Posted On: February 13, 2012 by Brian G. Thompson

Appeal to be Filed in False Statement Case

Experienced Maryland Criminal Attorneys do not generally make it a practice to advertise cases we lose but I had one the other day that I think merits discussion, the outcome not withstanding, both because it was an interesting case and because it offers an opportunity to discuss the " de novo" appeal process in the District Courts of Maryland. In English, that means that if a person who is convicted in the District Court is dissatisfied with either the verdict or the sentence, he has the right to a brand new trial in the Circuit Court. That's right, the appeal is not "on the record" such as it is in cases that are appealed from the Circuit Court to the Court of Special Appeals. Instead, the case starts all over again in the Circuit Court.

This may sound incredibly inefficient to someone who is not acquainted with the system as it sounds as if every case has to be tried twice. In practice, the exact opposite is true. Indeed, it is the very fact that we have de novo appeals that affords litigants the opportunity to take a shot in the District Court, even if the posture of the case or the judge is not ideal. If you win the case, it is obviously over but even if you lose you get another shot at it in Circuit Court. Not only that, a record now exists of exactly what the State's witnesses will say. This is an invaluable tool in a State where criminal depositions are almost never done. In practice, most litigants accept the decision of the District Court as even the majority of those who are convicted are not sent to prison. The result of all of this is that most of the cases docketed in District Court are resolved there instead of ending up in Circuit Court. I had a case in the District Court for Baltimore County last week that, for reasons I am confident will become clear to the reader, I decided to take a shot with even though the situation was not ideal. Here are the facts.

My client was charged with making a false statement to a police officer. He initially contacted the police and reported that he was beaten and robbed by two men. Specifically, he claimed that he was walking down the street when someone struck him from behind in the head causing him to fall to the ground. He described his assailants as one black male and one Hispanic male. He provided relatively detailed physical descriptions of each but advised the officers that he did not know either man. He claimed that after being struck from behind the black male went into his pockets and stole approximately $200.

During the course of the investigation, the detectives became suspicious and advised my client that they believed he had not told them a completely accurate story. They urged him to come clean and set the record straight. On day two of the investigation, my client did just that. He met with the detectives again and advised that he had in fact not told the whole truth regarding the incident. He advised that the facts as alleged were true with a couple of exceptions. He advised that he did in fact know the men who robbed him, at least by their street names, which he then provided to the detectives. He advised that after they struck him they reminded him of a 4 year old drug debt that he did in fact owe them. After repeatedly threatening him with further violence he reached into his own pocket and handed the men the $200. Everything else, he claimed, occurred exactly as he first described.

The police charged him with making a false statement to a police officer. When we arrived in court last week, my initial inclination was to ask for a postponement or to request a jury trial as it was my belief that we had not drawn the best judge for this type of case. After discussing the matter with Assistant State's Attorney however, I changed my mind. The reason for this was that the prosecutor agreed that because my client had no criminal record, he would not to ask for incarceration if he prevailed. As much as I didn't believe the judge was the ideal decision maker for the case, I was equally confident that he would not put my client in jail if we lost given his lack of a criminal record and the State's Attorney's agreement not to recommend incarceration. Given that there was little to no risk of incarceration and the fact that my client would have the right to a de novo appeal if we lost, we decided to take a shot.

The State and the defense essentially agreed that the facts of the case are as I have described herein. The question in the case was whether my client's conduct violated the false statement statute. I believed (and still believe) that it did not.

The Maryland false statement statute, Criminal Law Section 9-501, is very unlike the federal false statement laws which essentially incriminate any falsehood told to a law enforcement officer regardless of who contacted whom and whether that statement is material to the crime being investigated. Under 9-501 a false statement is only criminal if the report or statement is false " as a whole or in material part" AND that the intent of the person making the false statement is to "deceive and to cause and investigation.." My argument to the court was that while my clent did lie about some of the details, the statement was not false "as a whole or in material part". I argued that the material facts were that he was assaulted and had his money taken. These were the facts that caused the police to conduct an investigation. The fact that he had some knowledge of his assailants and their motive for attacking him, while certainly important, were not the material facts that caused the investigation. Said another way, the police certainly would have commenced an investigation even if he had told the whole truth from the beginning.

The prosecutor argued that he did in fact believe that the these were material facts. While he conceded that police would have investigated the case even if he had told the truth from the beginning, he argued that the false statements may well have caused the investigation to go in the wrong direction or be prolonged. While this argument is a good one and its premise is undeniably true, it cannot outweigh the plain language of the statute. The legislature, I argued, could have very easily made any materially false statement to a law enforcement officer a crime by simply saying just that. As I noted herein, that is essentially what the law is in the federally system. Just ask Martha Stewart or Scooter Libby. Instead, the Maryland Legislature chose to only criminalize those false statements that are false "as a whole" and designed to cause an investigation to commence. My client was assaulted and robbed and he reported those facts accurately. The fact that he concealed some facts from the police to protect himself from becoming a target of the police is wrong but understandable. It also is, at least in my opinion, not a violation of Section 9-501.

The judge, as predicted, disagreed with my argument and found my client guilty. He also, as predicted, followed the State's recommendation and gave him probation. In other words, no harm, no foul. It obviously would have been better for the client to have won the case that day and be able to put it behind him. But he is in no worse position than he was before we took our shot. He now gets a brand new trial in Circuit Court. The only difference this time around will be that he now has a blueprint of exactly how the State intends to prosecute him.

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