Men resist trial through 'flesh and blood' defense

The Baltimore Sun

Despite being fired, denounced, interrupted and generally frustrated by their clients during the past several years, attorneys for four Maryland men accused of racketeering, murder, illegal weapons possession and drug distribution dutifully rose to their defense recently through opening statements in what's expected to be a lengthy jury trial in federal court in Baltimore.

The defendants, Willie Mitchell, Shelly Wayne Martin, Shawn Gardner and Shelton Harris - all refuse to acknowledge that they actually are defendants. They've disrupted proceedings and seized the courtroom microphone during pre-trial hearings, objecting to the word defendant along with the notion that the court has any jurisdiction over them.

"I do not consent to any of these proceedings. I do not understand any of these proceedings," Mitchell said in a prepared speech largely echoed by his co-defendants during a 2005 hearing.

Such claims are part of a so-far fruitless legal strategy known as the "flesh and blood" or "free man" defense, in which those accused of crimes claim that the federal courts, governed by the U.S. Constitution, have no authority over their "flesh and blood."

The strategy has roots going back to the post-Civil War ratification of the 14th Amendment, which guarantees equal rights and led some slavery proponents to claim that the Constitution no longer applied to them, said Abraham Dash, a professor emeritus at the University of Maryland School of Law.

It's the bane of defense attorneys - "Basically, the judge told us just to do our jobs," Thomas L. Crowe, who represents Martin, said in an interview - but the strategy is gaining momentum in the federal prison system.

Attorneys think these four learned of it in the Maryland Correctional Adjustment Center in Baltimore, known as "Supermax," where inmates awaiting trial will grasp at any hope they can. And it further complicates an already complex case, with the prosecution promising to use the "flesh and blood" actions as evidence of racketeering.

In the past three years, 10 to 15 people have tried the "flesh and blood" defense in Baltimore, said Maryland U.S. Attorney Rod J. Rosenstein. "What's notable about it," he added, "is that it's always unsuccessful and usually counterproductive."

The trial has been a long time coming. The defendants were indicted federally in early 2004; by then, Gardner had been tried and convicted in state court for one of the five murders the men are now charged with. And lawyers on both sides admit that the language, if not the details, in the case are likely to offend, and perhaps shock, the jurors.

The facts of the case are "like a descent into Inferno" or "like the layers of civilization are being peeled back," Assistant U.S. Attorney Robert Harding said in his opening statement.

The case reads like an inner-city crime drama, with wasted college opportunities, rap star wannabes, killings in a boxing champion's car, drug dealing, threats against "snitches," a self-interested witness alleged to be a local hit man, and a potentially damning conversation caught on the voice mail of a victim's mother-in-law.

The prosecution claims that the four men - three of whom grew up together in Randallstown - started off as small-time drug dealers in the 1990s, eventually melding into an organized crime unit that terrorized the Baltimore underworld. They're being prosecuted under the Racketeer Influenced and Corrupt Organization Act, known as RICO, originally created to prosecute members of the Mafia. Under the act, each member of such an organization can be held responsible for the crimes of other members.

According to Harding, things turned deadly for the group in 2002, after a birthday party, held at Hammerjacks in Baltimore, for Kevin Liles, who rose from an internship at Def Jam Records to become executive vice president of Warner Music Group.

After the party, Mitchell allegedly stabbed three members of a rival drug organization. Then, fearing he would be killed in retaliation, he arranged for the murder of the man he believed had been hired to kill him - along with the man's former girlfriend, who was seated next to him, according to prosecutors. The bodies were found in a 1999 Infiniti Q45 belonging to former heavyweight boxing champion Hasim Rahman, who had employed the dead man at one of his clothing stores.

Mitchell and Harris founded a rap company together, Shake Down Entertainment Ltd., which Harding says was used to intimidate other Baltimore criminals through song lyrics. In the opening scene of Stop Snitchin' 2, a follow-up to the controversial Baltimore-produced DVD that condemns witnesses' cooperation with police, Harris' voice can be heard identifying three men as "snitches" on a cell phone, Harding said.

At least one of the men is also alleged to have killed two city drug dealers and stolen their cell phones, mistakenly calling the mother-in-law of one of the men and recording a conversation on her voice mail that the prosecution says links them to the deaths. They also killed another woman in the process of trying to kill her husband, Harding said.

The defendants could face life in prison if convicted.

The defense offers different scenarios, however, and claims that one of the prosecution's star witnesses is "a stone-cold killer, a gun for hire," Crowe said in court. The defense repeatedly questioned the prosecutions' evidence of RICO activity. They intend to show that their clients are innocent of most of the charges and fight the racketeering claim.

"The group was not organized, it was not coherent, it was not cohesive," said Mitchell's attorney, Laura Rhodes. "It was just their business of being friends."

Though the four defendants sat quietly in court Wednesday and conferred with their attorneys, a day earlier they had employed some old "flesh and blood" tactics as U.S. District Judge Andre M. Davis arraigned them on a slightly revised indictment. Davis asked each man whether he had seen the document, and how he wanted to plead. And each time, in return, they softly muttered prepared, and apparently identical, speeches that were unintelligible to spectators.

The judge cut the men off. "That's a yes," he boomed from the bench in response to whether the defendants had seen the document. He also entered "not guilty" pleas on their behalf.

In November 2005, the men had filed motions asking that the case against them be dismissed for lack of jurisdiction. It was the first time they employed the "flesh and blood" defense, and it confounded their attorneys. The men seized the microphones and launched into speeches denouncing the proceedings and firing their attorneys. They claimed the indictment didn't refer to them because their names were spelled in capital letters and not "proper English grammar," according to a court transcript.

unusual strategy

Use of the "flesh and blood" defense, in which a defendant claims the court has no jurisdiction over his body, has been rising in Baltimore in recent years, according to the Maryland U.S. Attorney Rod. J. Rosenstein. It's always unsuccessful, he said. Here are some examples:

* Oliver Clifton Hudson and Gregory Wayne Banks were found guilty in absentia - they refused to attend their trial - of running an OxyContin drug ring in 2005. They were sentenced to 30 years and 16 years respectively in federal prison.

* Solothal "Itchy Man" Thomas was found guilty of being a West Baltimore hit man in 2006 and sentenced to life in prison. He refused to cooperate with his attorney.

* James E. Jones was convicted of illegal weapons possession and sentenced to more than 21 years in prison. He appealed last year, but the court affirmed his convictions and sentence.

Source: Sun research and court records

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