Prosecutors want veto of forfeiture bill

April 18, 1994|By Dennis O'Brien | Dennis O'Brien,Sun Staff Writer

Maryland's prosecutors say a measure rushed through the General Assembly will make it harder for them to confiscate the motor vehicles used by drug dealers.

The Maryland State's Attorney's Association plans to ask Gov. William Donald Schaefer to veto the bill because prosecutors say it would rob them of their discretion in deciding when to seize a drug dealer's vehicle.

"It's a crazy law. Absolutely crazy," said Harford County State's Attorney Joseph I. Cassilly.

But lawyers specializing in criminal cases say the bill, which would take effect Oct. 1, provides needed judicial oversight of a process in which the state takes ownership of a defendant's property.

"If it makes it harder, it should make it harder," said M. Albert Figinski, legislative chairman and past president of the 400-member Criminal Defense Attorneys Association. "It's judicial review. The concept is not revolutionary."

Under the current law, authorities can seize a car or truck if the owner was dealing drugs, had previous drug convictions or was carrying enough drugs at the time of arrest to indicate he was a dealer.

The local police chief makes the initial decision on seizure, subject to review by the state's attorney and approval by a Circuit Court judge, who must determine if the vehicle was used to violate state drug laws. The judge may reverse the forfeiture, but only for procedural missteps, such as failure to give notice of the forfeiture, or if the seizure appears to be grossly unfair.

Police and prosecutors have used the Maryland drug forfeiture law to seize hundreds of cars and trucks from convicted drug dealers over the past decade. In most jurisdictions, the vehicles forfeited are either auctioned or turned over to police, often for use in undercover operations.

jTC "It hurts the bad guy, it benefits the good guy and it doesn't really cost," said Frank Charles Meyer, an assistant state's attorney in Baltimore County, where at least 100 cars and trucks have been forfeited in the past decade.

Under the new law, the judge will be asked to decide whether the police chief and state's attorney acted appropriately in cases where they decided on forfeiture.

OC The defense lawyers argue that current law gives the police and

prosecutors too much authority over a defendant's property. They also say the law is not uniformly enforced and that in many cases the harshness of the penalty is disproportionate to the crime.

"Anyone in criminal defense work has a horror story out there to tell," said Richard Finci, a New Carrollton defense lawyer.

He cited the Frederick County case that prompted the legislation.

Mark Allen Willard, 28, of Cascade was arrested Nov. 6, 1992, after buying what he thought was $40 worth of crack cocaine from an undercover police officer in an open-air drug market in Frederick, according to court records. It turned out to be an artificial substitute.

For that, police seized the 1988 Toyota truck he was driving.

The Court of Appeals upheld the forfeiture in a March 15 decision.

But in a dissent, Judge John F. McAuliffe, who is now retired, wrote that there should be more judicial oversight in the forfeiture process.

"Surely this decision [of forfeiture] is susceptible to judicial oversight. . . . Otherwise the subsequent judicial proceeding mandated by the legislature lacks meaning," he wrote.

Del. John S. Arnick, a Dundalk lawyer, said he used the minority opinion to write the bill he introduced March 23. The law always has been murky, he said, and defense lawyers have been complaining about it for years.

"Without this, no one decides on the appropriateness of the forfeiture other than the state's attorney," Mr. Arnick said.

But Frank R. Weathersbee, state's attorney in Anne Arundel County, where roughly 40 vehicles were forfeited last year, complained that the new law "means we'll be subject to second-guessing by the court about what is really an executive decision."

"The chief of police could be summoned to every forfeiture case to explain why the vehicle was forfeited, and the state's attorneys could then be summoned and asked the same things," he said.

"It's just going to inconvenience the hell out of everybody," Mr. Cassilly said.

Prosecutors also are concerned that they were not given sufficient notice of Mr. Arnick's bill and had no chance to oppose it as it sped through the General Assembly.

"What was the hurry?" Mr. Cassilly asked. "Why not have a public hearing on this? What overwhelming social ill are we curing that we are in such a hurry for?"

Legislative records show the measure passed 132-1 in the House on April 6, two weeks after it was introduced. It passed in the Senate 44-1 without a hearing on April 10, the day after it was introduced there -- and just a day before the 1994 session ended.

"We're trying to determine now how it got through the legislative process as quickly as it did," said Baltimore State's Attorney Stuart O. Simms.

But the bill's proponents say that the measure was the subject of a hearing before the House Judiciary Committee March 29 and the prosecutors could have spoken up then.

"To say they didn't have an opportunity to speak out is outrageous," Mr. Figinski said.

Mr. Figinski said that he wasn't surprised that the prosecutors are asking Mr. Schaefer to veto the bill.

"We'll be writing a letter of our own," he said.

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