Best of 2020: I'm a public defender. My elderly client might die in prison from COVID-19

Our 2020 retrospective continues with this essay on why releasing some from prison won't fix a broken system

Published December 23, 2020 5:59PM (EST)

 (Photo illustration by Salon/Getty Images)
(Photo illustration by Salon/Getty Images)

This essay was originally published in Salon on August 29, 2020. We're revisiting Salon's Best Life Stories of 2020 now through the end of the year. Read more Best of 2020 here. The opinions expressed in the article are the author's own and do not constitute a statement from the Maryland Office of the Public Defender's office.

Ironic as it seems, COVID-19 is a constant threat to the 73-year-old life of the man I'll call Jake Green, yet it's also his best shot at release from an unjust prison sentence. Mr. Green's case will forever be lodged in my mind because it stands at the intersection of so many issues in the justice system: aging individuals in prison, victims' rights, domestic violence, firearms, overcharging, pretrial incarceration, mandatory sentencing, parole eligibility — and now, COVID-19 running through prisons. Simply put, I don't want him to die in prison. But I'm not having much luck getting him out. 

I met Mr. Green in May of 2019. He is one of the most unique people I've represented in my 17-year career as a public defender in Baltimore City. In case you were wondering, because some folks do, we PDs are "real lawyers." We have the exact same schooling as every other attorney. The difference is that we don't pick our clients. They come to us randomly. They are indigent folks, people without incomes or people stuck in jail who qualify for our services. I just get the file and go from there — no matter the charges, be it drugs or murder. 

I volunteered for my office fresh out of law school and really liked my colleagues — smart, blunt, open-minded folks willing to buck the system — but what has made me stay are the unchanging systemic hurdles that my clients face. Are we stretched thin at times? Sure. But most private attorneys are, too — and they have to run all over the state chasing dollars while we don't. In my office, our lawyers try the majority of the criminal cases in the city. We know our way around a courtroom. I've found that when you stand up for your clients in court you quickly earn their respect and dispel any lingering negative stereotypes.  

Mr. Green was one of over a hundred or so clients whose cases I handled at some point over the last year. He is a 73-year-old man without a prior criminal record. His craft is millwork. He has used his hands over the years to do all sorts of home improvement and residential renovation work, but was always best at wood work. So when he moved to Maryland from his native North Carolina more than 30 years ago, Mr. Green found jobs as a cabinetry contractor. He scored some larger-scale projects for big home builders around the state, but also established a shop in the heart of Mount Vernon in Baltimore City, where he has always done custom work.

In recent years, as he's aged, Mr. Green's work has slowed (the cluttered, unkempt appearance of his workshop reflects that) and his income is largely based on social security checks. Mr. Green is a proud Native American of the Lumbee Tribe. He was raised in Native culture and still carries on its traditions. He was even arrested for my case while wearing a Lumbee reunion shirt. Mr. Green is an avid hunter who participates in state-sponsored deer and bear hunts. Mr. Green has a loving family including a daughter, Karen, who lives in North Carolina. He has a longtime girlfriend of over 30 years with whom he shared a house in Maryland up to his arrest. His longtime girlfriend's daughter considers Mr. Green a stepfather. Everyone just calls him "Jay." And no one I spoke with believed that he would ever intentionally shoot someone. 

In our case, Mr. Green was convicted of first-degree assault, the use of a firearm during a crime of violence and reckless endangerment. We had a jury trial last October. In January, the trial judge sentenced him to five years without parole, dating back to May of 2019. His sentence is a mandatory minimum sentence because of the gun charge. He got the minimum and nothing more, but it is still extremely problematic for many reasons.  

The incident involved an alcohol- and crack-induced tryst between my client and his girlfriend of over five years. (Mr. Green also had another girlfriend, with whom he had a 30-year relationship.) Mr. Green and Girlfriend Number 2 were hanging out at his workshop in Baltimore, where they would rendezvous. He was prone to imbibe (as was she). They started arguing and fighting. They might have been there for several hours before the actual fight, but their inebriated memories of the incident are a bit foggy. My client keeps a hunting shotgun, a Ward's Western Deluxe model, in his shop for protection. (We are talking Montgomery Ward, the department store.) It is legal. He's been robbed before so he has it there for protection. At some point during the argument (during which my client was admittedly drinking, and she admittedly smoked crack), she says he grabbed the gun and threatened her. The weapon went off, but hit her in her shin because it was pointed down at the time of firing. My client's contention — which her injuries and her medical records support — is that the gun was loaded with birdshot. However, the State would not concede the point, despite the victim just having pellet wounds rather than missing an entire limb. 

The girlfriend says my client initiated the fight by pushing her and smacking her phone down, which Mr. Green denies. The girlfriend also hid the fact that she smoked crack from everyone until she told us in a meeting before trial and then conceded as much, along with drinking, on the witness stand. She also agrees that she has psychological problems. She and Mr. Green didn't connect with the police after she was shot. She called her family, who drove her a couple of blocks up the street to the hospital. My client walked up and met them there. Hospital staff summonsed Baltimore police because it was a shooting. The cops found out my client was there and went to talk to him, with body cameras on. He was still drunk, but by all means coherent, and he admitted to accidentally shooting her. He even offered to take the police to the gun. Instead, he was arrested and has been incarcerated since. The victim has essentially recovered. 

Where to begin with all of the issues? First, the victim in the case, his girlfriend, did not want the case prosecuted. She said as much before the trial, which we argued during a bail review hearing to no avail. She reiterated this during the trial — in front of the jury — and at the sentencing, to the judge as our witness. She actually met with me and my investigator on several occasions to prepare the case. Yet, the State insisted on prosecuting. (Mr. Green's girlfriend is Black.) It's really interesting when the State takes a position like this when their default stance is to push a victim's rights agenda. So many times, I've heard the refrain that the state has to "see what the victim wants." Maryland legislators even made it a prerequisite to criminal sentencing that a victim — and that term is often made broader than just an individual, by prosecutors and judges — gets to weigh in. The now ubiquitous, nationwide court victim impact statement was referred to in a 2018 New Yorker article by Jill Lepore as a "signal victory" for the victim's movement, born out of an unlikely marriage between feminism and conservatism. Yet, when it came time for sentencing several months after the trial, our victim was not offered up by the state to make an impact statement. However, she consistently kept in touch with me for updates on how Mr. Green was doing, and I had to bring her in as a defense witness to speak to the judge. 

Second, the case was overcharged by the prosecutor as a second-degree murder, which immediately makes a defense extremely difficult to argue to a jury knowing that higher counts make a compromise verdict more likely: Jurors think that they are sparing Mr. Green by not convicting him on the murder charge, but have no idea that first-degree assault still carries 25 years, and the gun charge has a minimum sentence attached. (We were OK with the misdemeanor assault charge, but the weapons and murder charges seemed excessive.) To say that Mr. Green intended to kill is a joke.

Contrast my client's charges with those of prominent police murder cases and the way they are charged. For instance, it's pretty hard to watch the video of George Floyd's killing with a knee and not question why first-degree murder isn't the top count. Along the same lines, the left-field theory of a second-degree, rough-ride killing of Freddie Gray similarly stunned those of us familiar with the justice system in Baltimore. We know that if our clients — men like Mr. Green, or the typical young Black men I represent — had been accused, the case never would be under-charged like that. It would be first-degree all the way — or in Mr. Green's case, second-degree instead of just assault. 

Third, the prosecution was unrelenting; they classified the case as one of domestic violence. The state wants to determine what is best for a victim in all domestic scenarios, in a paternalistic sort of manner. So, despite the victim not wanting the case to go forward, or to put my client in jail, the state did not care. University of Maryland School of Law Professor Leigh Goodmark astutely refers to domestic violence as the "third rail of criminal justice reform." In my experience, non-domestic violence cases similar to Mr. Green's have hopes of working out, but domestic violence has achieved its own category of untouchability. Professor Goodmark noted in her New York Times article that giving these types of cases special statuses hasn't reduced such crime. Coming down so hard on a one-time incident fueled by drugs and alcohol doesn't serve as a deterrent. This is retribution on the part of the state, pure and simple. But for whom, when the victim doesn't want it? To question the logic behind such heavy-handed prosecutions is essentially blasphemy —especially when raised by a scary male defense attorney like me. 

Fourth, the state would not offer anything less prior to trial than a plea of three years for a felony. My client had no criminal record in his 73 years — not the 30 spent in Maryland, nor prior to that in North Carolina. He's even served as a juror for a murder trial. He's lived in the same house (with his other girlfriend) almost the entire time he's lived in Maryland. The longtime girlfriend, her daughter, and my client's own family all knew of the charges and the affair, and still completely supported him. The victim's family has also been helpful to us during the trial, knowing that we were trying to get my client out. Mr. Green didn't see much difference in three years versus five at his age. He'd have taken probation, which makes sense for the crime and the circumstances. 

Either way, we lost the trial. My arguments were only so effective without being permitted to say to the jury, "this is stupid" or "Dick Cheney did worse with a shotgun" or to outright explain to them which counts could instead get Mr. Green home.

The judge had no option on the mandatory sentence for the firearm charge, which is why mandatory sentencing is so problematic. It removes discretion from the equation and, with this charge, lumps all firearm offenses together without taking into account each particular defendant and incident. However, the judge could have ordered the sentence served on private home detention. We set that up, but the judge said no. It's rarely done, but so is sentencing a 73-year-old to prison in a case like this.

The judge could have let my client out on an appeal bond, which does happen sometimes. Again, the victim testified for us at the sentencing hearing, which is a total anomaly. Juxtapose my client, an average nobody, to Michael Gentil, a former Baltimore cop coincidentally on trial and convicted of the same gun offense in the same courthouse only the week before Mr. Green. Both received the same mandatory five-year sentences without parole. However, Gentil's judge allowed the police officer to go on home detention while his appeal works its way through the courts, while Mr. Green sits in prison. Gentil is at home now. Meanwhile, we've got an aging individual with legitimate appellate issues incarcerated while COVID-19 lurks. Don't tell me that's not a slap in the face. 

Mr. Green has been in jail for 14 months. My client has not felt well in a long time. There are dozens of documented COVID cases in his prison and someone has even died there. Recently, he was hospitalized (a false alarm, apparently) and he had to be quarantined for about three weeks. Now, he's right back in general population, living in a dorm unit with bunk beds set only a couple of feet apart. The inmates each have one mask, which they have to keep clean themselves. But mask wearing is not enforced while in the dorm.

Mr. Green was a smoker for years and has hypertension and high blood pressure. He is falls under the CDC's classifications for high risk individuals. So I filed a motion to modify his sentence to home detention or to release him pending his appeal, which is what we wanted before. The state — despite Baltimore City State's Attorney Marilyn Mosby's public statements on releasing vulnerable individuals — will not agree. Our trial judge is not hearing motions because courts are severely limited in function. I went to a telephone hearing without my client, with a stand-in prosecutor and a new judge, in which our motion was essentially denied. That was before my client was hospitalized. After that, I refiled the motion with a statement from the victim, who calls me about once a week in support, but again, the trial judge shut us down with an emailed ruling. 

COVID-19 has forced judges to reconsider holding our clients pretrial in many circumstances that never got second looks before, yet often merited them. I've had multiple clients released on home detention over the past several months  — which they must pay for, but it's better than jail — and a couple who have been released to the community. And guess what? Nothing bad has happened. Taking that into account only reinforces a new level of cold justice for Mr. Green. The victim, his girlfriend, says she wants to write the judge to ask for his release because she's worried about his health. 

Mr. Green is ineligible for Governor Hogan's ordered release of vulnerable inmates because of the classification of his charges as violent. These types of classifications never explore the facts or circumstances of a case, or take into account what the victims want. They simply go by the superficial label of the offenses, and Mr. Green's are prohibited. There's no compassionate release possible with the charges either. The modification is our only shot at this point. Without the virus, we'd have nothing. My client is still in good spirts because that's his nature, but I find this extremely frustrating and pointless. Everyone wants him out, but the state and court won't agree. As prison conditions with the virus and my client worsen, all we can do is just keep filing motions. 

By Todd Oppenheim

Todd Oppenheim has worked for the Maryland Office of the Public Defender in the Baltimore City Office since 2003. Todd started as a volunteer clerk and has worked his way up through adult court. He has worked at the jail doing bail reviews, handled misdemeanors, and now specializes in felony cases. Todd is currently a supervising attorney in the Felony Trial Division. Todd has tried over 100 jury trials and litigated countless judge trials, hearings, and motions. He also completed the National Criminal Defense College in Macon, Georgia in 2010. Additionally, Todd frequently writes and speaks in the community about equal justice issues. He has lived in Baltimore for over 20 years. Opinions expressed in the article are Todd's.

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