The Real Story on Baltimore's Conviction Rate

   In December 2021, as Baltimore City State’s Attorney Marilyn Mosby was publicly claiming a 90% conviction rate, I knew of a disturbing plea bargain her office had made earlier that year.

    Khalid Brinkley was charged with home invasion, armed robbery, and being a felon in possession of a handgun. He had forcibly entered a home with another individual, bludgeoned the resident with a gun, robbed him, and was caught red-handed by the police with the gun and stolen goods running out of the house. The presiding judge lectured Brinkley as follows:

    Since 2011, “when you got caught… it’s been breaking into people’s houses—given probation. You violated every one of those probations—every one of them…You violated the same probation twice…Then you go from burglaries to robberies…You get probation again, for robbery…And it doesn’t end there. The next thing is you do a home invasion…By having a girl set him up, and you and your boy rob him. So each one of ‘em is worse—and it gets worse, and it gets worse, and it gets worse. You go back and you hang out with the same guys, and it gets worse, over and over and over again.”

    Nevertheless, the prosecutor recommended and the judge accepted a term of five years in return for a guilty plea. The maximum penalty for the home invasion alone was 25 years. The sentencing guidelines (prepared by the prosecutor) recommended 15 to 25 years.*

    I then searched for other cases by the same prosecutor and found these dismisseed cases:

• A woman stabbed in the stomach by another woman (an incident caught on an outdoors pole camera.)

• Two convicted felons in a vehicle with an illegal firearm. 

• The attempted murder of two persons by firearm. 

    I wondered: was the claim of a 90% conviction rate accurate? And how many of those convictions were obtained by plea deals like Brinkley’s?

    To shed some light, I tracked 430 cases collected from 21 felony dockets in August and September 2021, with the following results:

• A conviction rate of 72%. (The rate could be much lower than that, as will be explained.)

• 98% of convictions were plea bargained.

    Plea bargaining is a necessary practice to move a volume of cases through a crowded criminal justice system. But what kinds of deals are being made, and which cases are worth fighting for in a trial to get a better result? Mosby’s office only took 11 of those 430 cases to trial (with 8 convictions.) A study of the 303 plea bargains revealed the following:

• Percentage of convicted persons free after plea bargain: 70
• Gun-related crimes: 49
• Violence (no gun): 66
• Felony drug dealing: 90
• Sex crimes: 70
• Percentage of probations with only two years supervision or less:
• Gun-related crimes: 45
• Violence (no gun): 40
• Felony drug dealing: 86
• Prison time, average number of years through plea bargains:
• Guns with drug dealing (imposed 50% of the time): 4.5 years
• Guns in violent crimes (imposed 74% of the time): 9.8 years
• Felony assault, Robbery, Carjacking : 4.3 years
• Attempted murder: 12.5 years
• Murder: 18.25 years
• Felon in possession of a firearm (imposed 61% of the time): 4.7 years
• Possession of a firearm (imposed 31% of the time): 3.5 years
• Violent crimes (no gun) (imposed 36% of the time): 5.3 years
• Felony drug charges (imposed 9% of the time): 4.1 years
• Sex offenses (imposed 33% of the time, but small sample): 3.7 years

    These results suggest that Baltimore prosecutors, working in a city rife with violent crime, are extremely lenient. The same criminals are committing crimes over and over.  And these cases don’t even tell the whole story: another 111 cases - 20% of all the resolved cases - have no results. Why? The Maryland General Assembly has seen fit to hide the information from public view.

Case Search and Expungement Laws
While defendants always had limited rights to apply to expunge certain offenses from their records, new laws that went into effect last fall automatically block the public’s access to even more criminal justice information.

    First, expungement has been expanded to automatically remove from public view any case that results in a nolle prosequi or acquittal. Nolle prosequi, or nol pros, means that the prosecutor is dropping the case. This law applies to nol prossed cases that are three years old, but expungement can be accelerated if the defendant files a Release agreeing not to sue others for the charges that were filed. However, if a defendant is convicted on any one count in a case, the case cannot be expunged. (Hopefully, prosecutors can see the expunged cases on local rap sheets. Having a full picture of arrests is critical to making informed judgments on the dangerousness of an offender.)

    Second, Case Search will immediately expunge every count in a case that results in nol pros or acquittal. Case Search is maintained by the judiciary and, as its website proclaims, “is the primary way that the public may search for records of court cases.” But Legislators have gone beyond the expungement law to (1)make a nol prossed case immediately disappear from view, and (2) block the ability to evaluate a plea bargain even when there is a conviction. For example, if a person is charged with Armed Robbery, but pleads guilty to misdemeanor assault and theft, the nature of the original offense is obscured. One might think the offender could have been arrested for petty theft and then pushed the arresting officer.

No doubt these expungement laws had a noble purpose behind them. But such widespread opaqueness may not serve the personal safety interest of ordinary citizens. And it most definitely shields public law enforcement agencies from accountability.

Consequences of Case Search Expungement
Ordinary citizens. I can easily think of three situations (and plenty more exist) when a member of the public should have access to Case Search and automatic expungement should not apply:

• A victim in a case where the prosecutor drops the case behind the victim's back.

• A family that wants to rent out its basement apartment. Legislators may think it irrelevant that the defendant was recently charged with gun possession and drug dealing. The family would not.

• A woman in a dating relationship could never find out that prosecutors twice dropped domestic assault cases against other women.

    Proof beyond reasonable doubt is an appropriate standard in a criminal trial when a person's liberty is at stake. But the standard prosecutors use to charge - that is is more probable than not than a person committed a crime - is relevant to ordinary citizens making decisions about their safey.  

Conviction rate. Let's be clear: not counting dropped cases in conviction rates misleads the public. While legitimate reasons exist for not pursuing cases, when prosecutors charge cases and then abandon them they should explain. Otherwise high conviction rates can be achieved simply by dropping many and plea bargaining the rest away, trying as few cases as possible. Exactly what this study reveals.

    I can only report on 430 cases because another 111 disappeared from Case Search. Some of them may have been transferred to federal or juvenile court, but most were likely just dropped by city prosecutors. If only 80% were dropped, the conviction rate for felony cases that prosecutors charged would be closer to 60%. But without knowing for sure we can't accurately calculate the conviction rate.

Prosecutorial accountability.  Lack of information to Case Search shields prosecutors from scrutiny of their case handling.

    As noted above, the prosecutor in the Brinkley case dropped three additional cases involving violence or guns. We would not know about them had the new expungement laws then been in effect. In cases tracked since August he has dropped gun possession and attempted murder cases which are now invisible on Case Search.

    In another case with another prosecutor, a woman fired a gun at her domestic partner. The shooter had a prior record for domestic assault, a violation of probation, and had violated home detention while the shooting case was pending. Nevertheless, the prosecutor offered and the defendant accepted a plea to probation for misdemeanor assault and reckless endangerment. The judge refused to accept the plea because the charges did not reflect the seriousness of what happened. In response, the prosecutor dismissed the case. ("Unbelievable" said the judge.) This case has now disappeared not only from Case Search but from all court records. Presumably, the defendant filed a waiver to accelerate automatic expungement.

    The same prosecutor, who appears to specialize in domestic violence cases, pled another case to misdemeanor assault for unsupervised probation without a conviction. The original charges are now gone. From the charge and sentence one might think this was a minor case. But the defendant, along with her boyfriend, physically attacked the mother of her boyfriend’s baby, beating her up and fracturing the eyesocket of the baby she had been holding.

    This is the same prosecutor who recently made news for pleading a man to probation who set fire to his girlfriend’s house while she slept inside. When cases or serious charges disappear, the public can't discern a pattern of giving away cases.

    These results come from the “Gun Violence Enforcement Division” and the “Special Victims Unit” of the Baltimore City prosecutor’s office. How well can the performance of these units, or the office as a whole, be assessed when nol prossed cases are hidden and plea bargains obscured?

More Cases
884 total cases were collected from 21 dockets in the Reception Court of the Baltimore City Circuit Court in August and September, 2021. 344 cases were still pending as of December 31. In addition, cases collected from eight felony dockets in January and February of this year are being tracked.

    More results to come.

*Addendum:  Six months after his plea bargain on the home invasion, Brinkley received an additional 12 years for violating probation on an armed robbery conviction.  This was not part of the plea bargain - in other words, the prosecutor took a chance that the judge who had Brinkley on probation would give him all of the 12 years that were suspende.  The prosecutor should have tried the home invasion case and pressed for the maximum sentence in light of Brinkley's record.  Instead, he gave the case away, preferring instead that Brinkley take his chances with the probation judge.  The plea was a disgrace - and, unfortunately, typical.