Fight Brewing Over 'Innocence' Law

Legislators, Prosecutors Spar On Convicts' Delayed Appeals

November 29, 2009|By Tricia Bishop | Tricia Bishop,tricia.bishop@baltsun.com

A battle is brewing between Maryland's 24 state's attorneys and the legislature over a law that went into effect last month, allowing court hearings for people convicted of any level crime - at any time - who claim to have fresh exculpatory evidence.

Both sides agree the new law, meant to protect innocent people from unjust punishment, needs changes, it's too broad, and doesn't give prosecutors or victims' families a guaranteed opportunity to be heard. Each has drafted new versions, intending to submit them during the coming legislative session. But they differ on just how much needs to be amended.

The lawmakers want fewer changes: excluding district court misdemeanors from eligibility and requiring that notice be sent to particular parties. Prosecutors, concerned that a flood of expensive court filings will ensue, have a laundry list of alterations, including time limits and a promise that people who've pleaded guilty won't be qualified to petition for hearings.

At stake, each side says, is justice and community safety: It's risky to transport prisoners to court for frivolous claims, says one, and riskier still to punish the wrong person and let the real criminal go free, says the other.

Changing the law is the No. 1 legislative priority for the Maryland State's Attorneys' Association, or MSAA. But with lawmakers vowing to dig in their heels, it's likely to be a heated issue.

"I asked some legislators if they really understood [it]; they didn't," said Baltimore State's Attorney Patricia Jessamy. Politicians say the lawyers should have spoken up sooner.

The prosecutors didn't lodge their objections until a bill had passed the Senate. Then, after failing to get a committee conference to discuss amendments to the identical House version, prosecutors asked for a veto in mid-May, more than a month after the law had unanimously passed both houses. Five days later, the governor approved it.

His senior policy and legislative adviser sent MSAA a letter in late May acknowledging "legitimate concerns" that could be dealt with in 2010.

"[The state's attorneys] were asleep at the switch," said Del. Samuel "Sandy" Rosenberg, the Baltimore Democrat who sponsored the original legislation. He received a copy of the MSAA's draft bill in the mail over the weekend and isn't impressed.

"I would not support that bill," he said. "It goes way beyond what's needed."

The idea for the current law, which is known by what it allows convicted people to do - that is "petition for writ of actual innocence" - came about during the 2008 legislative session when there was a push to protect the wrongfully convicted. A measure passed that would allow DNA evidence to clear someone's name even after conviction. That led Rosenberg to introduce his bill, which did the same thing but expanded the evidence to include anything.

Previously, the law allowed defendants to file for new trials within 10 days of a verdict or later if they could show why new evidence couldn't be found within the time limit. If the defendants were sentenced to death, they could file such a motion at any time if the new evidence exonerated them.

The new "actual innocence" law takes away the time limit and softens the requirements petitioners must meet. They can file any time and will be granted a hearing if they claim to have game-changing, newly discovered evidence.

Prosecutors fear that will prompt droves of convicts to create phony witnesses and file false claims.

In Baltimore, Timothy Earl Hatchett - inmate #210-930 - is the lone petitioner. He's serving a life sentence for murder, and in the past 20 years has sued his Maryland wardens and Jessamy. His petition claims to have new witness evidence from an admitted heroin dealer.

Virginia has a similar law, and in its first four years, roughly 130 convicts received hearings, according to a Maryland fiscal note. Five of the cases were pending at the time the data were collected, 124 were denied, and one person was exonerated.

The law is designed for that "one," lawmakers say. But it's not an opposing view to prosecutors, said Howard County State's Attorney Dario Broccolino, MSAA vice president and the person in charge of legislation, including the new draft bill.

"No prosecutor wants to have a convicted person who's actually innocent; that's a prosecutor's worst nightmare," Broccolino said. "But you have to put some kind of limitation as to far how you can go with these ... because the cases would never end."

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