Maryland Bar Bulletin
Publications : Bar Bulletin : September 2008

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You have probably read or heard a great deal recently about Maryland’s State Prosecutor investigating Baltimore’s mayor, Sheila Dixon. But who is the State Prosecutor? What does the Office of the State Prosecutor do? Does the State Prosecutor only go after public officials or are private citizens also targets? What does a criminal defense attorney need to know about this unique and unusual law enforcement entity?

As of October 1, 2008, the State Prosecutor can issue his own subpoena for documents with the same authority as the State's Attorney.

 


The Office of State Prosecutor was created in 1976 when the General Assembly passed a Constitutional Amendment and enabling legislation. The Office grew out of a number of high-profile political prosecutions of elected officials and was created, in part, to create a non-partisan entity to prosecute certain kinds of crimes.

Unlike the Maryland Attorney General or County State’s Attorneys, the Maryland State Prosecutor is not elected but is nominated by the State Prosecutor Selection and Disabilities Commission and appointed by the Governor for a term of six years. His term overlaps gubernatorial terms so that the State Prosecutor cannot be removed by the Governor, except after a hearing on charges levied by the Commission.

Our state’s current State Prosecutor is Robert A. Rohrbaugh, Esq., who was nominated and appointed by Governor Ehrlich in 2004. Rohrbaugh commented, “As the only non-elected prosecutor in the State, the State Prosecutor does not need to be concerned about offending campaign contributors or politicians when deciding whether to bring a charge. And, because the State Prosecutor cannot seek any State or local office for three years after he leaves the State Prosecutor’s Office, the State Prosecutor cannot use the position to further any personal ambitions for higher office.”

Maryland law provides that the State Prosecutor can involve himself in certain types of criminal offenses, typically election law violations, ethics law violations, bribery and misconduct of public officials and related multijurisdictional offenses. The State Prosecutor can act on his own initiative or at the request of the top state officials, the State Ethics Commission or a local State’s Attorney.

Unlike most prosecutors, though, the Maryland State Prosecutor cannot file charges without first submitting a report and recommendation to the Maryland Attorney General and local State’s Attorney, unless they are the focus of the investigation. Only after the State’s Attorney has refused to file charges or waives the 45-day review period can the State Prosecutor proceed. Although State’s Attorneys generally waive the 45-day review period, this waiting period may lead to a delay in prosecution.

Generally, the State Prosecutor has all of the powers of a State’s Attorney, including the use of a grand jury. Like State’s Attorneys, he can subpoena witnesses and documents through the grand jury. And, as of October 1, 2008, the State Prosecutor can issue his own subpoena for documents with the same authority as a State’s Attorney. However, unlike a State’s Attorney, the State Prosecutor does not have the authority independently to request a Court to grant use immunity to a witness.

Most of the investigations of the State Prosecutor are performed by staff investigators and analysts. Currently, the State Prosecutor has nine investigators, including three persons who work in the Office’s computer forensics laboratory. The computer forensics laboratory has been in existence for only two years, but has been an “invaluable tool” in white-collar investigations, according to Rohrbaugh.

While the State Prosecutor makes headlines for investigating public officials, private citizens can also be targets. In the past few years, the State Prosecutor has obtained convictions of 12 individuals, including the public official and the private contractors, who were involved in bribery schemes relating to the Baltimore City schools. Not only were substantial jail sentences imposed in those cases, but the State Prosecutor recovered over $4,000,000 in restitution for the schools, in addition to having the defendants contribute $250,000 to a charity for the benefit the underprivileged Baltimore City school children. The current State Prosecutor has also been active in prosecuting persons who have violated the state’s campaign finance laws. Over the past four years, the total civil fines imposed for the violations of the election laws is almost $250,000.

Defense counsel representing clients who have been approached by the Maryland State Prosecutor need to familiarize themselves with Maryland law creating the office and understand the intricacies of this unique law enforcement entity.

Andrew Radding is a member and Gregory M. Kline is an associate in the law firm of Adelberg, Rudow, Dorf & Hendler, LLC. They concentrate their practices in the areas of criminal defense and civil litigation. The authors wish to thank Robert A. Rohrbaugh for his cooperation in preparing this article.

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Publications : Bar Bulletin: September 2008

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