Marijuana Activist Faces 10 Years in Prison for Using Facebook Live
Tuesday, May 28, 2019
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. 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 Emmet Davitt has a unique role in the state’s legal system. He’s a quasi-special prosecutor tasked with investigating corrupt politicians and government malfeasance. Stephen, can you explain his role in the state’s criminal justice system.
STEPHEN JANIS Well, to look for parallels, if you look in the federal system like we just had an investigation by Robert Mueller who is a special prosecutor appointed by the Assistant Attorney General to investigate something that was supposed to be somewhat independent— Emmet Davitt is like an eternal special prosecutor. His position is created by statute and basically, his imperative is to investigate only elected officials, crimes related to elected officials, by statute, or in some very rare cases, crimes that cross jurisdictions. But he is completely unlike all the other prosecutors in Maryland who are elected to their positions. He is appointed by the governor and has no real chain of accountability, which I think is why we’re talking about him today.
TAYA GRAHAM 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 Davitt 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 really 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 was 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, and actually ranked in the top-five worst congress people on the issue of marijuana. We protested at his constituent office and in downtown Salisbury, which is taxpayer-funded, so I consider that a public space. We went to his office, which is 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 was about 30 of us. The staffer came out into the hallways. 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 or a public representative? At 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 twelve 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 our public space. Nonetheless, I didn’t know that that was the law. The following day, when I found out that that was the law, I had been live-streaming it on Facebook. So when I found out within 24 hours, I deleted the livestream. 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 and saw taking action against me as taking action against all of us, which it is kind of in a way. He decided to go forward and press two felony charges on me. One, for the recording. One, for the distribution because it was a livestream on Facebook Live. 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, you know, 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 because it’s cracking down on a citizen peacefully protesting an elected official. So, lot of First Amendment rights questions involved there.
He was telling me it’s not going to go anywhere, I’ve nothing to worry about. I knew that they were doing a police investigation at the time, but a couple of days went by. Then, a week went by where you 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 it was going to, if something was going to happen, they would have 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. And 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. 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 kind of 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. And again, to our knowledge, it was up at the county state’s attorney, so we were really shocked that it was a county state prosecutor. That’s how those charges came about.
TAYA GRAHAM So I’m just curious, were you scared or nervous? How did you feel when you found out that this was being bumped up to a special prosecutor to have it?
JAKE BURDETT Yeah. I mean, I was scared when it was just— when I found out it was being investigated at all, that Harris’s offices 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, like, 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. I liked to think that, you know, I hopefully have a good future ahead of me in terms of activism and whatnot. Getting two felony charges at a young age like that is definitely not good for your record and your future, so I was very scared.
TAYA GRAHAM Absolutely. I can’t believe it. Ten years and $10,000 for Facebook Live streaming. So let me just make sure I understand this. You were 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 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, Emmet Davitt, 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 Hmm, that’s a really good point.
JAKE BURDETT Protecting them from something that’s not even against the law in 38 other states. Had I done what I did in Harris’s DC office, it would have 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 one hundred percent 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. The people voted through direct democracy that we want to legalize marijuana for 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, rather than going to a pot store in DC and just getting an eighth for $30, you have to buy a pair of flip-flops for $30 and then it also happens to come with the free gift of an eighth, which costs about the same price. 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. 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 alone.
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. 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 Yes. 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. You can make the argument that considering it’s a public office, a taxpayer-funded staffer, a public representative at a protest talking about issues of public importance, you can make the argument that should that person really have a reasonable expectation of privacy? Should public officials have the same privacy expectations as private citizens? Even that’s a question and part of me really wanted to take the case or challenge the case. 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, sort of, an invasion of people’s freedom to protest and whatnot. So, you know, 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. Sure, the payoff could be good of winning the case and possibly maybe even setting a new precedent, but ten years in jail is not what I want to do either, especially at such a young age.
What they did was, they offered me a plea deal, the state prosecutor’s office, a plea deal where I would be to get probation before a judgment deal. So technically, no convictions but still, on probation for three years with 100 hours of community service, which, of course, that’s better than two five-year felony charges. But still, I don’t want to be on probation for three years and it kind of 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 and that they can just throw such harsh penalties at you. Even if you’re moderately confident that you’re going to win the case, if they offer you a probation deal, it sort of traps you into taking the deal because it’s such a big risk in challenging it. Then you’re in like a contract for three years, and one little slipup can get me the original charges essentially. I feel like people in the justice system, they don’t— they act like you’re given a choice, but it’s not much of a choice. You’re sort of trapped into taking it just because what you’re facing is so monumental.
TAYA GRAHAM You know, I think you make such a good point. There are so many people around the country who are put in the exact same position where they’re offered a plea deal, or they could be looking at five, ten, fifteen years. And of course, you take the deal because you’re afraid of being hit with such a huge amount of time. The thing is, with three years’ probation, that means with any little slip up you could potentially end up being placed in prison. Is that right?
JAKE BURDETT Yeah, exactly. I mean, luckily with the plea deal, one of the charges was dismissed, but I still have the other charge where if I slip up—I mean, I am a marijuana activist. Of course, it’s very easy. You think oh, well it’s so simple to stay out of trouble in three years. But if they criminalize your lifestyle, then it’s not so easy. It’s one thing for me, but I’m lucky in the fact that I’m a privileged white man who the police aren’t necessarily going to be viewing me with such a close lens and targeting my neighborhood. But there’s a lot of, you know, more low-income, minority people in the same exact situation [as] me and they’re being profiled by the police. The police are looking for a reason to get them in trouble, so it really is, you just do have that massive target on your back. One false move— even if it’s like a minor traffic thing, you know. A speeding ticket won’t get it for you, but I’m pretty sure if you were to accidently hit someone’s car— some small things like that. I could be wrong about that, but—
TAYA GRAHAM But it’s very easy to violate probation. You can miss an appointment with your probation officer. You know, there’s so many ways it can be violated, and that’s such a precarious position for you to be in. And like you said, you made such an excellent point, that there are people of color and low-income communities that are being targeted right now, and it’s so easy to be pulled right back into the system like that.
STEPHEN JANIS And another risk, because the case would be tried in Wicomico County, right? It would have been tried in Wicomico County, which could be risky because we’ve seen that that is a very conservative—
TAYA GRAHAM Exceptionally conservative area.
STEPHEN JANIS So you would have had a jury made up of people from Wicomico County and I think that would have been very risky.
TAYA GRAHAM Absolutely.
STEPHEN JANIS Because we’ve watched the criminal justice system on the Eastern Shore and it certainly is a lot different than, say, Baltimore.
TAYA GRAHAM Definitely. 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 would definitely think that they’re trying to make an example out of me, both Andy Harris and the state prosecutor’s office. If there is 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’s 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. It’s 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 like a PTSD-type thing of, you know, just the flashbacks coming back.
TAYA GRAHAM Freezing, right? Freezing, being scared to even pull out your phone. I’m sure.
JAKE BURDETT Yeah and I realized, in the moment, like, okay I’m not going to do any more direct actions after this until my probation is over, because it’s just too risky. Part of me wants to not do that because that’s exactly what the prosecutor and what Andy Harris want, 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, you know, are you willing to go to jail for your cause? It’s a big thing to commit to and most people aren’t gonna do that, so that’s definitely, I think, the people in power’s goal.
TAYA GRAHAM So let me just direct this toward Stephen for a moment. Stephen, this isn’t the only controversial case that Davitt’s involved in. The other one involves the prosecution of a black police chief and a 2014 accident involving two parked cars. Can you talk about that a little?
STEPHEN JANIS Yeah, sure. So next week the state prosecutor’s office will be retrying a 2014 accident case that was brought against the former police chief of Pocomoke City, which is a small town in the Eastern Shore, Kelvin Sewell. Sewell was fired in 2015 without explanation by the Pocomoke City Council, despite having an incredible record as the police chief down there, lowering crime and incredible local support. After he was fired, the state prosecutor’s office started an expansive investigation into his tenure there, going through almost everything, talking to women who they say he slept with, all sorts of crazy stuff, and finally focused on this 2014 accident that was given to them by the prosecutor’s office down there, Beau Oglesby, who was also subject to an EEOC complaint against him by Sewell and two other of his fellow African American officers alleging discrimination. So in 2016, he tries him for this case. The accident involved two parked cars. A local resident, Doug Matthews, who was also a member of the Black Masons with Sewell, runs into the cars, drives three blocks home, calls police, and Davitt prosecutes him for corruption, for misconduct in office and a conspiracy.
TAYA GRAHAM Isn’t that an officer’s discretion to decide whether or not to charge someone?
STEPHEN JANIS Well yeah, I mean, that’s the thing. We sat through the trial and there was no evidence that Sewell received any sort of benefit from this, other than the fact that he happened to be a member of the Black Masons with Doug Matthews. And so, the case was tried, and the jury took about two minutes to find him guilty, an almost all-white jury and one African-American member. The case was appealed because the judge had denied Kelvin the right to call any expert witnesses to dispute this notion that an officer does not have discretion. So the Court of Special Appeals overturns the prosecution and remands the case back to Worcester County. Given that four-five years had elapsed, given that Kelvin settled his lawsuit with the City of Pocomoke, won his lawsuit where Pocomoke admitted to, or at least agreed to, a consent decree with him to try to change some of the racist practices that had occurred and had caused him suffering.
Despite all that, Emmet Davitt is retrying this case, retrying it. And so, I think a lot of people are saying well, why? Why would he be retrying an accident case? With all the police corruption we have in places like Baltimore that are technically Davitt’s purview, why is he so focused on this case? The allegations of Sewell’s defense team is that it’s in retaliation for filing EEOC complaints and racial discrimination complaints against the City of Pocomoke and against the state of Maryland. And let’s remember that the state of Maryland was ultimately defending Pocomoke City and the Worcester County Sheriff’s Office, who was also subject to the complaint, and the state of Maryland also hires and pays Emmet Davitt, so that’s why these questions have come up. Despite a lot of public support for Sewell and a lot of questions, he’s going forward with the seemingly— a case that’s hard to justify. Usually these cases, as the ACLU has found, these cases are prosecuted when the current person is in office to remove them from office, but Sewell had already left before this case even started. So what’s the point five years later? Hard to understand.
TAYA GRAHAM That’s really interesting that five years later, that this case moved forward, and he’s already left office. You said there was this really expansive investigation that they were trying to probe into his personal life. Sounds to me like this 2014 car accident with two park cars was the only thing they could come up with.
STEPHEN JANIS That was. You know, they went through everything. They went through actually three other tickets, a time he was pulled over by police. I mean, they went through everything. They really went into everything that he did as a police chief, and this was the only thing that they could come with, that they could prosecute. And it really is questionable. It really is something that is difficult to understand especially for people like us who live in Baltimore City where police corruption is rampant. Why exactly is this case such an obsession?
TAYA GRAHAM Yeah. It’s a good question. Jake what’s your take on the Sewell case? Do you think its retaliation?
JAKE BURDETT Yeah. It one hundred percent sounds like they’re, kind of, going after a whistleblower who spoke up against institutional racism in the police force in Worcester County, which I also want to say, as a student at Salisbury University in Wicomico County right next to the Worcester County, the institutional racism in the police force in Worcester County is not just isolated to that county. It’s a problem with a lot of Eastern Shore county police departments, unfortunately. We have Sheriff Mike Lewis who is kind of infamous here in Wicomico County for things like that. So yeah, I think it’s a widespread problem. It’s kind of a good ole boy system here and it sounds like Chief Sewell and the other two officers spoke out against it, won the settlement, and maybe the prosecutor’s office didn’t want other whistleblowers doing the same, so they’re trying to make an example out of him by prosecuting him over a petty, five-year-old charge.
TAYA GRAHAM You know, I think you make a really great point about these types of prosecutions not only chilling activism, but also discouraging whistleblowers from coming forward. Stephen, I’m having a hard time understanding either of these cases. Some of the inconsistencies they point out in our criminal justice system— one could argue that prosecutor Davitt overlooked corruption, for example, in the Gun Trace Task Force, which was a group of eight Baltimore City police officers who robbed residents, dealt drugs, and stole overtime, and yet, he’s gone all out on these two cases. What does that say to you about our criminal justice system?
STEPHEN JANIS Well it says basically that it’s racist. You know, because really, the defining, in this particular case is race. But it also says that it’s, as Jake has pointed out, it’s there to protect the powerful, ultimately, because Davitt prosecutes Kelvin Sewell because he speaks out against the Worcester County law enforcement-industrial-complex, or whatever you want to call it, and does the same thing with Jake when he tries to hold a public official accountable. So he’s serving the interests of the powerful, of government, and really to the detriment of the people who are trying to hold public officials accountable. It really is perverse in some ways, from a perspective of justice, and I think it’s something that has to be questioned.
TAYA GRAHAM One interesting development this week that shows a stark contrast to Davitt’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. 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. And 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 and 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 protesters and being just generally very disrespectful towards them.
STEPHEN JANIS You know, one thing both these cases point out is that we’ve seen this debate about Donald Trump and stuff about we’re a nation of laws and no one is above the law, but the law is applied, right? And the way the law is implied, dictates who is above it, who’s beyond it, and who actually is punished. And so, we can see that that notion, that there is this absolute legality and, as Jake points out, morality interpolated with it, is irrelevant. We apply laws completely differently to African Americans, to people like Jake obviously, to police chiefs who bring—We apply them totally different. It’s just total, utter b.s. that no one is above the law or that we’re a nation of laws or that laws even matter, because people apply them. And the state prosecutor’s office has chosen to apply laws in ways that is completely destructive to the idea of justice. There’s a big difference in law and justice, and this is not justice. That’s the problem and that’s why this is so ugly.
TAYA GRAHAM Stephen, I think you said that perfectly and it’s a great note to end on. 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.