Did prosecutors silence a progressive activist under the guise of enforcing an obscure law? That’s the issue PAR explores as we look at the case of a pot legalization activist who was charged with two felonies for livestreaming an encounter with a conservative congressman’s aide during a protest.


Transcript

Taya Graham:        Hello, my name is Taya Graham. As the host of the Police Accountability Report, I always promise that this show has a single purpose: holding police accountable. And sometimes keeping that promise requires a follow-up to a story that we’ve reported on before. I mean, think about it, you can’t hold the politically powerful institution of law enforcement accountable if they don’t think you have the tenacity to keep reporting on their misdeeds.

So, this brings me to the story from the past that we’re going to highlight today. It’s a tale that starts with the prosecution of a young college activist. His name is Jake Burdett. His crime: Streaming the comment of a congressman’s aide during a protest on Facebook. Now, before we replay our interview with him and explain the circumstances of why he was charged with, wait for it, felony wiretapping, I also want to give you a little background on some important breaking news that makes this story even more vital.

The ordeal for Jake started when he attended a protest outside of the office of conservative Congressman Andy Harris. He was there because Harris was trying to block the efforts of DC residents to legalize marijuana, which the residents had voted to enact. The protestors met with one of the congressman’s aides in his office. And even though the public officials office asked the activist not to record the encounter, Jake did, and the felony wiretapping charge came as a result of Maryland being a two-party consent state for recording any communication.

What happened due to that decision is an example of the scary power and the constant overreach of prosecutors. And just for the record, when Jake was asked to take the Facebook recording down, he did within minutes of being asked. But the other reason we are covering the story again is because of some new developments regarding the office that prosecuted Burdett. Just recently, Maryland’s highest court ordered a special hearing to determine if the same prosecutors who charged Burdett, engaged in misconduct in a different case. And for more on this, I’m joined by my reporting partner, Stephen Janis. Stephjen, thank you for joining me

Stephen Janis:    Taya, thanks for having me, I appreciate it.

Taya Graham:        So, Stephen, can you tell me about the recent decision and what the court ruled?

Stephen Janis:      Well, first let me establish that Kelvin Sewell was the first Black police chief of Pocomoke City, a small town on Maryland’s Lower Eastern Shore. It’s about half white and half Black, about 4,000 residents. He implemented a style of community policing which was very popular. He had his officers get out of their cars and walk and talk to the community, and crime went down. In 2015, he was fired by a nearly all-white city council. And to this day, they haven’t said why they fired him, but it created a lot of controversy.

But during the time when Kelvin filed a discrimination lawsuit against the State of Maryland and the City of Pocomoke, prosecutors filed charges of police misconduct against him, alleging that he’d interfered in an accident involving a Black Mason, who he was in the same Mason’s organization with, involving two parked cars. That’s it. The case alleges that Kelvin intervened on behalf of his friend, that he should have charged him with something. Of course, all that Doug Matthews did, who is the man who was in the accident, was hit two parked cars and drive home a couple blocks and call police. But they made it into this big thing about corrupt policing and that Kelvin was corrupt. So, it’s really a strange case. A lot of people say it’s retaliation for Kelvin filing a discrimination lawsuit against the city and against the state.

Taya Graham:       Now, the court says there is some evidence of prosecutorial misconduct. What did the court cite?

Stephen Janis:      Well, the court said that first of all, there is evidence provided by Kelvin himself, an affidavit, and one of his associates, an affidavit that recounts that Tanya Barnes, who was a key witness in the case, said that prosecutors forced her to lie. They also tried to cite us as sources of evidence because we tried to interview Tanya Barnes about these allegations. She refused to talk to us. So, we really have nothing on that. But that’s what they cite as the evidence, and of course the prosecutors have notes from investigators that said that Tanya Barnes was an unreliable witness who was under suspicion for taking some money from a drug fund. So, there was a whole lot of evidence that they knew that Tanya Barnes would be a problematic witness, including the words from Tanya Barnes herself.

Taya Graham:            So, what happens now?

Stephen Janis:         So, now the case goes back to Worcester County Circuit Court, where it’s up to Kelvin’s lawyers and the prosecutors if they want to have this hearing about prosecutorial misconduct. What’s unusual about this is that they did not vacate the conviction. They only gave Kelvin the chance to fight this in court, down in Worcester County, and if he wins, then he’ll get a new trial. If he loses though, the conviction stands, so it’s not really a great outcome for him and there’s much to be seen as to what will happen next.

Taya Graham:           Now, in light of the information Stephen shared with us, we’re going to show you an interview and report about the case of Jake Burdett we produced two years ago. It’s a show we originally aired in 2019, but is now more relevant than ever and deserves to be seen again. As always, please like, share and comment, and I will try to respond to your questions. It really does help us and we really appreciate it. Thank you. Now onto the rest of the show.

[VIDEO CLIP BEGINS]

Taya Graham:         Hello, my name is Taya Graham, and welcome to the Police Accountability Report. Today we’re going to shift a bit and focus our attention on another aspect of the criminal justice system that has an outsized influence, but rarely gets the attention it warrants. I’m talking about prosecutors, the legal gatekeepers of our criminal justice system. Prosecutors play a pivotal role in how our laws are adjudicated and even more critical, the duty of holding police officers accountable for their actions. In fact, as we’ve reported before on the show, Baltimore’s top prosecutor, Marilyn Mosby, disrupted our city’s penchant for making racially biased marijuana arrests by refusing to prosecute possession cases.

Marilyn Mosby:            Even since the decriminalization of marijuana in October of 2014, there still is this desperate sort of enforcement. So, just recently the ACLU put out another report in which now, legally, if you have less than 10 grams of marijuana, you are given a civil citation. Well, the Baltimore police department in 2015 issued citations to about… 89% of those citations that they issued were to Black people.

Taya Graham:            It’s just one example that shows how important prosecutors are to maintaining a fair and balanced system of justice. That’s why today we’re going to focus on a prosecutor who’s made some controversial decisions to charge cases that have tipped the scales the other way. Decisions that show just how important it is to pay attention to how these so-called legal guardians choose to implement the law.

So, let’s start with some background. Maryland state prosecutor, Emmett Davit, has a unique role in the state’s legal system. He’s a quasi-special prosecutor, tasked with investigating corrupt politicians and government malfeasance. But it is his decision to prosecute two less high profile cases that is the topic of our show today. And it shows just how easy it is for a prosecutor to take an already racist and fraught criminal justice system and make it worse.

The first case involves what would seem like a basic American right: holding government officials accountable. That’s what a group of marijuana activists were doing when they apparently committed a crime so heinous, state prosecutor Davit chose to prosecute a college student. That’s right. Our state prosecutor, tasked with investigating corrupt politicians, chose to use precious resources to go after a student activist and charge him with a felony for using Facebook Live. And to tell us how that happened and the consequences, we are happy to be joined by our guest Jake Burdett.

Burdett is a student at Salisbury University on Maryland’s Lower Eastern Shore. He’s also a passionate, progressive activist who’s played an important role in the state’s political debates over topics like marijuana legalization. Jake, thank you so much for joining us.

Jake Burdett:         Thank you for having me on.

Taya Graham:              So, tell us about what happened to you and how you ended up being charged with the unlikely crime of wiretapping.

Jake Burdett:        Yeah, so I attended a protest as a guest. I didn’t have any real planning of this protest, but it was put on by a group called Maryland Marijuana Justice, which is an offshoot of a group called DC Marijuana Justice, which is very influential in getting marijuana legalized in Washington DC. We were protesting the representative on the Eastern Shore in Maryland’s first district, Andy Harris, who is a super far right wing guy, vehemently opposed to any type of marijuana legalization, actually ranked in the top five worst congress people on the issue of marijuana.

Taya Graham:         Wow.

Jake Burdett:             So, we protested at his constituent office in downtown Salisbury, which is taxpayer funded. So, I consider that a public space. We went to his office, which was on the seventh floor. The building itself was a private building, but his office within that building was paid for by taxpayer funds, so a public office.

There were about 30 of us. The staffer came out into the hallway. We were all live streaming the entire time because it is a protest after all. So, we go into the office, he says only about six of us can go in. I was one of the six that went in. Once we got in the office, they said if we continue to record, we will be escorted out, which I was fine with being escorted out. Also, I’m thinking, why can we not record taxpayer funded staff [crosstalk] or a public representative and in a public space? During a protest of all things, why can we not record? So, I went ahead and recorded anyways, being fine with being escorted out, not aware that Maryland is actually one of 12 states to have a two-party consent law where you need both parties’ permission to record. Which even if I did know about that law, I might not have known that that applied to public representatives and whatnot in a public space.

Taya Graham:         Certainly.

Jake Burdett:         But nonetheless, I didn’t know that that was the law. The following day when I found out that that was the law and I had been live streaming it on Facebook. So, when I found out, within 24 hours I deleted the live stream. I called the staffer personally and apologized.

Taya Graham:           Wow.

Jake Burdett:              But still, because representative Andy Harris is kind of a petty person and this feud between the marijuana activism community and Andy Harris has been going on for a long time, he wanted to make an example out of me.

Taya Graham:            Wow.

Jake Burdett:          And saw taking action against me as taking action against all of us, which it is in a way. So, he decided to go forward and press two felony charges on me. One for the recording, one for the distribution, because it was a live stream on Facebook Live. Now, so I got a lawyer just in case, and the lawyer said, look, you got nothing to worry about. This would be an incredibly controversial thing for any county state’s attorney to actually prosecute on, even if you did technically break the statute. Which even that is debatable. But even if you did, it would be just such bad PR for a county state’s attorney to move forward with it, that they wouldn’t do it.

Taya Graham:          You would think so.

Jake Burdett:            Because it’s cracking down on a citizen peacefully protesting an elected official. So, a lot of First Amendment rights questions involved there. So, he was telling me it’s not going to go anywhere, I have nothing to worry about. I knew that they were doing a police investigation at the time, but a couple days went by, then a week went by, we didn’t hear anything. Then two weeks went by, then three weeks and then a month. My lawyer said the case isn’t going anywhere. If something was going to happen, they would’ve decided to prosecute by now. The county state’s attorney didn’t do anything, I’m considering this a dead case. He literally told me he’s considering it a dead case. Then after a little over a month, we hear back, not from the county state’s attorney who this was up to, but from the state prosecutor’s office.

Taya Graham:          Wow.

Jake Burdett:           And we were never told that it was being handed to the state prosecutor’s office. We had no idea. So, we were contacted by them saying that they were deciding to prosecute our case. Which, my lawyer and myself were shocked by because so much time had gone by, and my lawyer was so confident that nothing was going to happen if it had waited that long. Again, to our knowledge, it was up with the county state’s attorney. So, we were really shocked that it was a county state prosecutor. So, that’s how those charges came about.

Taya Graham:        So, I’m just curious, were you scared, nervous? How did you feel when you found out that this was being bumped up to Special Prosecutor Davit?

Jake Burdett:           Yeah, I mean, I was scared when I found out it was being investigated at all and that Harris’s office even wanted it to be prosecuted. I was reassured a lot by my lawyer saying it’s not going anywhere. But yeah, when I found out it was literally with the highest prosecutorial authority in the state…

Taya Graham:           Absolutely.

Jake Burdett:         …That is very scary. And especially considering I was facing two felony charges with a maximum penalty of five years in jail each and $10,000 penalties each. So yeah, I mean, I was 20 years old at the time. Like to think that I hopefully have a good future ahead of me in terms of activism and whatnot, and getting two felony charges at a young age like that, is definitely not good for your record and for your future. So I was very scared.

Taya Graham:           Absolutely. I can’t believe it. 10 years and $10,000 for Facebook live-streaming. So, let me just make sure I understand this. You’re trying to hold a congressman accountable who’s basically interfered with the will of the people in Washington, DC, and you end up being charged with a felony. Do you think this was political payback?

Jake Burdett:            I can’t say for certain, I can only speculate. All I can say is it was… It’s uncanny that so much time went by, and that it took so long for them to decide to prosecute this. From my understanding, the prosecutor, Emmett Davit, does seem to have a bit of a history of questionable prosecutions, including the Sewell case, which you all have been covering from the start. He does seem to have a pattern of politically motivated prosecutions. I would think as a state prosecutor, your duty would be to really make sure that you are protecting citizens from overreach by people in power, rather than protecting the people in power from the citizens.

Stephen Janis:           That’s a really good point.

Jake Burdett:           Protecting them from something that’s not even against the law in 38 other states, and had I done what I did in Harris’s DC office, it would’ve been completely fine and legal. In fact, groups have done that and nothing’s happened. But when a progressive activist does it in Maryland I guess it’s an issue for whatever reason. So, I can’t speak 100% to his motives, but it does seem like he’s taking the side of the people in power rather than the average person.

Taya Graham:          You know, Congressman Harris has played an enormous role in trying to prevent DC residents from deciding to make marijuana legal. Can you talk a little bit about that?

Jake Burdett:          Yeah. So, marijuana got legalized in Washington, DC. I believe they put it up for direct ballot initiative and it got passed by the will of the people, as it’s happened in most states that have gotten it legalized. So, the people voted through direct democracy that we want to legalize marijuana for the consumption, possession and to have it legalized so that stores can sell it, like alcohol or any other product. That’s what the people wanted. But Andy Harris, because he was so vehemently against it, he was on one committee in Washington, DC, I believe it might have been the appropriations committee, and he used his power on whatever committee he was on to basically water down the legislation and make it so that marijuana is legal for possession but stores cannot sell it legally over the counter.

So they actually have to do this weird loophole where it’s like, rather than going to a pot store in DC and just getting an eighth for like $30, you have to buy a pair of flip flops for $30, and then it also happens to come with a free gift of an eighth of weed, which costs about the same price. So, he’s made it significantly harder for businesses to operate and for people to use marijuana without having to jump through all these weird legal loopholes so that they don’t get locked up. It’s a completely anti-science based position. And interestingly enough, when you look at Andy Harris’s OpenSecret account, he actually took over $40,000 from the pharmaceutical industry in just the 2017 to 2018 election cycle.

Taya Graham:        That’s incredible. That is absolutely incredible because I was wondering what would motivate him to work against the will of the people, and it seems like it’s the almighty dollar. So Jake, I know you were forced to take a plea deal. Can you tell me what happened?

Jake Burdett:          Yeah. So, it depends on who you ask, whether or not what I even did was against the Maryland’s two-party consent law, just because they have to have a reasonable expectation of privacy, and you can make the argument that considering it’s a public office, a taxpayer-funded staffer of a public representative at a protest, talking about issues of public importance, you can make the argument that does should that person really have a reasonable expectation of privacy? Should public officials have the same privacy expectations as private citizens? So, even that’s a question and part of me really wanted to take the case forward, challenge the case, and either I win and they find I didn’t break the law, or maybe they find that I did go against the statute, but that the statute itself is unconstitutional and an invasion of people’s freedom to protest and whatnot.

Taya Graham:         Absolutely.

Jake Burdett:         So, a big part of me thought that I might have a chance challenging the case. But unfortunately, considering I was facing two five year charges, two five year felony charges, each with a maximum potential of $10,000, there’s a lot to risk there. And sure, the payoff could be good for winning the case and possibly maybe even setting a new precedent, but 10 years in jail is not what I want to do either, especially at such a young age. So, what they did was they offered me a plea deal, the state prosecutor’s office, a plea deal where I would take a probation before a judgment deal, so technically no convictions…

Taya Graham:             Okay, that’s good.

Jake Burdett:          …But still on probation for three years with 100 hours of community service.

Taya Graham:       Wow.

Jake Burdett:         Which I mean, of course, that’s better than two five year felony charges, but –

Taya Graham:         Of course.

Jake Burdett:            …I don’t want to be on probation for three years and it opened my… I always knew as a progressive activist that the criminal justice system is very much rigged. But now living through this firsthand, it’s opened my eyes to how it’s rigged in that they can just throw such harsh penalties at you, and even if you’re moderately confident that you’re going to win the case, if they offer you a probation deal, it traps you into taking the deal because it’s such a big risk in challenging it. Then you’re in a contract for three years and one little slip up can get me the original charges, essentially. So yeah, I feel like people in the justice system, they act like you’re given a choice, but it’s not much of a choice. You’re trapped into taking it just because what you’re facing is so monumental.

Taya Graham:            So, Jake, I know you’re involved politically in progressive circles. What message do you think this prosecution sends to activists?

Jake Burdett:           I mean, I definitely think that they were trying to make an example out of me, both Andy Harris and the state prosecutor’s office, of if there’s a dispute where the people in power don’t like how you’re protesting, or you’re agitating them a little too much, you know whose side the law is going to be on. The law is going to protect the people in power. It’s not going to protect the citizens. It really sends a chilling message and it’s going to make people maybe think twice before they participate in their next direct action. Certainly, I just participated in another direct action recently against Dutch Ruppersberger, around Medicare for All at his DC office, where they don’t have the two-party consent state. But in the moment, I almost had a PTSD-like type thing of just the flashbacks coming back.

Taya Graham:          Of freezing, right?

Jake Burdett:             Yeah.

Taya Graham:           Freezing, being scared to even pull out your phone, I’m sure.

Jake Burdett:           And I realized in the moment, okay, I’m not going to do any more direct actions after this until my probation is over, because it’s just too risky. And part of me wants to not do that because that’s exactly what the prosecutor and what Andy Harris want.

Taya Graham:         Exactly.

Jake Burdett:           But then the other part of me is like, well, it’s also my freedom on the line and other people’s freedom on the line, because… Are you willing to go to jail for your cause? It’s a big thing to commit to and most people aren’t going to do that. So, that’s definitely, I think, the people in power’s goal.

Taya Graham:              One interesting development this week that shows a stark contrast to Davit’s decision is what happened in Baltimore. Seven student activists at Johns Hopkins University, protesting a private police force, they were arrested this week. But Baltimore prosecutor, Marilyn Mosby, yesterday said publicly she would not prosecute the seven activists that were arrested. Jake, what do you think about her decision?

Jake Burdett:              I think she made the right decision. She recognizes that sometimes the police might abuse their authority and that legality is not necessarily always morality. Sometimes the law is not right.

Taya Graham:               That’s a great point.

Jake Burdett:                The JHU situation is something I’ve been following for a long time. In fact, I was collecting petition signatures to override that earlier today. Yeah, I think private police is something everyone should be concerned about. It’s not just JHU, it might start at JHU, but suddenly every private institution wants their own private police force. If the students themselves don’t want that on their campus, they have every right to protest that.

I’m glad that the state prosecutor recognized that the Baltimore police made the wrong decision by cracking down on them peacefully protesting like that. Even the crackdown itself was pretty bad. I mean, you had the police misgendering some of the protestors and just being generally very disrespectful towards them.

Taya Graham:         I want to thank my guest, Jake Burdett, for joining me and my reporting partner, Stephen Janis. And I want to thank you for joining us at the Police Accountability Report on The Real News Network.

Taya Graham

Host & Producer
Taya Graham is an award-winning investigative reporter who has covered U.S. politics, local government, and the criminal justice system. She is the host of TRNN's "Police Accountability Report," and producer and co-creator of the award-winning podcast "Truth and Reconciliation" on Baltimore's NPR affiliate WYPR. She has written extensively for a variety of publications including the Afro American Newspaper, the oldest black-owned publication in the country, and was a frequent contributor to Morgan State Radio at a historic HBCU. She has also produced two documentaries, including the feature-length film "The Friendliest Town." Although her reporting focuses on the criminal justice system and government accountability, she has provided on the ground coverage of presidential primaries and elections as well as local and state campaigns.

 
taya@therealnews.com
 
@tayasbaltimore

Stephen Janis

Host & Producer

Stephen Janis is an award-winning investigative journalist whose work has been acclaimed both in print and on television. As the Senior Investigative Reporter for the now defunct Baltimore Examiner, he won two Maryland DC Delaware Press Association Awards for his work on the number of unsolved murders in Baltimore and the killings of prostitutes. His in-depth work on the city's zero-tolerance policing policies garnered an NAACP President's Award. As an Investigative Producer for WBFF/Fox 45, he has won three successive Capital Emmys: two for Best Investigative Series and one for Outstanding Historical/Cultural Piece.

He is the author of three books on the philosophy of policing: Why Do We Kill? The Pathology of Murder in Baltimore; You Can't Stop Murder: Truths About Policing in Baltimore and Beyond; and The Book of Cop: A Testament to Policing That Works. He has also written two novels, This Dream Called Death and Orange: The Diary of an Urban Surrealist. He teaches journalism at Towson University.