When one of Charles Dickens' characters said, "The law is an ass," he could easily have been referring to the recent Maryland Court of Appeals decision that makes it practically impossible for the state to prosecute legislators for taking bribes — unless, perhaps, they are caught on video or with a wired informant.
Instead of taking the opportunity to put teeth in the state bribery law, the Court of Appeals affirmed the dismissal of the indictment against Baltimore City Councilwoman Helen B. Holton on the grounds of "legislative privilege." This is not the way to go if we want to enable our state laws to prevent and punish corruption.
Make no mistake: Ms. Holton was not exonerated. The state prosecutor never had his day in court to put on evidence against her; no jury was able to decide whether she was guilty or innocent.
What makes this especially galling is that the people of Maryland had long ago taken every possible step to ensure that public officials suspected of accepting bribes could be criminally prosecuted in state court. In 1867, we adopted a specific provision in the Maryland Constitution to forestall the very result the Court of Appeals reached.
The General Assembly promptly passed a criminal statute using the language of the 1867 constitutional amendment. More than 100 years later, in 1972, state Del. Leonard Blondes was charged with soliciting and accepting payment of $5,000 in order to influence him to sponsor a bill to amend Maryland law to permit bowling alleys to serve beer.
The trial court ruled that the 1867 provision created an exception to the 1776 "speech or debate" clause in the Maryland Declaration of Rights and the section of the original Maryland Constitution giving state legislators immunity from civil or criminal liability "for words spoken in debate."
But the Court of Special Appeals reversed Mr. Blondes' conviction. It relied on the U.S. Supreme Court's rulings regarding the effect of the U.S. Constitution's corollary speech-or-debate clause and held that, although Mr. Blondes could be prosecuted for bribery, the state's use of evidence of Mr. Blondes' legislative acts was prohibited. Mr. Blondes was retried and convicted again, but his second conviction was reversed; this time the court found that he had been subjected to double jeopardy.
It was not until July 2011 that Maryland's highest court, the Court of Appeals, spoke on the question of the impact of Maryland's speech or debate clause. Unfortunately, it repeated the sins of the Court of Special Appeals in the Blondes case by not taking the opportunity to give full weight to the anti-bribery provision that had been added to the Maryland Constitution in 1867.
Worse, the court eviscerated the anti-bribery law even further: It affirmed the dismissal of Ms. Holton's indictment for bribery and other charges and did not approve sending the case back for trial. It found fatal the mention of her legislative acts in the indictment.
The practical effect is to make it nearly impossible for the state prosecutor to be able to prove that a legislator took money for his or her vote. All that is left is for the federal courts to try a state legislator who is accused of breaking a federal law, because the U.S. Supreme Court has held that a state legislative privilege has no force in a federal prosecution. (This is happening now with the case against state Sen. Ulysses Currie. But we are having to rely on the federal government to prosecute him. Shouldn't Maryland be able to keep its own house in order?)
Interestingly, the Court of Appeals decision gives more protection to state and local legislators in state court than the federal courts give to members of Congress who are accused of corruption. The U.S. Supreme Court has stated that federal prosecutors in such cases may prove acts "casually or incidentally related to legislative affairs." Following these guidelines, the trial of former Rep. William Jefferson of Louisiana resulted in his federal conviction for bribery in 2009.
The U.S. attorney was given the green light to prove Mr. Jefferson's status and committee membership and to call an expert witness to testify about congressional procedure. The person who allegedly paid the bribe was permitted to testify. The judge pointed out that Mr. Jefferson could waive his legislative privilege if he felt that doing so would help his defense.
Two members of Maryland's Court of Appeals, Judges Sally Adkins and Glenn Harrell, would have sent the Holton case back to the circuit court to allow the state prosecutor to proceed with the same types of evidence as were permitted in the Jefferson case. This "half a loaf" would have been better than nothing. But absent the evidence of Ms. Holton's legislative acts, the case would have been nigh impossible to prove beyond a reasonable doubt.
The only remedy with regard to future local legislators is to amend the 1973 statute that had extended the speech-or-debate protection to legislators at the local level. The only way to change the law's effect for the General Assembly is to amend the state Constitution. If we are to restore our faith in our state and local governments, we need to take both steps.
Lynn McLain is a professor of law and the Dean Joseph Curtis Faculty Fellow at the University of Baltimore. Her email is firstname.lastname@example.org.Copyright © 2014, The Baltimore Sun