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No magic bullet for gun-crime prosecutions

‘Maryland Exile’ may help, but most gun crimes will stay in state court

The ‘Automatic5’ program was meant to take a bite out of gun crime, but some prosecutors and defense attorneys say the 2000 law may have actually made the situation worse.

When former Gov. Parris N. Glendening signed the Responsible Gun Safety Act into law in 2000 — with President William J. Clinton III looking on — the legislation was touted as the big kahunah of gun laws.

“Get caught with a gun, say goodbye for 5 years,” the public relations campaign for “Automatic5” promised. Another ad showed a smiling woman and a scowling con behind bars, and asked, “Spend the next five years with her or him?”

Among other things, the 2000 law put in place a mandatory five-year sentence for felons found to be in possession of regulated firearms. And the class of potential defendants was expanded to include almost all felons, even those with only one prior drug conviction.

However, prosecutors and defense attorneys alike say the 2000 law may have actually made the situation worse by clogging the court system with cases in which the defendant insists on a trial that, in Baltimore at least, usually results in acquittal.

“When you start doing the mandatory sentences for just carrying a gun, the whole purpose being to scare the public enough that nobody will carry a gun, the problem is there are even more people carrying guns now than ever before,” said defense attorney Charles J. Ware of Columbia. “So it’s just not working.”

‘Tied everyone’s hands’

The number of felon-in possession cases charged by Baltimore’s state’s attorney’s office has gone up sharply — from 172 in 2001 to 316 last year — yet statistics from the state’s attorney’s office indicate that out of 224 felon-in-possession cases closed last year, just 73 resulted in a finding of guilt.

Prosecutors say the biggest problem with the 2000 act is that the mandatory sentence has discouraged offenders to plead guilty.

“The legislature, in imposing that as the only possible sentence, really sort of tied everyone’s hands and almost precluded plea negotiations,” said Baltimore County Deputy State’s Attorney Stephen Bailey. And once the defendant opts for a trial — as most did in Baltimore City last year — the mandatory minimum may have a second, less obvious effect.

“Judges hate mandatories,” said Tonya M. Lapolla, an assistant state’s attorney in Baltimore.

That may be one reason why out of 28 gun prosecutions tried before a judge last year, only three, or about 11 percent, resulted in a guilty verdict.

The odds were also slightly in the defendant’s favor in jury trials, which resulted in a 44 percent conviction rate.

Following the passage of the 2000 gun act, prosecutors and judges had to adjust to the way felon-in-possession cases were treated under the law, explained Baltimore gun prosecutor William F. Cecil.

Prior to 2000, the law classified a felon-in-possession as a misdemeanor crime punishable by up to five years in prison, a $10,000 fine or both, Cecil said.

Because of the small penalty, felon-in-possession cases “weren’t tried, they weren’t charged,” he said.

The misdemeanor penalty “didn’t really have any bite to it,” Cecil added. “It meant nothing.”

As more cases have gone to trial, prosecutors have faced “tremendous issues with evidence,” added Margaret T. Burns, a spokeswoman for Baltimore City State’s Attorney Patricia C. Jessamy.

In 2005, the state’s attorney’s office dismissed 51 felon-in-possession cases (out of the total 224 closed) due to legal insufficiencies.

In addition, juries often feel empathy for defendants, noted Ware, the defense attorney. After all, Baltimore is a jurisdiction that had to run a public relations campaign reminding citizens to “Believe” and “convict the guilty.”

“Increasingly, jurors are having some of the same experiences as the defendants and certainly in jurisdictions like Baltimore City that have a big gun problem, I think there are a number of so-called ‘law abiding citizens’ who carry guns,” Ware said. “Why? Because the bad guys carry guns.”

From legislature to USAO

In light of these problems, Jessamy and her colleagues throughout the state backed Gov. Robert L. Ehrlich Jr.’s “Project Exile” in 2003 and 2004 — an initiative that, in part, sought to modify the 2000 act and move gun crimes to federal court.

Prosecutors asked legislators to change the felon-in-possession penalty from a five-year mandatory sentence to a range of five to 20 years.

In addition, the 2000 act made it illegal for felons to carry “regulated firearms,” a category that excludes shotguns and rifles. The governor’s proposal would have extended the five-year sentence to felons who possess any firearm.

According to a spokesman for Ehrlich, that version of “Project Exile” failed to garner support in the General Assembly largely because of opposition from the influential chairman of the Senate Judicial Proceedings Committee, Brian E. Frosh, D-Montgomery.

But Exile resurfaced recently in a version that does not depend on General Assembly approval. In January, U.S. Attorney Rod J. Rosenstein, Jessamy, Baltimore City Police Commissioner Leonard Hamm and others announced plans to transfer more state felon-in-possession cases to federal court as part of a “Maryland Exile” initiative, which so far has launched in Baltimore and Prince George’s County.

Maryland is again scheduled to be hit with a gun-related public relations campaign. (This time the slogan is “Gun Crime = Jail Time.”)

In federal court, Rosenstein said, offenders will face higher chances of being convicted (in fact about 100 percent chance of being convicted under the federal DISARM program, the Baltimore City Police Department calculates) and potentially longer sentences, to be served in federal prisons that may be far from their homes — all of which should motivate them to plead guilty in the state system.

State prosecutors have had their share of run-ins with their federal counterparts, most recently objecting to the Baltimore mayor’s plan to fund two federal gun prosecutors.

But everyone from the state’s attorney to Mayor Martin J. O’Malley has been on board with Exile.

Douglas Ludwig, chief of the Firearms Investigative Violence Enforcement Division (or FIVE) in Jessamy’s office, said his prosecutors have in the past wasted months working on a case only to be told that the U.S. Attorney’s office has decided to transfer it federally.

Under the new initiative, he said, federal prosecutors have agreed to “give us a decision before our case even gets out of the arraignment court.”

As soon as the decision is made, defendants are provided with a letter, Ludwig said, warning them that a refusal to take the state’s plea offer will result in a case transfer to federal court.

“We’ve resolved at least four or five cases where they took the state plea as opposed to going to federal court, because federal prosecutors gave us that letter,” Ludwig said. “The letter seems to be having the desired effect.”

Mostly in state court

So, has Baltimore finally found a solution to its gun problem?

Not necessarily, Burns said. For one thing, the majority of felon-in-possession cases will remain in the state system.

“Most of the cases that we have are one-time convicted felons,” she explained. For them, the five-year mandatory sentence is actually higher than its federal counterpart of three years. (However, Ludwig noted, a state sentence of five years can actually mean as little as three years spent behind bars.)

Even Rosenstein’s annual 2005 report states that “the vast majority of Maryland Exile cases will continue to be prosecuted by the state’s attorney’s offices.”

In an interview, Rosenstein said his office will take “more” gun cases than it did before — last year, prior to Maryland Exile, 41 state felon-in-possession cases ended up being indicted federally, the state’s attorney’s office revealed — but he did not specify what he expects the increase to be. The U.S. Attorney’s Office, he said, has been given funding to hire four new prosecutors, yet they will not focus specifically on gun cases.

Also, federal judges may not be as enthusiastic about Maryland Exile as federal prosecutors.

“These judges don’t want these inner-city thug-like cases over there,” Brown, the defense lawyer, said.

According to Ware, federal prosecutors have traditionally focused on big-time crime bosses — not run-of-the-mill criminals. If the U.S. Attorney’s Office takes on a large number of state gun cases, efforts to prosecute big cases may be significantly undercut, Ware said.

“I hear of other major players out there that the feds can’t seem to get a grip on and I think they can’t seem to get a grip on them because they are mired down with these small-time players,” he said.

In a telephone interview last week, Rosenstein disputed Ware’s contention. A large part of Maryland Exile, he stressed, is a plan to go after violent gangs.

Indeed, Rosenstein’s office has recently secured $2 million in federal funding for its anti-gang effort.

“It’s certainly true that anything we focus on means we are going to be focusing less on something else,” he said. “But we happen to believe that violent crime in Baltimore City and Prince George’s County is one of the top priorities for all law enforcement.”

Reprinted with permission.