An odd theory, odder clients

July 18, 2008|By JEAN MARBELLA

Well, this certainly gives support to the fool-for-a-client adage.

The cover story of the current Washington Monthly tells one of those tales that would be unbelievable, except that it's set in Baltimore - which is where all strange ideas eventually seem to come, not to die but to blossom and flourish against all reason.

The story, by Kevin Carey, an analyst at a Washington think tank, is about how a group of Baltimore men facing federal charges of murder, drug dealing and racketeering is using a bizarre legal argument in their defense. Known casually as the "flesh-and-blood" defense, the argument goes something like this: The federal government, being illegitimate, has no jurisdiction over individuals, and thus the names of the defendants on any court documents are legally distinct from the "flesh-and-blood" persons in the courtroom.

It's crazy stuff, of course, right up there with the black helicopters and the pyramid eye on the back of dollar bills and the man-in-the-moon logo of Procter & Gamble. And in fact, as Carey's piece notes, the argument has its origins with white supremacist and other extremist groups that used it to oppose everything from the 14th Amendment that granted citizenship to former slaves to the paying of federal income taxes.

All of which, of course, makes it sadly ironic that the defendants, who are African-American, are using it in their case, Carey writes. And yet, it's become something of a small trend among defendants, courthouse observers say, to cite the flesh-and-blood defense, causing some consternation among attorneys and judges because, well, basically it's a waste of time and never works.

Among the defendants the federal prosecutor's office says have used the defense are Solothal "Itchy Man" Thomas (life plus 10 years for murder-for-hire), Van Cleve Ashley (more than 34 years for tampering with - i.e., trying to kill - a witness) and Oliver Clifton Hudson (30 years for Oxycontin dealing).

"You can quote me as saying it's pseudo-intellectual, but it's really idiotic," said Rod J. Rosenstein, the U.S. attorney for Maryland.

The case that the Washington Monthly highlighted is, even without the flesh-and-blood sideshow, a fascinating one. It's a clustering of a number of murder and drug trafficking cases that Rosenstein's predecessor, Thomas DiBiagio, grouped together under federal racketeering charges as a way of going after "individuals responsible for making life hell in Baltimore."

As The Sun reported in 2004, the four men, Willie "Bo" Mitchell, Shelly Wayne Martin, Shelton "Little Rock" Harris and Shawn Earl Gardner, are accused of using drug profits to produce and promote rap recordings and events, with several bodies turning up in their wake. Two of the defendants had been arrested in a 2002 homicide because they took a cell phone from one of the victims and must have hit the saved number on the phone because their voices were reportedly picked up on an answering machine talking about the killing.

The case has been wending its way through federal court and is slated to come to trial in September. Already, the defendants have tried the patience of U.S. District Judge Andre M. Davis, who in the Washington Monthly piece appears to be valiantly and unsuccessfully trying to save them from themselves. He has issued a written opinion, Carey writes, noting the irony of black defendants using an argument based on the illegitimacy of the 14th Amendment, and, during one hearing, tried to tell Gardner that he was invoking the ideas of people "who think less of you than they think of dirt."

Davis, who is African-American, told him the extremists would make him a poster child, that they would laugh at how he is committing "suicide" by doing their work for them. That provoked from Gardner what, to me, was the saddest response, and the realization that even a circus has its tragic side: "The government wants to do the same thing anyway. So what's the difference?"

As Carey writes, there are those in the black community who are as susceptible to the anti-government conspiracy theories as white extremists are. With so many blacks arrested and in prison, it's no wonder the flesh-and-blood defense found a natural network in which it could spread.

"I think the theory is symptomatic of the desperation that people feel when they are in the federal criminal justice system," Barry Coburn, a Washington-based attorney who represents Gardner, told me yesterday. "The flesh-and-blood aspect of the case - I don't think that should distract or diminish how serious this case is.

"What's very significant about this case is the more typical aspect of it - these are young, inner-city men from Baltimore who could easily [be incarcerated] for the rest of their life," Coburn said. "This happens every day of the week."

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