ANNAPOLIS — Maryland’s highest court adopted a rule Tuesday to establish a process to allow prosecutors to move to vacate convictions they feel they can no longer stand behind.
The Court of Appeals, with only six members present due to a vacancy, approved new Rule 4-333 unanimously without questions or discussion. The rule implements a law passed this year that was driven largely by Baltimore City State’s Attorney Marilyn J. Mosby, who seeks to be able to erase convictions for hundreds of individuals whose cases relied on testimony from corrupt members of the Baltimore Police Department’s now-disbanded Gun Trace Task Force.
Deputy State’s Attorney Janice Bledsoe told the Court of Appeals Standing Committee on Rules of Practice and Procedure in September that the office had identified at least 790 convictions it believed should be vacated because they significantly involved GTTF members. Those motions have already been filed, pursuant to the new law, while the adoption of a formal rule governing such actions was pending.
The Baltimore City State’s Attorney’s Office has been reviewing cases involving the officers since their federal indictments in 2017 and began filing motions last year attempting to reopen cases in which defendants were not eligible for traditional post-conviction relief.
When some judges denied joint motions by the state and defense to vacate convictions — often because the judges said they did not believe the law allowed for the relief requested — Mosby turned to the General Assembly to ask that a mechanism be created to handle such situations.
The legislature passed House Bill 874, sponsored by Del. Erek Barron, D-Prince George’s, earlier this year, which allows a prosecutor to move to vacate a conviction if newly discovered evidence makes it likely the outcome of the trial would have been different or if new information calls the integrity of the conviction into question.
The new rule attempts to fill in gaps in the statute, retired Court of Appeals Judge Alan M. Wilner, who chairs the Rules Committee, said Tuesday. The rule defines prosecutor as the local state’s attorney, attorney general or state prosecutor who prosecuted the case and stipulates that the moving prosecutor can seek to vacate all or part of the charges associated with a case.
The law requires the defendant be given notice when a motion is filed, but the Rules Committee acknowledged there may be situations where the defendant cannot be located, Wilner said.
“The easiest solution would be not to file the petition until they’ve got the defendant,” Wilner said, noting nevertheless that some prosecutors want to be able to vacate a conviction because it’s “what the state should do” and as a matter of justice, even if the defendant can’t be notified.
The committee decided to allow an action to be filed without locating the defendant so long as the prosecutor shows attempts were made and, if the motion is denied, it is without prejudice so it can be filed again if the defendant is found.
The prosecutor has 30 days after a conviction is vacated to either dismiss or take other appropriate action in a case, but Wilner said it was unclear what the impact of a vacated count or entire case would have on restitution orders and court costs paid by the defendant. The committee opted to remain silent on the issue of whether those payments can be recouped.