If you are convicted of possessing a gun on the streets of Baltimore City, the State is going to ask that you be sentenced to jail. That is their policy and the judges are not going to be sympathetic to anything other than jail. That is a dynamic that 300 murders bring to the Court system. But what if you possessed but didn’t really possess it? You better have a Body Cam proving it. We did.
The client’s husband comes home and without so much as a hello, she rushes out and gets in his car and drives away. While driving she cannot find a lighter so she reaches in his lunch bag and finds one but also feels a handgun in the bottom of the lunch box. The gun is registered to her husband, but she does not have a carry permit and could not get one because of her previous record. Once at her destination a police officer comes up to talk to her and asks for id. She tells him her purse is in the trunk and she goes to get it. Before opening the trunk, she says, there is a gun in the trunk in my husband’s bag. I found it while driving. The trunk is eventually opened and the police take the gun and she gets a cigarette. They ask her about the gun and she says just take it to the station and call her husband to come get it. She is COMPLETELY oblivious to the fact that she has done anything wrong and can be charged. The Body Cam conclusively shows her “innocence.”
When they decide to arrest her she flips out and cannot believe it. She says to the initial officer that she did not even have to tell him it was there, and he sneers at her and tells her that is right she didn’t have to volunteer that. The second officer apologizes and says he has to follow orders. The District Court prosecutor agreed with me that it was just wrong but said he had to offer 6 months. The trial judge who is a friend of mine would have given her 3 years- his policy.
I request a jury trial and prepare to try the case on the never used argument that the jury can refuse to apply a law in dubious factual situations where it is just not designed to apply. The application of the law would result in an injustice. I was prepared to use this defense in a teenage kiddie porn case where the 18 year old boyfriend of a 15 year old boy had taken a photo of the other’s penis. They had been together for over a year. The photo was not disseminated and it was found on the 18 year old’s computer in an unrelated matter. One Circuit Court judge did not believe that it could possibly be a crime, but the charges were brought. I told the prosecutor how I intended to defend the case and we resolved it without a conviction or sex offender registration. No one wants kiddie porn unpunished, but that was just not kiddie porn.
In the gun case I ask the prosecutor to review the Body Cam and she does so with her supervisor. She could have thrown the bag away so one of the juror’s children could have found it and shot himself or someone else or she could toss the bag in the trunk and have her husband put it in the house when she gets home. The prosecutor and the supervisor both realize that she is “innocent.” The police do not protest. The charges are dropped.
Now if you only read the police reports, you cannot truly appreciate her innocence. In fact there would have been no way to avoid a trial. At the trial would she have been as credible as she was on the Body Cam that was running when the incident actually occurred? Maybe or maybe the jury would think she had months to “rehearse.” This is the second Body Cam case that helped my client. A complete injustice was avoided. The State’s Attorney’s Office for Baltimore City is to be commended for doing justice. As a former prosecutor in that office I felt proud that my former office did the right thing despite pubic pressure and media headlines to lump everyone together. One size does not fit all. When the State and the judges are on the same page on most cases without much regard for individual circumstances, justice is difficult to achieve. That did not happen here.