaved this way.  One of the most difficult aspects of prosecuting cases in Baltimore City is getting witnesses to testify for fear of retaliation or, the flip side, because they lied to investigators to get someone in trouble. Civilians are punished for ignoring subpoenas and are sometimes jailed awaiting trial just to assure their participation. In a way, they are leveraged—freedom for participation. Trump would seem to have no uninterested person show up for court. Another sticky situation for defense attorneys concerns witnesses who want to recant and confide in the defense that they don’t want to appear. Still, we must advise them that the law requires them to go. Wonder how Trump would couch it to them?

Worse, the double standard on enforcement here is glaring. Regular folks get locked up, fined or forced to apologize. Their lives are disrupted and turned upside down even when they don’t have to be in court.  They don’t have the means to challenge subpoenas like Trump even if there was a procedure for that. FTAs in court used to be actual crimes in Maryland, but, thankfully, are no longer prosecuted. However, FTAs, even if explainable, are marks against you and a basis to deny bail at initial appearances in cases.  This is why we have warrant amnesty periods. Many absences can be explained. Generally though, a heavy hand controls the process for my clients.

Meanwhile, the President proclaims with pride that he will skirt the established legal framework of our country and fight the subpoena process and he goes about unblemished. Trump has already shown a disdain towards international diplomacy and national civility, so it should be no surprise that he affords no deference to the rule of law. The distinction among the types of subpoenas (one from courts, and one from Congress) is meaningless especially since Trump’s fight is now in a courtroom. So impeachment aside, contempt proceedings should commence.

It would almost be poetic if a mean, old Baltimore judge could preside and treat the President as they do the common folk. Perhaps then a lesson would be learned for all.

Todd Oppenheim is a lawyer in the felony trial division of the Baltimore City Public Defender’s office. The opinions here are his own. His Twitter is @Opp4Justice.

The post Subpoenaing the President Versus the Common Man appeared first on Baltimore Beat.

The Baltimore Police Department (BPD) is coming apart at the seams. A long list of misconduct over the years recently culminated with the federal trial and convictions of two former officers. Let’s be candid, things have gotten noticeably bad for BPD, even in the eyes of some of its staunchest proponents. Change is needed throughout the justice system to ensure that we can re-establish trust in Baltimore police. The 2015 in-custody death of Freddie Gray and subsequent protests of BPD made world-wide news. Then, the local criminal trials of six officers charged in Gray’s killing exposed the layers of protection afforded to the police when accused of misconduct and the difficulties in holding BPD accountable.

On the heels of not guilty verdicts and dismissals in the aforementioned trials, revelations of unconstitutional and outright illegal practices emerged publicly with the Department of Justice’s 2016 report outlining numerous problems within BPD. Namely a disproportionate number of unlawful stops of African-American citizens.

Not long after the DOJ report, in early 2017, federal prosecutors indicted seven members of BPD’s now defunct Gun Trace Task Force (GTTF) on egregious racketeering charges involving robbery, theft and evidence tampering while on the job.

This past summer, with the advent of body camera footage in most arrests, a Baltimore cop was “caught” (on his own camera) planting drugs, which garnered national headlines. Next, after an eighth officer was added to the GTTF case, six of the eight pled guilty at the end of 2017. As GTTF pleas were being entered, in November of 2017, a veteran cop with ties to the indicted officers, Sean Suiter, was tragically murdered while on duty. That case remains unsolved. In recent weeks, the remaining two GTTF cops who pled not guilty went to trial, and in the process exposed a network of corruption.

And there’s much more, and it goes back further, but is anyone tallying this up?

As a long time resident of Baltimore City and a city public defender for the past 14 years, I see a watershed moment. The BPD scandals aren’t surprising to anyone in criminal defense practice in Baltimore. Clients have been telling us of instances of false charges, mistreatment, abuse and violence on the part of BPD for years. However, our attempts to use such information in court are regularly shut down by judges and ignored by prosecutors.

There Are Many More Victims of GTTF: I represented a client in 2015 in a trial with the GTTF where, despite an aura of impropriety based on what my client and witnesses said, I had no solid evidence to challenge the cops on the witness stand. The case involved an alleged gun “tossing” and a mysterious injury to my client’s leg that was supposed to be a gash from a fence- except his pants weren’t ripped over the wound. It came down to our word versus theirs—and we lost. My client went to prison for what should have been 8 years. Fortunately, after the officers’ indictments, because of a motion I had on file (unrelated to the GTTF indictments) we reopened my client’s case. The State dismissed the charges. The GTTF fallout extends to thousands of other convictions from trials and guilty pleas, which now require reexamining, to say the least.

Likewise, citizen complaints filed directly with BPD have an even slimmer chance of success. Nearly all people of color and most folks who live in predominantly black neighborhoods in Baltimore are “woke” to what goes on, but nothing happens. So, with this litany of corruptible occurrences now on record instead of “mere anecdotes”, its time for major changes in policing and the justice system. More concerning than the GTTF’s officers’ actions—like stealing prescription drugs from pharmacies during the 2105 Uprising or causing car accidents and not rendering aid—is the complete lack of oversight and arguable collusion from police administration, prosecutors and courts.

The BPD Must Have Known: Years of misconduct have persisted in BPD in part because of poor management. How could they not have not known? Maybe that’s why Mayor Catherine Pugh replaced Commissioner Kevin Davis on January 19th with Deputy Commissioner Darryl DeSousa. Admittedly, Davis was a bit of a sacrificial lamb for the City’s ineptitude towards handling the high murder rate, but it was under Davis’ charge that DOJ reforms were to be taking place as the GTTF simultaneously committed their crimes. Davis also inexplicably did not immediately know that murdered Detective Suiter was connected to the GTTF trial.

The New Commissioner on Shaky Ground: Additionally, in the GTTF proceedings testimony suggested that a Davis deputy, Dean Palmere, once responded to the scene of a GTTF suspect shooting and coached the field unit in getting their stories straight. Coincidentally, that deputy retired later the same week. Also resigning upon Davis’ firing were two deputies tasked with instituting DOJ reforms. That can’t be good. So, now we have a commissioner-appointee who has a good reputation, is an internal guy, but also committed two shootings resulting in deaths during his days in patrol (for which he was “cleared”). Two of DeSousa’s first picks for high level spots have been rescinded because of questionable candidate records. On top of that, a BPD training supervisor recently said that a new class of cadets has not been properly schooled on constitutional policing, yet they are still being pushed through. This seems like an inauspicious start.

What’s Next?: DeSousa now awaits confirmation by the full City Council after breezing through the appointments committee with unanimous approval despite an impassioned, critical public comment session in the hearing. This is precisely where we need a time out.  Instead of taking the well traveled path, we should totally shift the makeup of BPD to that of a civilian led force with police managers underneath a board-like committee. Let business people and professional managers handle finances and organization while police supervisors control day to day functions. Increase salaries and roll back overtime allowance (a major part of the misconduct). The City Council should slow down and re-evaluate the same move we’ve made for years. DeSousa has a role to play in administration in some capacity, but now is the time to shift away from a commissioner led department.

Additionally, both prosecutors and courts should monitor the police. How could they have not known? Prosecutors and judges see which cops are problematic witnesses live in court and now on body camera footage too. So, when rights are violated, State’s Attorneys need to keep track and make the information available. Judges should also remember and even report violations to the police department. The smallest infractions in court may seem inconsequential, but they can lead to worse- and they can end up affecting completely innocent citizens. In addition, the State’s Attorney’s unit that both charges criminal actions of cops and protects their personnel records should be split to eliminate potential conflicts in performing both functions in one unit. Let’s not forget, the GTTF investigation was cut short because of a warning from the State’s Attorney’s Office to the cops. This is unacceptable. We need to know who tipped off the police and how they did it.

Even if our mayor concedes that she didn’t really pay attention to the GTTF trial, everyone should look again. We need to delineate the dueling problems of a high murder rate plaguing Baltimore and bad policing. They are related, but separate issues. BPD should not be held solely responsible for the increased violence. For that we can turn to unaddressed socio-economic conditions embedded in our communities. Still, we need to be able depend on the police to credibly respond to crime and investigate cases. We need to be able to trust BPD. And for that we need top to bottom reform.

Todd Oppenheim is a lawyer in the Baltimore City Public Defender’s Office’s Felony Trial division. Email- him at toppenheim@opd.state.md.us; follow him on Twitter @Opp4Justice.

The post Public defender Todd Oppenheim on how deeper issues arise from the Baltimore Police Gun Trace Task Force trial appeared first on Baltimore Beat.

Inevitably, during the holidays, I will run into family, friends or meet a new acquaintance at a gathering and be faced with a question often asked of me. The inquiry generally goes, “How do you defend them?” You see, I am a public defender of over 13 years in Baltimore City. Public defense has been my occupation since law school. To me, it’s one of only a few truly altruistic endeavors in the legal profession. So, when my job comes up in conversation, even with people that know what I do, something of the, “How do you…?” nature tends to pop up. Generally, after indulging the “question”, I can twist the inquisitor’s logic around.

My clients, them, are indigent people charged with criminal offenses who are either unemployed or qualify for my services under federal poverty guidelines (which, as income inequality grows, often cut out people who still cannot afford private lawyers). I don’t sign my clients up. I either meet them in jail on the random days that I do bail reviews (shortly after arrest) or I’m blindly assigned their cases through a supervisor at my office. Over three quarters of my clients are African-American and most are young men in their early twenties. I’ve yet to represent a truly evil person without some sort of addiction, mental health problem, or trauma in their life. Now, those things don’t necessarily offer legal defenses to charges, but they are still relevant explanations and mitigating circumstances providing windows in to the minds of the accused as well as larger societal problems. Some of my clients are innocent and most are overcharged.

My clients are, first and foremost, human beings. No surprise, but the public too often forgets this because of skin color and/or socio-economic conditions. We warehouse them in jails in wretched conditions and dress them up in bright yellow or pink jumpsuits before they’ve even been convicted. We think the worst of them simply because of the nature of their cases or their records (which many times have bogus charges on it or reflect where they live). Sometimes my clients don’t understand that I’m schooled the same as private attorneys. However, once they see that I have their interests in mind, and that I’m willing to stand up for them, they’re content. Considering the effects of being in jail or stung with a serious case, my clients are mostly pleasant to me. They simply want someone to fight for them whether it’s in a trial or just ensuring the process is fair (as possible).

“How do you…?” comes from a superficial view of the justice system and who we are as a society. Everyone wants a fair court system, but most folks don’t understand how warped and potentially racist their perception is on the subject. Consider that my clients are policed more heavily than any other population in the country simply because of who they are and where they live. Yet, recently, my home exterminator respectfully posed the “question” to me, but then went on to reveal his own history of run-ins with the law, a 30 day jail stint, and his son’s current long term incarceration. I thought he, of all people, should understand. But he is white and a County resident. Furthering the double standard, friends who have expressed doubt as to what I do, have come to me for private attorney recommendations when they or people they know get in trouble with the law. Also, please don’t question my job and root for the Ravens and expect to have moral consistency. Remember, the Ravens’ history of players getting arrested is not too good. Truth is, we are all one bad decision away from getting locked up- well, save for the caveats that black people may only need a half of a decision and rich and connected folks might get two decisions.

Since the “question” is put to me so frequently, I propose that it be asked where it is more appropriate. Lawyers for Big Pharma who consistently defend price fixing of essential medicines or stick up for the pushing of pain pills (which seems worse than any street dealer’s actions) deserve to be asked. Gun manufacturers’ attorneys probably don’t get inquiries about their clients’ culpabilities towards the waves of civilian shooting deaths. Meanwhile, I get called out for arguing for reasonable sentences for gun offenses. Insurance companies’ lawyers. Wall Street firms’ counsel. Slumlords’ representatives. Attorneys for pedophile priests. Harvey Weinstein’s legal team. Think any of them get asked, “How do you defend them?” The entire White House has lawyer-ed up for goodness sake. Three people close to the president have been indicted thus far (one pled guilty already). Jared Kushner, the President’s son-in-law, who’s father is a convicted felon, is also under investigation. The aforementioned list deserves the presumption of innocence, but let’s inject some perspective into how silly the “question” to me becomes in the face of this hypocrisy.

Still, how do I represent them? A society should be measured by how we treat the most helpless among us, my clients. They are human, people, no worse than us and no more prone to err than us. They are us. Think of it that way.

Todd Oppenheim is a lawyer in the Baltimore City Public Defender’s Office’s Felony Trial division. Email- him at toppenheim@opd.state.md.us; follow him on Twitter @Opp4Justice.

The post They Are Us: Public defender Todd Oppenheim on why his clients matter appeared first on Baltimore Beat.