Md. has been shielding certain arrest records

Decision is now putting the public in danger

In June of 2020, a woman in West Baltimore fired a gun at her domestic partner. She had assaulted the same partner three months earlier, was a convicted felon and had violated probation and home detention. Police found evidence that corroborated the shooting.

Nevertheless, when the case came to court, the prosecutor offered, and the defendant accepted, a plea to probation for charges of misdemeanor assault and reckless endangerment. My review of video of the court proceeding revealed that the presiding judge refused to accept the plea because the charges did not reflect the seriousness of what had happened.

In response, the prosecutor dismissed all the charges.

“Unbelievable,” said the judge.

Yes, it was. But no one today would find any evidence that these incidents ever occurred, thanks to laws passed by the Maryland General Assembly that went into effect last year.

First, the legislature expanded the law on expungement to, beginning Oct. 1, 2021, automatically expunge any case that prosecutors drop or that results in acquittal after three years or sooner if the defendant files a waiver agreeing not to hold anyone liable for the charges against him or her. That means no member of the public can access the record. (Expungement does not apply if a defendant is convicted on any one count of a charging document.)

Case Search, the Maryland judiciary’s online archive of court cases and “the primary way that the public may search for records of court cases,” according to its website, goes even further to block information from the public. As of January 2021, criminal and traffic cases that prosecutors abandon or dismiss, or the defendant is acquitted or found not guilty, are suppressed from view in the archive, leaving no public record of the arrest.

This goes beyond automatic expungement in that (1) a dismissed case instantly disappears and (2) any count not resulting in conviction also disappears. Not only can’t the public see when prosecutors completely drop a case, we can’t determine what counts were dismissed in a plea bargain.

I can easily think of three examples why this does not serve the interest of ordinary citizens:

If the defendant in the shooting case I mentioned tries to enter into a new domestic relationship, her would-be partner could never learn that prosecutors had twice dropped domestic assault cases against her.

If a family wants to rent out their basement apartment, they can’t discover that a potential tenant was arrested for selling drugs and possessing a gun. Legislators may think this irrelevant to the family’s decision, but the family would not.

If a prosecutor dismisses a case without telling the victim, the victim can’t learn that from Case Search; it will look as though the case never existed.

I only knew about the domestic shooting case because I had already recorded the case number for a study I was doing on conviction rates. The court file was still available, as was the video of the court proceeding. But when I went back to confirm some facts, it was too late. Gone! The defendant had (presumably) filed a waiver.

Gone also is prosecutorial accountability. When I tracked more than 500 cases to their conclusion at the end of 2021, a full 20% had disappeared from Case Search. While some would have been dismissed because they were transferred to juvenile or federal court, most would have been dropped altogether. But without confirmation, they can’t be fairly counted. The conviction rate I could confirm for the Baltimore State’s Attorney’s Office is 72%, but it is more likely closer to 60%.

Is it in the public interest to conceal this information, or to hide, for instance, armed robbery cases that are plea-bargained to misdemeanor assault and theft?

Recently, a case hit the news about a man who was freed on a plea bargain after setting fire to his ex-girlfriend’s house. I guessed who the prosecutor was before I was told because my study showed that he had handled a number of dropped domestic violence cases and wildly generous plea bargains, including the domestic shooting case. That pattern is now obscured.

Legislators should revisit automatic expungement and Case Search both for public safety and government accountability. Helping people who did stupid things when they were young is one thing. Expunging case information for those charged with violence and dangerous crimes is quite another. Our lawmakers need to strike a different balance.