You are on page 1of 29

AN ACT concerning …

Authorizing State’s Motions to Vacate Unjust and Wrongful Convictions

FOR the purpose of authorizing the State’s Attorney …

BY adding to,
Article – Criminal Procedure
Section 8-303
Annotated Code of Maryland
(2018 Replacement Volume)

SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,


That the Laws of Maryland read as follows:

Article – Criminal Procedure

8-303

(a). IN GENERAL. AT ANY TIME AFTER THE ENTRY OF JUDGMENT, THE COURT IN
WHICH IT WAS ENTERED, UPON MOTION OF THE STATE, MAY VACATE THE
JUDGMENT UPON THE GROUND THAT:

(1) THE PERSON WAS CONVICTED OF A CRIME AND THE ACT ON WHICH THE
CONVICTION WAS BASED IS NO LONGER A CRIME;

(2) THE PERSON WAS CONVICTED OF POSSESSION OF MARIJUANA UNDER


SECTION 5-601 OF THE CRIMINAL LAW ARTICLE;

(3) THE PERSON WAS CONVICTED OF DRUG PARAPHERNALIA UNDER SECTION


5-619 OF THE CRIMINAL LAW ARTICLE;1

1 A “work-around” the ‘unit rule.’


(4) NEWLY DISCOVERED EVIDENCE, WHICH COUND NOT HAVE BEEN
DISCOVERED BY DUE DILIGENCE IN TIME TO MOVE FOR A NEW TRIAL
PURSUANT TO MARYLAND RULE 4-331(c), THAT CREATES A SUBSTANTIAL
OR SIGNIFICANT POSSIBILITY THAT THE TRIER OF FACT WOULD HAVE
BEEN AFFECTED, AS THAT STANDARD HAS BEEN JUDICIALLY
DETERMINED;2

(5) ANY OTHER REASON JUSTIFYING RELEASE FROM THE JUDGMENT, IN THE
INTEREST OF FAIRNESS AND JUSTICE.

(b). REQUIREMENTS. – A MOTION FILED UNDER THIS SECTION SHALL:

(1) BE IN WRITING;

(2) STATE IN DETAIL THE GROUNDS UPON WHICH THE MOTION IS BASED;

(3) WHERE APPLICABLE, DESCRIBE THE NEWLY DISCOVERED EVIDENCE;

(4) CONTAIN OR BE ACCOMPANIED BY A REQUEST FOR A HEARING IF A HEARING


IS SOUGHT;

(c) NOTICE AND RESPONSE TO FILING. --

(1) THE STATE SHALL NOTIFY THE PERSON OF THE FILING OF THE MOTION UNDER
THIS SECTION.

(2) A RESPONSE TO THE MOTION MAY BE FILED WITHIN THIRTY DAYS AFTER
NOTICE OF ITS FILING, OR WITHIN SUCH FURTHER TIME AS THE COURT MAY
ORDER, FOR GOOD CAUSE SHOWN.

(d). NOTICE TO VICTIM OR VICTIM’S REPRESENTATIVE. --

(1) BEFORE A HEARING IS HELD ON A MOTION FILED UNDER THIS SECTION, THE
VICTIM OR VICTIM’S REPRESENTATIVE SHALL BE NOTIFIED OF THE HEARING AS
PROVIDED UNDER § 11-104 OR 11-503 OF THIS ARTICLE.

2 Yorke v. State, 315 Md. 578, 588, 556 A.2d 230, 235 (1989). #4 intended to incorporate GTTF
situations.
(2) A VICTIM OR VICTIM’S REPRESENTATIVE HAS THE RIGHT TO ATTEND A
HEARING ON A MOTION FILED UNDER THIS SECTION AS PROVIDED UNDER §
11-102 OF THIS ARTICLE.

(e). HEARING.--

(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, THE COURT


SHALL HOLD A HEARING ON A MOTION FILED UNDER THIS SECTION IF THE
MOTION SATISFIES THE REQUIREMENTS OF SUBSECTION (b) OF THIS SECTION
AND A HEARING WAS REQUESTED.

(2) THE COURT MAY DISMISS A MOTION WITHOUT A HEARING IF THE COURT
FINDS THAT THE MOTION FAILS TO ASSERT GROUNDS ON WHICH RELIEF MAY BE
GRANTED.

(f). RULING. --

(1) IN RULING ON A MOTION FILED UNDER THIS SECTION, THE COURT MAY
VACATE THE CONVICTION AND DISCHARGE THE PERSON.

(2) THE COURT SHALL STATE THE REASONS FOR ITS RULING ON THE RECORD.

(f). BURDEN OF PROOF. --

(1) THE STATE IN A PROCEEDING UNDER THIS SECTION HAS THE BURDEN OF
PROOF.

(g). APPEAL. --

(1) AN APPEAL MAY BE TAKEN BY EITHER PARTY FROM AN ORDER ENTERED


UNDER THIS SECTION.
IN THE DISTRICT COURT OF MARYLAND FOR BALTIMORE CITY

STATE OF MARYLAND *

ex rel. NAMED DEFENDANTS *


CONVICTED OF POSSESSION
OF MARIJUANA AND LISTED * Civil CASE NO. ___________
IN ATTACHED EXHIBIT A

(Relating to all criminal actions


referenced in attached Exhibit A)
*
V.
*
STATE OF MARYLAND

* * * * * * * * * * *

STATE’S PETITION FOR WRIT OF ERROR CORAM NOBIS

To the Honorable Barbara Baer Waxman, Administrative Judge of the District Court of Maryland
for Baltimore City:

Now comes Marilyn J. Mosby, State’s Attorney for Baltimore City, Antonio Gioia, Chief

Counsel to the State’s Attorney for Baltimore City, and Michael Schatzow, Chief Deputy State’s

Attorney for Baltimore City, and move this Honorable Court to pass an order1 vacating the

convictions for possession of marijuana in the 3,778 criminal actions listed in the attached

Exhibit A2 and in support thereof state the following.

1 A petition for a writ of coram nobis is a civil proceeding. Ruby v. State, 353 Md. 100, 111
(1999). Given the number of criminal cases to which the petition relates, filing of the petition in
the criminal actions is not practicable. Maryland Rule 15-1202(a).

2 Exhibit A includes all District Court of Maryland for Baltimore City cases identified to date by
the Baltimore City State’s Attorney’s Office from 2011 through the present where a defendant
was convicted of possession of marijuana.
!1
Introduction

The State herein seeks coram nobis relief, a concededly extraordinary remedy, Duncan v.

State, 236 Md. App. 510, 526, 182 A.3d 268, 277 (2018), to right an extraordinary wrong, the

disparate effect on African-Americans in Baltimore City from the arrest, prosecution, and

conviction for possession of marijuana. The sordid history of marijuana prohibition lies in ethnic

and racial bigotry. It has been observed, “Marijuana gives rise to insanity -- not in its users but in

the policies directed against it.”3 The genesis of this insanity can be traced to the early part of the

twentieth century, which brought forth a large influx of Mexicans into America seeking to escape

the violence of the Revolution of 1910. Many of these immigrants, as a part of their culture,

smoked cannabis on a recreational basis, which they referred to as “marihuana.” Although

cannabis was used by Americans at this time as a purported tonic for a variety of ailments, it

appears that recreational use was limited.

Marijuana, on the other hand, became the basis of a xenophobic campaign of

government-sponsored fearmongering against the new immigrants. Dire warnings were

published of the "Marijuana Menace" and of crimes committed by Mexican immigrants while

ostensibly under the influence of it. By 1931, twenty-nine states had passed laws outlawing the

possession of marijuana.4 The 1933 repeal of alcohol prohibition did nothing to slow the train of

3 Eric Schlosser, “More Reefer Madness”, The Atlantic, April 1997 issue.

4 See www.pbs.org/wgbh/pages/frontline/shows/dope/etc/cron.html.

!2
marijuana criminalization. Driving that train was one Harry Anslinger, commissioner of the then-

nascent National Bureau of Narcotics. Anslinger described marijuana users as follows, “most are

Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from

marijuana use.” “[T]he primary reason to outlaw marijuana is its effect on the degenerate races.” 5

In 1937, largely in response to testimony provided by Commissioner Anslinger, Congress

passed the Marijuana Tax Act, effectively outlawing marijuana by imposing heavy taxes on the

sale, possession, and transportation of cannabis. The final descent into legislative madness

occurred in 1970 when the United States Congress passed the Controlled Substances Act,6 which

repealed the Marijuana Tax Act, but classified cannabis in the same category as heroin, as a

Schedule 1 drug. Maryland thereafter followed suit and maintains this schedule I classification to

this very day.7

Coram nobis relief is warranted in these cases

The Court of Appeals in Skok v. State, 361 Md. 52, 760 A.2d 647 (2000) identified five

conditions to entitlement to coram nobis relief.

(1) "The grounds for challenging the criminal conviction must be of a constitutional,
jurisdictional or fundamental character." 361 Md. at 78.

(2) "[A] presumption of regularity attaches to the criminal case, and the burden of proof
is on the coram nobis petitioner." Id.

5Common Sense for Drug Policy, “The Devil Weed and Harry Anslinger”, www.csdp.org/
publicservice/anslinger.htm.
6 Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

7 See §5-402(d)(23) of the Criminal Law Article of the Maryland Code.

!3
(3) "The coram nobis petitioner must be suffering or facing significant collateral
consequences from the conviction." 361 Md. at 79.

(4) "Basic principles of waiver are applicable to issues raised in coram nobis
proceedings." Id.8

(5) "One is not entitled to challenge a criminal conviction by a coram nobis proceeding
if another statutory or common law remedy is then available." 361 Md. at 80.9

The grounds for challenging the criminal convictions


are of a constitutional, jurisdictional or fundamental character

It cannot be gainsaid that equal protection of the laws, as secured by the Fourteenth

Amendment of the United States Constitution, is a fundamental right. “[N]o state shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV. §1. (Emphasis supplied).

The United States Supreme Court has noted that “the history of the narcotics legislation

in this country ’”reveals the determination of Congress to turn the screw of the criminal

machinery -- detection, prosecution and punishment -- tighter and tighter.’" Albernaz v. United

States, 450 U.S. 333, 343, 101 S. Ct. 1137, 1144 (1981) quoting from Gore v. United States, 357

U.S., [386] at 390 [1958]). Recent history has incontrovertibly established that the “turning of

the screw” during the “war on drugs” has been applied disproportionately tighter against the

African-American community.

8 The State avers that the claims presented herein have not been previously waived.
9 The State further avers that all persons named in this action have no other statutory or common
law remedy available in which to challenge their respective conviction.
!4
In 1986, the United States Congress passed the Anti-Drug Abuse Act of 1986, which

created, inter alia, a mandatory minimum sentence of five years for trafficking in five (5) grams

of crack cocaine and the identical mandatory minimum sentence for trafficking in five hundred

(500) grams of powdered cocaine. In 2010, Congress passed the Fair Sentencing Act, which

reduced the crack/powder cocaine sentencing disparity from 100:1 to 18:1. 10 This sentencing

disparity disproportionately impacted African-Americans; under the 100:1 regime, African

Americans served roughly the same prison time for non-violent drug offenses as whites did for

violent offenses.11

So too has enforcement of laws proscribing possession of marijuana disproportionately

impacted the African-American community. From 2001-2010, African-Americans in Maryland

were almost three times more likely than Whites to be arrested for marijuana possession. For the

same period, African-Americans in Baltimore City were 5.6 times more likely than Whites to be

arrested for marijuana possession.12 Yet research indicates that marijuana usage is roughly the

same across all races of people.13

Marijuana and the War on Drugs

Nationwide the ACLU found:

10 In Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321 (2012), the United States Supreme
Court applied the Fair Sentencing Act's more lenient mandatory minimum provisions to pre-Act
offenders who were not sentenced after the Act took effect.

11 See www.aclu.org/issues/criminal-law-reform/drug-law.../fair-sentencing-act.

12 See www.aclu-md.org/sites/default/files/legacy/files/aclu-thewaronmarijuana-mdpage.pdf.
13 See www.aclu-md.org/en/press-releases/aclu-report-racial-disparities-marijuana-arrests.
!5
• During 2001 through 2010, there were over 8 million marijuana arrests in the
United States, 88% of which were for possession.
• Marijuana arrests increased between 2001 and 2010 and accounted for over half
(52%) of all drug arrests in the United States,
• Marijuana possession arrests accounted for nearly half (46%) of all drug arrests.
• A black person was 3.73 times more likely to be arrested for marijuana possession
than a white person, even though Blacks and Whites use marijuana at similar
rates.
• Racial disparities in marijuana possession arrests exist in all regions of the
country14

Even after 2010, when many states across the U.S. now have some form of a law legalizing

marijuana for personal use, the Drug Policy Alliance found that racial disparities continue to

exist despite reform:

• In Colorado, marijuana arrests for white people decreased by 51%, but only decreased by
33% for Latino people and 25% for black people between 2012 and 2014.
• The post-legalization arrest rate for black people in Washington is double the arrest rate
for other races and ethnicities.
• A black person in Washington, D.C. is 11 times more likely than a white person to be
arrested for public consumption of marijuana.15

Maryland and marijuana

Medical Marijuana became available in Maryland in early 2018. Effective October 1,

2014 a new law made possession of less than 10 grams of marijuana a civil infraction. In 2010,

before decriminalization of possession of small amounts of marijuana, the rate of arrest for

marijuana possession in Maryland was the fourth highest in the nation. Police arrested one out of

every 250 people for marijuana possession.16 Black individuals comprised only 30% of the

14 https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf.
15 http://www.drugpolicy.org/legalization-status-report.
16 https://www.aclu-md.org/en/press-releases/aclu-report-racial-disparities-marijuana-arrests.
!6
state's population in 2010, but 58% of arrests for marijuana possession. Baltimore City had the

largest rate of disparity of marijuana arrests with black individuals being 5.6 times more likely to

be arrested for marijuana possession, according to the 2010 report. 17 In Baltimore City, racial

disparities continue to exist after the decriminalization of small amounts of marijuana. BPD

records reflect that in 2015, BPD issued 44 citations for possession of marijuana (after

decriminalizing 10 grams or less of marijuana); of those who were cited 39 were African

American (89%). In 2016, BPD issued 199 such citations; 187 were issued to African Americans

(94%). In 2017, BPD issued 431 citations; of those marijuana possession citations, 410 were

issued to African Americans (95%). The plurality of these 2017 citations by far were issued in

the Western police district (42%).

In light of this clear pattern of a racially disproportionate impact of enforcement of drug

laws, the grounds in this proceeding for challenging the criminal convictions are of a

constitutional character.

The named individuals are suffering or facing


significant collateral consequences from the convictions

In Skok, supra, the Court of Appeals identified both deportation/removal and enhanced

sentencing under recidivist statutes as sufficient bases for a reviewing court to find that a coram

nobis petitioner was subject to “significant collateral consequences” from a challenged

conviction. The State maintains that Skok should not be read as holding that deportation/removal

and enhanced sentencing are the exclusive bases for finding that “significant collateral

consequences” exist such as to warrant coram nobis relief.

17 https://www.aclu-md.org/en/press-releases/aclu-report-racial-disparities-marijuana-arrests.
!7
This fact could not have been made more clear by the Court of Special Appeals in State v.

Hicks, 139 Md. App. 1, 9, 773 A.2d 1056, 1061 (2001), wherein the Court stated,

Although Skok assigned as reasons for its decision the intervening changes in
immigration law, and recidivist statutes, it did not carve out a special remedy
limited only to those persons subject to a recidivist statute or deportation
proceeding.

0-0-0

Nowhere in the Skok opinion does the Court of Appeals suggest that a court
considering a coram nobis petition must look to the particular circumstances of
the petitioner to see whether a new recidivist statute or change in immigration law
applies before considering his petition. Id., 139 Md. App. at 10, 773 A.2d at 1061.

Although this is a matter of first impression in Maryland, “reputational harm” from a

conviction has been found by courts to be a “significant collateral consequence” for purposes of

seeking coram nobis relief. In United States v. Mandel, 862 F.2d 1067, 1075, n.12 (4th Cir.

1988), the United States Court of Appeals for the Fourth Circuit, in affirming the granting of

coram nobis relief by the United States District Court for the District of Maryland to former

Maryland Governor Marvin Mandel and five co-defendants, observed,

Conviction of a felony imposes a status upon a person which not only makes him
vulnerable to future sanctions through new civil disability statutes, but which also
seriously affects his reputation and economic opportunities.” Parker v. Ellis, 362
U.S. 574, 80 S. Ct. 909 (1960) (Chief Justice Warren dissenting). (Emphasis
supplied).

“Reputational harm” for purposes of coram nobis relief is not limited to felony offenses.

The United States Court of Appeals for the Ninth Circuit in Hirabayashi v. United States, 828 F.

2d 591 (9th Cir. 1987) acknowledged this important principle.

We have repeatedly reaffirmed the presumption that collateral consequences flow


from any criminal conviction. See, e.g., Byrnes, 408 F.2d at 601. Id., 828 F.2d at
606.

!8
0-0-0

No court to our knowledge has ever held that misdemeanor convictions cannot
carry collateral legal consequences. Any judgment of misconduct has
consequences for which one may be legally or professionally accountable. See
Miller v. Washington State Bar Ass'n, 679 F.2d 1313, 1318 (9th Cir. 1982) (letter
of admonition in attorney's permanent record for which he is professionally
accountable constitutes sufficient adverse consequence for Article III)). Id. 828 F.
2d at 606-07.

In addition to reputational harm, research has identified an array of other 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. See Wayne A. Logan, Informal Collateral Consequences, 88

Wash. L. Rev. 1103 (2013).

The State avers that the individuals named in this proceeding are indeed suffering

“significant collateral consequences” from their challenged conviction for purposes of coram

nobis relief. Furthermore, these individuals were neither informed nor aware on the day that they

entered their respective pleas of these collateral consequences. Judges did not advise defendants

of the collateral consequences of a guilty plea as they were not required to so. Maryland Rule

4-242(c), both in its current and past iterations has required that a defendant be advised, inter

alia, of the “consequences of a plea.” This requirement, however, extends only to an advisement

of the direct, as contrasted with, the collateral consequences of the plea. Yoswick v. State, 347

Md. 228, 240, 700 A.2d 251, 257 (1997). “Direct consequences” has been held to mean the

!9
maximum sentence “on the table” as a result of pleading guilty, see Bryant v. State, 47 Md. App.

551, 424 A.2d 1115 (1981) or advisement of a plea-bargained sentence. State v. King, 71 Md.

App. 229, 524 A.2d 807 (1987).

Vaughn v. State, 232 Md. App. 421, 429, 158 A.3d 1060, 1065 (2017), where a known

specific collateral consequence was held insufficient to justify coram nobis relief, is no bar to the

relief sought here. Vaughn, who pled guilty to a charge of third-degree sex offense, was informed

by the court of the collateral consequence of his plea, sex offender registration, when he pled

guilty. Vaughn is also distinguishable where, as here, the collateral consequences have increased

in both severity and unfairness, in light of the continued disparate enforcement, well-documented

by research, and the subsequent legalization or decriminalization of marijuana in various

quantities and circumstances.

There is no reasonable basis to charge the individuals named in this proceeding with

knowledge, at the time of their pleas, of the draconian significant collateral consequences that

ensued. We are not dealing here with individuals who are challenging malum in se offenses such

that it might be objectively reasonable to saddle them with knowledge of significant collateral

consequences of their convictions. Possession of marijuana is a malum prohibitum offense, the

conduct of which is patently innocuous. Finally, the collateral consequences are in fact, very real,

ongoing, and not merely theoretical. See Graves v. State, 215 Md. App. 339, 353, 81 A.3d 516,

524 (2013).

Although the State recognizes that this Honorable Court must conduct its own review of

the arguments presented herein, the State’s position, tantamount to a confession of error, is

entitled to “great weight” by this Honorable Court. See Sibron v. New York, 392 U.S. 40, 58, 88

!10
S. Ct. 1889, 1900 (1968). See also Korematsu v. United States, 584 F. Supp. 1406, 1413 (N.D.

Cal. 1984)(Where that confession of error is made by the official having full authority for

prosecution on behalf of the government it is entitled to even greater deference, citing Sibron,

supra.)

The Court of Appeals in Skok justified its recognition of an “expanded scope” of coram

nobis review on the basis of “contemporary conditions and public policy.” Id., 361 Md. at 77,

760 A.2d at 660 (2000). Contemporary attitudes and public policy toward marijuana have

changed dramatically in the past few years. Marijuana is now legalized for recreational and

medical purposes in Washington, D.C. and ten states. “Medical marijuana” laws now exist in an

additional twenty-three states, including Maryland. 18 Only seventeen states still criminalize

marijuana possession for all purposes. Contemporary conditions and public policy toward the

recreational use of marijuana, the grossly disproportionate impact on the African-American

community of enforcement of possession of marijuana laws as well as the ongoing significant

collateral consequences flowing from same strongly militate in favor of granting coram nobis

relief in these case.

Conclusion

“[E]xtraordinary instances require extraordinary relief ….” Korematsu, 584 F. Supp. at

1413. The writ of error coram nobis is warranted “under circumstances compelling such action to

18 The complete irrationality of maintaining marijuana as a schedule 1 drug, which by definition


is one that has, inter alia, “no accepted medical use in the United States for the substance”, see §
5-402(h)(2)(i)(2) of the Criminal Law Article, is evident by the fact that there are currently in
excess of 47,000 patients enrolled in the State’s Medical Marijuana program. See

!11
achieve justice.” United States v. Morgan, 346 U.S. 502, 511, 74 S. Ct. 247, 252 (1954). Justice

can only be served by the granting of coram nobis relief to these individuals.

Respectfully submitted,

Marilyn J. Mosby
State’s Attorney for Baltimore City

Antonio Gioia Michael Schatzow


Chief Counsel Chief Deputy State’s Attorney
Baltimore City State’s Attorney’s Office Baltimore City State’s Attorney’s Office
120 E. Baltimore Street, 9th floor 120 E. Baltimore Street, 9th floor
Baltimore, Maryland 21202 Baltimore, Maryland 21202
(443) 984-6222 (443) 984-6011
tgioia@stattorney.org mschatzow@stattorney.org

Certificate of Service

I HEREBY CERTIFY that on this _____ day of January, 2019, a copy of the State’s foregoing
Petition for Coram Nobis was mailed, first-class, postage prepaid to:

Kirsten Gettys Downs, Esq.


District Public Defender-Baltimore City
Office of the Public Defender
201 St. Paul Place
Baltimore, Maryland 21202

Margaret Mead, Esq., on behalf of Baltimore City private defense bar


Mead, Flynn & Gray

!12
1 North Charles St.
Baltimore, Md. 21201-3751

Andrew V. Jezic, Esq.


President, Maryland Criminal Defense Attorneys’ Association
9 Newport Drive
Suite 900
Forest Hill, Md. 21050

_____________________________________
Michael Schatzow
Chief Deputy State’s Attorney for Baltimore City
120 East Baltimore Street, 9th Floor
Baltimore, MD 21202
(443) 984-6000
MSchatzow@stattorney.org

!13
IN THE CIRCUIT COURT FOR BALTIMORE CITY

STATE OF MARYLAND *

ex rel. NAMED DEFENDANTS *


CONVICTED OF POSSESSION
OF MARIJUANA, ATTEMPTED *
POSSESSION OF MARIJUANA
OR CONSPIRACY TO POSSESS * Civil CASE NO. ___________
MARIJUANA, AND LISTED
IN ATTACHED EXHIBIT A * (Relating to all criminal actions
referenced in Attachment A)
V. *

STATE OF MARYLAND *

* * * * * * * * * * *

STATE’S PETITION FOR WRIT OF ERROR CORAM NOBIS

To the Honorable Michel Pierson, Administrative Judge of the Circuit Court for Baltimore City:

Now comes Marilyn J. Mosby, State’s Attorney for Baltimore City, Antonio Gioia, Chief

Counsel to the State’s Attorney for Baltimore City, and Michael Schatzow, Chief Deputy State’s

Attorney for Baltimore City, and move this Honorable Court to pass an order1 vacating the

convictions for possession of marijuana in the 1,050 criminal actions listed in the attached

Exhibit A2 and in support thereof state the following.

1 A petition for a writ of coram nobis is a civil proceeding. Ruby v. State, 353 Md. 100, 111
(1999). Given the number of criminal cases to which the petition relates, filing of the petition in
the criminal actions is not practicable. Maryland Rule 15-1202(a).

2Exhibit A includes all Circuit Court for Baltimore City cases identified to date by the Baltimore
City State’s Attorney’s Office from 2000 through the present where a defendant was convicted of
possession of marijuana. It also includes 19 cases where a defendant was convicted of attempted
possession of marijuana, and 12 cases where a defendant was convicted of conspiracy to possess
marijuana.
!1
Introduction

The State herein seeks coram nobis relief, a concededly extraordinary remedy, Duncan v.

State, 236 Md. App. 510, 526, 182 A.3d 268, 277 (2018), to right an extraordinary wrong, the

disparate effect on African-Americans in Baltimore City from the arrest, prosecution, and

conviction for possession of marijuana. The sordid history of marijuana prohibition lies in ethnic

and racial bigotry. It has been observed, “Marijuana gives rise to insanity -- not in its users but in

the policies directed against it.”3 The genesis of this insanity can be traced to the early part of the

twentieth century, which brought forth a large influx of Mexicans into America seeking to escape

the violence of the Revolution of 1910. Many of these immigrants, as a part of their culture,

smoked cannabis on a recreational basis, which they referred to as “marihuana.” Although

cannabis was used by Americans at this time as a purported tonic for a variety of ailments, it

appears that recreational use was limited.

Marijuana, on the other hand, became the basis of a xenophobic campaign of

government-sponsored fearmongering against the new immigrants. Dire warnings were

published of the "Marijuana Menace" and of crimes committed by Mexican immigrants while

ostensibly under the influence of it. By 1931, twenty-nine states had passed laws outlawing the

possession of marijuana.4 The 1933 repeal of alcohol prohibition did nothing to slow the train of

marijuana criminalization. Driving that train was one Harry Anslinger, commissioner of the then-

3 Eric Schlosser, “More Reefer Madness”, The Atlantic, April 1997 issue.

4 See www.pbs.org/wgbh/pages/frontline/shows/dope/etc/cron.html.

!2
nascent National Bureau of Narcotics. Anslinger described marijuana users as follows, “most are

Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz, and swing, result from

marijuana use.” “[T]he primary reason to outlaw marijuana is its effect on the degenerate races.” 5

In 1937, largely in response to testimony provided by Commissioner Anslinger, Congress

passed the Marijuana Tax Act, effectively outlawing marijuana by imposing heavy taxes on the

sale, possession, and transportation of cannabis. The final descent into legislative madness

occurred in 1970 when the United States Congress passed the Controlled Substances Act,6 which

repealed the Marijuana Tax Act, but classified cannabis in the same category as heroin, as a

Schedule 1 drug. Maryland thereafter followed suit and maintains this schedule I classification to

this very day.7

Coram nobis relief is warranted in these cases

The Court of Appeals in Skok v. State, 361 Md. 52, 760 A.2d 647 (2000) identified five

conditions to entitlement to coram nobis relief.

(1) "The grounds for challenging the criminal conviction must be of a constitutional,
jurisdictional or fundamental character." 361 Md. at 78.

(2) "[A] presumption of regularity attaches to the criminal case, and the burden of proof
is on the coram nobis petitioner." Id.

(3) "The coram nobis petitioner must be suffering or facing significant collateral
consequences from the conviction." 361 Md. at 79.

5Common Sense for Drug Policy, “The Devil Weed and Harry Anslinger”, www.csdp.org/
publicservice/anslinger.htm.
6 Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

7 See §5-402(d)(23) of the Criminal Law Article of the Maryland Code.

!3
(4) "Basic principles of waiver are applicable to issues raised in coram nobis
proceedings." Id.8

(5) "One is not entitled to challenge a criminal conviction by a coram nobis proceeding
if another statutory or common law remedy is then available." 361 Md. at 80.9

The grounds for challenging the criminal convictions


are of a constitutional, jurisdictional or fundamental character

It cannot be gainsaid that equal protection of the laws, as secured by the Fourteenth

Amendment of the United States Constitution, is a fundamental right. “[N]o state shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV. §1. (Emphasis supplied).

The United States Supreme Court has noted that “the history of the narcotics legislation

in this country ‘reveals the determination of Congress to turn the screw of the criminal

machinery -- detection, prosecution and punishment -- tighter and tighter.’" Albernaz v. United

States, 450 U.S. 333, 343, 101 S. Ct. 1137, 1144 (1981) quoting from Gore v. United States, 357

U.S., [386] at 390 [1958]). Recent history has incontrovertibly established that the “turning of

the screw” during the “war on drugs” has been applied disproportionately tighter against the

African-American community.

In 1986, the United States Congress passed the Anti-Drug Abuse Act of 1986, which

created, inter alia, a mandatory minimum sentence of five years for trafficking in five (5) grams

8 The State avers that the claims presented herein have not been previously waived.
9 The State further avers that all persons named in this action have no other statutory or common
law remedy available in which to challenge their respective conviction.
!4
of crack cocaine and the identical mandatory minimum sentence for trafficking in five hundred

(500) grams of powdered cocaine. In 2010, Congress passed the Fair Sentencing Act, which

reduced the crack/powder cocaine sentencing disparity from 100:1 to 18:1. 10 This sentencing

disparity disproportionately impacted African-Americans; under the 100:1 regime, African

Americans served roughly the same prison time for non-violent drug offenses as whites did for

violent offenses.11

So too has enforcement of laws proscribing possession of marijuana disproportionately

impacted the African-American community. From 2001-2010, African-Americans in Maryland

were almost three times more likely than Whites to be arrested for marijuana possession. For the

same period, African-Americans in Baltimore City were 5.6 times more likely than Whites to be

arrested for marijuana possession.12 Yet research indicates that marijuana usage is roughly the

same across all races of people.13

Marijuana and the War on Drugs

Nationwide the ACLU found:

• During 2001 through 2010, there were over 8 million marijuana arrests in the
United States, 88% of which were for possession.
• Marijuana arrests increased between 2001 and 2010 and accounted for over half
(52%) of all drug arrests in the United States,

10 In Dorsey v. United States, 567 U.S. 260, 132 S.Ct. 2321 (2012), the United States Supreme
Court applied the Fair Sentencing Act's more lenient mandatory minimum provisions to pre-Act
offenders who were not sentenced after the Act took effect.

11 See www.aclu.org/issues/criminal-law-reform/drug-law.../fair-sentencing-act.

12 See www.aclu-md.org/sites/default/files/legacy/files/aclu-thewaronmarijuana-mdpage.pdf.
13 See www.aclu-md.org/en/press-releases/aclu-report-racial-disparities-marijuana-arrests.
!5
• Marijuana possession arrests accounted for nearly half (46%) of all drug arrests.
• A black person was 3.73 times more likely to be arrested for marijuana possession
than a white person, even though Blacks and Whites use marijuana at similar
rates.
• Racial disparities in marijuana possession arrests exist in all regions of the
country14
Even after 2010, when many states across the U.S. now have some form of a law legalizing

marijuana for personal use, the Drug Policy Alliance found that racial disparities continue to

exist despite reform:

• In Colorado, marijuana arrests for white people decreased by 51%, but only decreased by
33% for Latino people and 25% for black people between 2012 and 2014.
• The post-legalization arrest rate for black people in Washington is double the arrest rate
for other races and ethnicities.
• A black person in Washington, D.C. is 11 times more likely than a white person to be
arrested for public consumption of marijuana.15

Maryland and marijuana

Medical Marijuana became available in Maryland in early 2018. Effective October 1,

2014 a new law made possession of less than 10 grams of marijuana a civil infraction.

In 2010, before decriminalization of possession of small amounts of marijuana, the rate

of arrest for marijuana possession in Maryland was the fourth highest in the nation. Police

arrested one out of every 250 people for marijuana possession.16 Black individuals comprised

only 30% of the state's population in 2010, but 58% of arrests for marijuana possession.

14 https://www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf.
15 http://www.drugpolicy.org/legalization-status-report.
16 https://www.aclu-md.org/en/press-releases/aclu-report-racial-disparities-marijuana-arrests.
!6
Baltimore City had the largest rate of disparity of marijuana arrests with black individuals being

5.6 times more likely to be arrested for marijuana possession, according to the 2010 report.17

In Baltimore City, racial disparities continue to exist after the decriminalization of small

amounts of marijuana. BPD records reflect that in 2015, BPD issued 44 citations for possession

of marijuana (after decriminalizing 10 grams or less of marijuana); of those who were cited 39

were African American (89%). In 2016, BPD issued 199 such citations; 187 were issued to

African Americans (94%). In 2017, BPD issued 431 citations; of those marijuana possession

citations, 410 were issued to African Americans (95%). The plurality of these 2017 citations by

far were issued in the Western police district (42%).In light of this clear pattern of a racially

disproportionate impact of enforcement of drug laws, the grounds in this proceeding for

challenging the criminal convictions are of a constitutional character.

The named individuals are suffering or facing


significant collateral consequences from the convictions

In Skok, supra, the Court of Appeals identified both deportation/removal and enhanced

sentencing under recidivist statutes as sufficient bases for a reviewing court to find that a coram

nobis petitioner was subject to “significant collateral consequences” from a challenged

conviction. The State maintains that Skok should not be read as holding that deportation/removal

and enhanced sentencing are the exclusive bases for finding that “significant collateral

consequences” exist such as to warrant coram nobis relief.

This fact could not have been made more clear by the Court of Special Appeals in State v.

Hicks, 139 Md. App. 1, 9, 773 A.2d 1056, 1061 (2001), wherein the Court stated,

17 https://www.aclu-md.org/en/press-releases/aclu-report-racial-disparities-marijuana-arrests.
!7
Although Skok assigned as reasons for its decision the intervening changes in
immigration law, and recidivist statutes, it did not carve out a special remedy
limited only to those persons subject to a recidivist statute or deportation
proceeding.

0-0-0

Nowhere in the Skok opinion does the Court of Appeals suggest that a court
considering a coram nobis petition must look to the particular circumstances of
the petitioner to see whether a new recidivist statute or change in immigration law
applies before considering his petition. Id., 139 Md. App. at 10, 773 A.2d at 1061.

Although this is a matter of first impression in Maryland, “reputational harm”

from a conviction has been found by courts to be a “significant collateral consequence”

for purposes of seeking coram nobis relief. In United States v. Mandel, 862 F.2d 1067,

1075, n.12 (4th Cir. 1988), the United States Court of Appeals for the Fourth Circuit, in

affirming the granting of coram nobis relief by the United States District Court for the

District of Maryland to former Maryland Governor Marvin Mandel and five co-

defendants, observed,

Conviction of a felony imposes a status upon a person which not only makes him
vulnerable to future sanctions through new civil disability statutes, but which also
seriously affects his reputation and economic opportunities.” Parker v. Ellis, 362
U.S. 574, 80 S. Ct. 909 (1960) (Chief Justice Warren dissenting). (Emphasis
supplied).

“Reputational harm” for purposes of coram nobis relief is not limited to felony offenses.

The United States Court of Appeals for the Ninth Circuit in Hirabayashi v. United States, 828 F.

2d 591 (9th Cir. 1987) acknowledged this important principle.

We have repeatedly reaffirmed the presumption that collateral consequences flow


from any criminal conviction. See, e.g., Byrnes, 408 F.2d at 601. Id., 828 F.2d at
606.

0-0-0

!8
No court to our knowledge has ever held that misdemeanor convictions cannot
carry collateral legal consequences. Any judgment of misconduct has
consequences for which one may be legally or professionally accountable. See
Miller v. Washington State Bar Ass'n, 679 F.2d 1313, 1318 (9th Cir. 1982) (letter
of admonition in attorney's permanent record for which he is professionally
accountable constitutes sufficient adverse consequence for Article III)). Id. 828 F.
2d at 606-07.

In addition to reputational harm, research has identified an array of other 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. See Wayne A. Logan, Informal Collateral Consequences, 88

Wash. L. Rev. 1103 (2013).

The State avers that the individuals named in this proceeding are indeed suffering

“significant collateral consequences” from their challenged conviction for purposes of coram

nobis relief. Furthermore, these individuals were neither informed nor aware on the day that they

entered their respective pleas of these collateral consequences. Judges did not advise defendants

of the collateral consequences of a guilty plea as they were not required to so. Maryland Rule

4-242(c), both in its current and past iterations has required that a defendant be advised, inter

alia, of the “consequences of a plea.” This requirement, however, extends only to an advisement

of the direct, as contrasted with, the collateral consequences of the plea. Yoswick v. State, 347

Md. 228, 240, 700 A.2d 251, 257 (1997). “Direct consequences” has been held to mean the

maximum sentence “on the table” as a result of pleading guilty, see Bryant v. State, 47 Md.App.

!9
551, 424 A.2d 1115 (1981) or advisement of a plea-bargained sentence. State v. King, 71

Md.App. 229, 524 A.2d 807 (1987).

Vaughn v. State, 232 Md. App. 421, 429, 158 A.3d 1060, 1065 (2017), where a known

specific collateral consequence was held insufficient to justify coram nobis relief, is no bar to the

relief sought here. Vaughn, who pled guilty to a charge of third-degree sex offense, was informed

by the court of the collateral consequence of his plea, sex offender registration, when he pled

guilty. Vaughn is also distinguishable where, as here, the collateral consequences have increased

in both severity and unfairness, in light of the continued disparate enforcement, well-documented

by research, and the subsequent legalization or decriminalization of marijuana in various

quantities and circumstances.

There is no reasonable basis to charge the individuals named in this proceeding with

knowledge, at the time of their pleas, of the draconian significant collateral consequences that

ensued. We are not dealing here with individuals who are challenging malum in se offenses such

that it might be objectively reasonable to saddle them with knowledge of significant collateral

consequences of their convictions. Possession of marijuana is a malum prohibitum offense, the

conduct of which is patently innocuous. Finally, the collateral consequences are in fact, very real,

ongoing, and not merely theoretical. See Graves v. State, 215 Md. App. 339, 353, 81 A.3d 516,

524 (2013).

Although the State recognizes that this Honorable Court must conduct its own review of

the arguments presented herein, the State’s position, tantamount to a confession of error, is

entitled to “great weight” by this Honorable Court. See Sibron v. New York, 392 U.S. 40, 58, 88

S. Ct. 1889, 1900 (1968). See also Korematsu v. United States, 584 F. Supp. 1406, 1413 (N.D.

!10
Cal. 1984)(Where that confession of error is made by the official having full authority for

prosecution on behalf of the government it is entitled to even greater deference, citing Sibron,

supra.)

The Court of Appeals in Skok justified its recognition of an “expanded scope” of coram

nobis review on the basis of “contemporary conditions and public policy.” Id., 361 Md. at 77,

760 A.2d at 660 (2000). Contemporary attitudes and public policy toward marijuana have

changed dramatically in the past few years. Marijuana is now legalized for recreational purposes

in Washington, D.C. and ten states. “Medical marijuana” laws now exist in an additional twenty-

three states, including Maryland.18 Only seventeen states still criminalize marijuana possession

for all purposes. Contemporary conditions and public policy toward the recreational use of

marijuana, the grossly disproportionate impact on the African-American community of

enforcement of possession of marijuana laws as well as the ongoing significant collateral

consequences flowing from same strongly militate in favor of granting coram nobis relief in

these case.

Conclusion

“[E]xtraordinary instances require extraordinary relief ….” Korematsu, 584 F. Supp. at

1413. The writ of error coram nobis is warranted “under circumstances compelling such action to

18 The complete irrationality of maintaining marijuana as a schedule 1 drug, which by definition


is one that has, inter alia, “no accepted medical use in the United States for the substance”, see §
5-402(h)(2)(i)(2) of the Criminal Law Article, is evident by the fact that there are currently in
excess of 47,000 patients enrolled in the State’s Medical Marijuana program. See
www.harvestofmd.com/maryland-medical-marijuana-facts

!11
achieve justice.” United States v. Morgan, 346 U.S. 502, 511, 74 S. Ct. 247, 252 (1954). Justice

can only be served by the granting of coram nobis relief to these individuals.

Respectfully submitted,

Marilyn J. Mosby
State’s Attorney for Baltimore City

Antonio Gioia Michael Schatzow


Chief Counsel Chief Deputy State’s Attorney
Baltimore City State’s Attorney’s Office Baltimore City State’s Attorney’s Office
120 E. Baltimore Street, 9th floor 120 E. Baltimore Street, 9th floor
Baltimore, Maryland 21202 Baltimore, Maryland 21202
(443) 984-6222 (443) 984-6011
tgioia@stattorney.org mschatzow@stattorney.org

Certificate of Service

I HEREBY CERTIFY that on this _____ day of January, 2019, a copy of the State’s foregoing
Petition for Writ of Error Coram Nobis was mailed, first-class, postage prepaid to:

Kirsten Gettys Downs, Esq.


District Public Defender-Baltimore City
Office of the Public Defender
201 St. Paul Place

!12
Baltimore, Maryland 21202

Margaret Mead, Esq., on behalf of Baltimore City private defense bar


Mead, Flynn & Gray
1 North Charles St.
Baltimore, Md. 21201-3751

Andrew V. Jezic, Esq.


President, Maryland Criminal Defense Attorneys’ Association
9 Newport Drive
Suite 900
Forest Hill, Md. 21050

_________________________________
Michael Schatzow
Chief Deputy State’s Attorney for Baltimore City
120 East Baltimore Street, 9th Floor
Baltimore, MD 21202
(443) 984-6000
MSchatzow@stattorney.org

!13