Before testimony began in Jose Miguel Hernandez's attempted-murder trial, a Baltimore Circuit Court judge asked potential jurors a simple yet crucial question: "Do you believe that being a member of a gang is a crime?"
More than half of the panel answered yes.
"That was an eye-opener for me," said defense attorney Luiz R.S. Simmons, noting the hurdle that presented itself in defending a man who admitted to being associated with the violent Latino gang called Mara Salvatrucha, or MS-13, and stood accused of stabbing a woman on Pratt Street last year.
The judge's question went to the heart of the little-used legislation passed by the General Assembly in 2007 that can add 10 years to prison sentences for suspects proved to be gang members and convicted of gang-related crimes.
Baltimore's top prosecutor has criticized the law as too weak and too burdensome to be effective; defense attorneys have complained that innocent people and minorities could be unfairly tied to gangs simply by the way they dress and talk.
Simmons is one of those complaining defense attorneys. He's also a state delegate from Montgomery County, who not only voted for the 2007 gang legislation, but worked on the way the law was formed as a member of the House Judiciary Committee.
Simmons said it was a humbling experience to face a judge regarding a law he had worked on while representing a real defendant facing the real consequence of a lengthy prison term. Even as he worked on the bill, he consistently fought against what he felt was overly broad wording that he complained violated rights of free speech and association.
"We need a major overhaul to make the gang statute more effective and less cumbersome," the lawyer-lawmaker said after the trial for his client ended. "But at the same time, I don't want to see a young man be tarred and feathered and hung out because he's associated with a gang, and that's the only reason jurors find him guilty."
The jury never got a chance to add its voice to the debate.
A key witness recanted her statement to police, in which she said she saw Hernandez stab the woman. At the trial, she testifed that she meant to say she "assumed" Hernandez had stabbed the woman because she saw him standing over the victim while holding a knife. Simmons pointed out that he knife wasn't bloody.
Prosecutors dropped the attempted-murder charge Tuesday and gave up seeking extra time under the gang statute, which requires proving that two underlying crimes were committed. Hernandez pleaded guilty to assault, and a judge sentenced him to 10 years in prison, suspending all but the eight months he had spent locked up awaiting trial.
Circuit Judge M. Brooke Murdock placed the Rockville resident on three years' probation, to be served while on home detention, and ordered him to obtain his high school equivalency certificate and attend gang awareness classes. "Take advantage of this," the judge told the defendant, who under the gang statute had faced life plus 10 years in prison. "You only get one chance — one more chance."
Hernandez is one of only a handful of defendants across the state charged under the gang law. The Prince George's County State's Attorney's Office used the law as leverage to convince a man to plead guilty to lesser crimes. A man pleaded guilty in Montgomery County to participating in a gang linked to a killing and is awaiting sentencing.
Baltimore prosecutors have charged just one person in addition to Hernandez under the gang statute, and that person's trial is pending.
This past session, after complaints from a parade of prosecutors, lawmakers toughened the 2007 law by refining the definition of gangs, increasing the number of crimes that trigger the statute and enhancing the penalties. But those provisions don't take effect until Oct. 1.
Simmons wasted no time at Hernandez's trial mixing his two jobs: politics and the law.
"This has become something of a political trial," he told jurors. "Mr. Hernandez really and truly is not on trial here. Gangs are on trial here." He urged jurors to set aside "the fear and the anger and apprehension that you feel about gangs" and conclude that his client was being "scapegoated" for the friends he kept.
Prosecutors said that in April 2009, Hernandez and three other men got into an argument with members of another gang, Serano 13, inside the Iguana Cantina nightclub near the Inner Harbor. Members of Serano were thrown out and, prosecutors said, MS-13 members followed and stabbed two women near the Best Buy store on Pratt Street.
The three other men pleaded guilty to assault and were sentenced to time served. Hernandez was the only defendant charged under the gang statute; prosecutors alleged that the victims heard him call out "MS-13" and saw him flash gang signs.
Prosecutors said that bolstered their version that the dispute centered on a clash between rival gangs and proved Hernandez's involvement in MS-13. Simmons acknowledged that his client was affiliated with MS-13 and liked the social aspect but wasn't a hard-core member of the group linked to a trail of violence in the Washington suburbs.
After the trial, Simmons sat on a bench outside the courtroom and said he sympathized with police, prosecutors and residents struggling with gangs. He noted the succession of potential jurors before testimony began who called gangs "a plague" that "controlled the streets" through intimidation and violence.
He said: "I have a vested interest in having a tough gang statute."
Baltimore Sun reporters Tricia Bishop and Julie Bykowicz contributed to this article.