By Alex Mann
Capital News Service
ANNAPOLIS — Many bills remained in the balance as the minute hand ticked toward midnight on April 9, the last of Maryland’s 90-day legislative session.
Among them was legislation addressing the rights of criminals to petition for post-conviction relief–a process of challenging a conviction in court.
Until two years ago in Maryland, filing a petition for a writ of actual innocence or petitioning to test newly discovered DNA evidence were two ways a defendant could seek post-conviction relief–and potentially win their freedom.
Criminal defendants could have filed a petition for a writ of actual innocence if new evidence was uncovered that called into question that person’s conviction.
But in two Maryland Court of Appeals decisions–Yonga v. State (2015) and Jamison v. State (2016)–the court determined that individuals who accepted pleas were no longer eligible to petition for a writ of actual innocence or the testing of newly discovered DNA evidence.
More than 95 percent of defendants in criminal cases nationwide accept plea bargains, according to the Innocence Project, a legal group working to free innocent people who are incarcerated.
Proponents of Senate bill 423, sponsored by Sen. Bobby Zirkin (D-Baltimore County), argued–and opponents conceded–that innocent people sometimes plead guilty to crimes they do not commit.
“The bottom line is, if you’re innocent, you should not be in prison,” Zirkin told Capital News Service. “There are times when individuals plea to things that they may not have done because it’s the better idea in terms of … if you’re looking at a ton of time and there’s a plea for less.”
Baltimore resident Demetrius Smith, 34, served time in prison for a crime he did not commit.
In 2008, then 26-year-old Smith was charged with the murder of Robert Long in Baltimore.
A judge granted him bail despite the seriousness of the offense, “because he knew something wasn’t right,” Smith told lawmakers in February.
Smith–while out on bail–was charged in a different case for shooting his neighbor, who survived.
In 2010, a jury convicted Smith of murdering Long. He was sentenced to life in prison.
A year later, at the trial for his neighbor’s shooting, prosecutors offered Smith a plea bargain.
“My sister begged me to take the (plea) deal,” he said.
Smith accepted an Alford plea–an agreement in which the defendant maintains their innocence, but recognizes that the prosecutor has enough evidence to convict them.
“I had lost all faith that I would ever get justice in the courts the day I entered the Alford plea,” Smith told the Senate Judicial Proceedings Committee.
He was sentenced to 10 years of incarceration to run concurrently with the life sentence he was already serving for Long’s murder.
He maintained his innocence in both cases throughout.
Smith’s powerful testimony shook the committee.
However, Senate Bill 423, which would extend post-conviction relief rights to individuals who accepted plea bargains, did not go unopposed.
Representatives from the Maryland Attorney General’s Office sought changes in the legislation; the Maryland Crime Victims’ Resource Center and two state’s attorneys testified against the bill.
As originally drafted, opponents argued, the bill would open the floodgates for criminals to appeal their convictions, effectively disrupting the criminal justice system.
But, “a blanket dismissal of petitions for post-conviction (relief) undermines justice and is a threat to public safety,” Del. Kathleen Dumais (D-Montgomery County) wrote in support of the legislation.
Innocence Project testimony highlighted the public-safety aspect of the bill.
“For every innocent person who is wrongfully convicted, the person who committed the crime remains free,” Amshula Jayaram, an Innocence Project policy advocate, told lawmakers.
The actual person responsible for the crime was identified in 84 percent of the Innocence Project’s cases where an innocent person was wrongfully convicted, Jayaram added.
Opponents were not convinced. Those representing crime victims’ interests pointed to the additional pain that victims may experience if the case returned to court.
“(Crime victims) have an interest in avoiding unnecessary confrontations with those who perpetrated crimes against them and their loved ones,” Russell Butler, executive director of the Maryland Crime Victims’ Resource Center, submitted in written testimony. “Finality of convictions is a bedrock principle of the judicial system.”
Jayaram and Michele Nethercott, director of the University of Baltimore Innocence Project Clinic and one of Smith’s attorneys, argued that this bill would simply allow defendants to petition the court for their case to be retried.
A federal investigation in 2012 determined that Smith had not murdered Robert Long. Smith and his legal team were able to secure his freedom, and the murder conviction was eventually expunged from his record.
The conviction for shooting his neighbor, which was eventually vacated, remained on Smith’s criminal record for years.
And the two Maryland appeals court decisions meant that Smith’s Alford plea barred him from presenting new evidence–a witness was prepared to recant, Nethercott said–as part of a writ of actual innocence.
The wrongful convictions for years “stopped me from getting jobs, houses, a lot of stuff,” Smith said. “It’s just getting a little better now. Just now.”
With amendments, Senate Bill 423 establishes that people who were convicted by way of guilty plea, Alford plea or a plea of nolo contendere–no contest–may petition for a writ of actual innocence and for the testing of newly discovered DNA evidence.
Under the bill, the court will grant a writ or the test by determining whether “a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing.”
The court may either “grant a new trial or vacate the conviction if the court determines that the DNA test results establish by clear and convincing evidence the petitioner’s innocence,” the bill says.
Zirkin negotiated with proponents and opponents to find compromising amendments.
One such amendment states that if the court orders a new trial, both the prosecution and defense can bring in any evidence in the possession of law enforcement at the time of the original trial, regardless of whether it was included in the statement of facts accompanying the original plea bargain.
Zirkin’s amended bill also contains a provision that allows either party to appeal the court’s post-conviction ruling. Under existing statute, the state has not been eligible to appeal the court’s decision.
The amended bill passed 134-1 in the House before returning to the Senate, where it came up about 20 minutes before Senate President Thomas V. “Mike” Miller (D-Prince George’s, Calvert and Charles counties) struck the gavel for the last time in 2018.
The Senate voted unanimously to pass the bill.
Smith told lawmakers he didn’t want “what happened to me to happen to the next young man that’s 19 or 20, that’s going to sit in jail for six or seven years for something that he didn’t do.”
The bill awaits Gov. Larry Hogan’s consideration.
“The legislature passed a record number of bills this session,” Hogan spokeswoman Shareese Churchill wrote in an email to Capital News Service. “The legislature has 20 days to present passed legislation and the governor has 30 days from that point to make his decision.”
“The governor will closely review this legislation,” Churchill added.
Barring the Republican governor’s veto, the law’s success would be determined by how Maryland courts apply it.
“We’ll have to see how this plays out in the real world,” Nethercott said, “in terms of how it actually works out in the courts.”