2016- 2017 MSBA High School Mock Trial

Case & Competition

STATE OF MARYLAND V. SAM S. SARATOGA

In cooperation with the Maryland Judicial Conference Public Awareness Committee,

Maryland State Bar Association, & Maryland State Department of Education.

The development of a mock trial case is a collaborative project. We would like to express our enormous gratitude to the following people for generously giving their time, creativity, and invaluable expertise;

Erik Atas, Esq. Hon. Kathleen Chapman

Syeetah Hampton-EL, Esq. James MacAlister, Esq. Stephen Pfaffenhauser David Weinstein, Esq.

MSBA Mock Trial is managed by the

Important Contacts for the Mock Trial Competition

Please contact your local coordinator for information about your county/circuit schedule. Your second point of contact is the State Mock Trial Program Coordinator:

Megan Quirk, 410-706-5361 mquirk@clrep.org

Citizenship Law Related Education Program Maryland Bar Center, 4

th Floor

520 West Fayette Street Baltimore, Maryland 21201

© All rights reserved, 2016. Reproduction of any portion of this material is not permitted without the express written permission of CLREP.

CIRCUIT COUNTIES/CITY LOCAL COORDINATORS

1 Dorchester, Somerset, Wicomico, Worcester To Be Determined

2 Caroline, Cecil, Kent, Queen Anne’s, Talbot

3 Baltimore, Harford Ms. Dani Biancolli 410-887-2172 dbiancolli@bcps.org

4 Allegany, Garrett, Washington Mr. Jim Zamagias 301-724-5360 x213 jzamagias@bishopwalsh.org

5 Carroll, Howard Anne Arundel

To Be Determined Ms. Terry Poisson mpoisson@aacps.org 410-222-5440

6 Frederick

Montgomery

Ms. Colleen Bernard Colleen.Bernard@fcps.org 301-644-5264 Ms. Jessica McBroom Jessica.McBroom@fcps.org 240-236-7748 Mr. Scott Zanni Scott_A_Zanni@mcpsmd.org 301-840-4627

7 Calvert, Charles, Prince George’s, St. Mary’s Ms. Sue Strickland 301-449-4900 Susan.Strickland3@verizon.net

8 Baltimore City Mr. Erik Atas ea@bobbyzirkinlaw.com 410-499-1132(c) 410-356-4455(o)

BOARD OF DIRECTORS

Hon. Mark F. Scurti

Chairperson

District Court of Baltimore City

Barry L. Gogel

Co-Chairperson

Attorney at Law

Alice S. Chong

Treasurer

National Security Agency

Joan Cerniglia-Lowensen

Secretary

Attorney at Law

Shane Alleyne

CareFirst

Hon. Kathleen Chapman

Administrative Law Judge

Toni Lemons

Annie E. Casey Foundation

Dawn Lewis

District 9, City Council

Gary Christopher Norman

Attorney at Law

Stephen Pfaffenhauser

T. Rowe Price

Deborah Lynne Potter

Attorney at Law

Thiru Vignarajah

Office of the Attorney General

Maryland Bar Center, 4th Floor, 520 West Fayette Street, Baltimore, MD 21201 Tel: 410-706-5360 · Fax: 410-706-5576

www.clrep.org

November 10, 2016 Dear Students & Coaches:

W elcome to the 34th annual Maryland State Bar Association Statewide High School Mock Trial Competition. We are excited for a new year and an intriguing, thought-provoking case.

In recent years, there has been considerable attention paid to drinking water in the United States; particularly in Flint, Michigan. Subsequent investigations have revealed that nearly 2,000 water systems, spanning all 50 states, have shown excessive levels of lead contamination. Even more alarming is the fact that many of the highest reported lead levels were found in schools and daycare centers—hundreds of them across the United States. Lead-polluted water tends to be concentrated in communities with a higher percentage of low-income and minority residents, leaving us to contemplate some of the more complicated, systemic causes. We hope that this case will raise awareness about an issue that many of us take for granted every day— the basic right to clean water. Our four primary objectives for the MSBA Mock Trial competition are:

To further understanding and appreciation of the rule of law, court procedures, and the legal system;

To increase proficiency in basic life skills such as listening, speaking, reading, and critical thinking;

To promote better communication and cooperation between the school system, the legal profession, and the community at large;

To heighten enthusiasm for academic studies as well as career consciousness of law-related professions.

Mock Trial works best when the primary goal of all involved is to become better educated about the law. The competition provides opportunities to increase your understanding of the law and its applicability, through case preparation with your attorney advisor, teacher coach, and teammates, as well as during each of the competitions. It will hone skills that serve you well for the rest of your life. Mock Trial parallels the real world in terms of proceedings, interpretations, and decisions by the Bench. Decisions will not always go your way and you will not always emerge a “winner.” Judges may offer suggestions based on their own preferences—use these as guidelines rather than as “right” or “wrong” ways of doing things. The next judge who presides over your competition may prefer things just the opposite (and that, by the way, is very real-world!) We ask that you read carefully through this entire book. Do not assume that everything is the exact same as previous years, as even small modifications can be significant during the course of competition. We wish you a successful year, and most importantly—a fun, and rewarding learning experience. Best Regards,

Shelley Brown Megan Quirk Executive Director Program Coordinator, Statewide Initiatives

TABLE OF CONTENTS

Organizational Rules 1

Hints on Preparing for a Mock Trial Competition 3

Trial Procedures 4

Simplified Rules of Evidence & Procedure 7

Statement of Stipulated Facts & Evidence 13

Witnesses for the Prosecution

Tai Tiamat, Former Supervisor of Custodians/Lead Abatement Expert 15

Ricki Rotorua, M.D., Pediatrician 18

Pat Pamukkale, PTA President, Parent of Victim 21

Witnesses for the Defense

Sam Saratoga, Ed.D., Defendant, Former Superintendent 23

Bobbie Beppu, Ph.D., Hydrogeologist 27

Terry Tatio, M.D., OB-GYN & Medical Toxicologist 29

Evidence, Exhibits & Documents

EXHIBIT A- 2010 Press Release 31

EXHIBIT B- Correspondence Saratoga-Tiamat (Emails, Fax, Phone Message) 32

EXHIBIT C- Saratoga’s letter to PTA 36

EXHIBIT D- Lead Abatement and Drinking Water Certification Information 37

EXHIBIT E- Employment Contract 38

EXHIBIT F- Charging Document 41

Background Information

Lead Drinking Water Information: Center for Disease Control 42

Law & Jury Instructions

Misconduct in Office 46

Reckless Endangerment 55

Appendices

Guidelines for Competition Judges 63

Sample Score Sheet 64

Calendar Inside Back

State Champions Back Cover

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2016-2017 MSBA HIGH SCHOOL MOCK TRIAL COMPETITION PART I: ORGANIZATIONAL RULES 1. Forfeits are prohibited. As a registered team, you agree to attend all scheduled competitions. If a team does not have an adequate number of students (i.e. due to illness, athletics, or other conflicts), it is still expected to attend and participate in the competition. In these instances, a team will “borrow” students from the opposing team. While this is treated as an automatic win for the opposition, both teams still gain the practice. Further, it maintains the integrity of the competition and is respectful of the Court, Presiding Judge, attorneys and the other team that has prepared for, and traveled to, the competition. If this occurs, coaches should make every effort to notify the local coordinator AND the other coach in advance of the competition. When an opposing team does not have enough students to assist the other team, students may depict two or more of the roles (i.e. they may depict 2 witnesses or play the part of 2 attorneys). 2. Time limits. Student attorneys are expected to keep their presentations limited to the times noted below. (Please see #3 for additional information.) The “clock” should be stopped during objections. Teams should NOT object, however, if they perceive a violation of these guidelines.

Opening statements—5 minutes each;

Direct examination—7 minutes per witness;

Voir Dire, if necessary— 2 minutes per expert witness (in addition to the time permitted for direct and cross examination)

Cross-examination—5 minutes per witness;

Re-Direct and Re-Cross Examination—3 minutes and a maximum of 3 questions per witness.

Closing Arguments – 7 minutes each.

3. The use of a Bailiff. Each team is encouraged to have a Mock Trial team member, who is not scheduled to compete during the match, serve as Bailiff during the course of each competition. Each Bailiff will keep time for opposing counsel; or, in the event that only one team brings a Bailiff, that person shall keep time for both sides. The Bailiff(s) will also announce the Judge, call the case, and swear in each witness. (Please see Trial Procedure #2 for additional information.) While the use of a bailiff is discretionary (by circuit) during local competitions, it will be mandated in state competitions. 4. Local competitions must consist of enough matches that each participating high school presents both sides of the Mock Trial case at least once. 5. A team must be comprised of no fewer than eight (8) but a maximum of twelve (12) student members from the same high school, with the exception of high schools with a Maryland State Department of Education inter-scholastic athletics designation of Class 2A or Class 1A, which may combine with any other schools in the LEA in those classifications to field a team. Two “alternate” students are permitted during the local competition only. If a team advances beyond the local competition, an official roster must be submitted not exceeding 12 students. 6. A team may use its members to play different roles in different competitions. For any single competition, all teams are to consist of three attorneys and three witnesses, for a total of six (6) different students. (Note: In Circuits 1 and 2, where teams typically participate in two competitions per evening – once as prosecution and once as defense – students may change roles for the second competition.) 7. Any high school that fields two or more teams may NEVER allow, under any circumstances, students from Team A to compete for Team B or vice-versa. Each team must have its own teacher coach and attorney advisor, separate and apart from the other team. Additionally, if a high school has multiple teams, then those teams MUST compete against one another in the local competition.

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8. A.) Areas of competition coincide with the eight Judicial Circuits of Maryland. Each circuit must have a minimum of four teams. However, in order to provide the opportunity for as many teams to participate as possible, if a circuit has two or three teams, they may compete in a “Round Robin” to determine who will represent the circuit in the circuit playoff. The runner-up team from another circuit would be selected to compete based upon their winning record and average points scored during local competition rounds. This team would compete with the circuit representative in a playoff prior to the Regional Competition. When a circuit has only one registered team, CLREP may designate another circuit in which this team may compete. B.) OR, under the discretion of a circuit coordinator and CLREP, if a circuit so chooses, it may combine with the “un-official” circuit to increase the number of opportunities to compete. In this case, a “circuit opening” arises and will be filled by the following method. To create the most equity, a sequential rotation of circuits will occur. If willing, the second place team from the specified circuit will advance to the regional competitions to fill the opening. If that team is unable to advance, the opportunity will move to the next circuit, and so on, until the opening is filled. In the event that all circuits are officially comprised of a minimum of four teams, the designated circuit will remain the next in-line to advance in future years.

9. Each competing circuit must declare one team as Circuit Champion by holding local competitions based on the official Mock Trial Guide and rules. That representative will compete against another Circuit Champion in a single elimination competition on April 3rd or 6th, 2017. 10. The dates for the Regionals, the Semi-Finals, and the Finals will be set and notice given to all known participating high schools by November 10, 2016. Changes will only occur due to conflicts in judicial schedules. 11. District Court judges, Circuit Court judges, and attorneys may preside and render decisions for all matches. If possible, a judge from the Court of Appeals or Court of Special Appeals will preside and render a decision in the Finals. 12. Any team that is declared a Regional Representative must agree to participate on the dates set for the remainder of the competition. Failure to do so will result in their elimination from the competition and the first runner-up in that circuit will then be the Regional Representative under the stipulations. 13. Winners in any single round should be prepared to switch sides in the case for the next round. Circuit Coordinators will prepare and inform teams of the local circuit schedule. 14. CLREP encourages Teacher Coaches of competing teams to exchange information regarding the names and gender of their witnesses at least 1 day prior to any given round. The teacher coach for the plaintiff/prosecution should assume responsibility for informing the defense teacher coach. A physical identification of all team members must be made in the courtroom immediately preceding the trial. 15. Members of a school team entered in the competition—including Teacher Coaches, back-up witnesses, attorneys, and others directly associated with the team’s preparation—are NOT to attend the enactments of ANY possible future opponent in the contest. 16. Every effort should be made for teams to work with an attorney advisor to prepare for competition. It is suggested that they meet with their Attorney Advisor at least twice prior to the beginning of the competition. For

2016-2017 Circuit 6 2020-2021 Circuit 1

2017-2018 Circuit 7 2020-2021 Circuit 2

2019-2020 Circuit 8 2021-2022 Circuit 3

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some suggestions regarding the Attorney Advisor’s role in helping a team prepare for the tournament, see PART II: Hints on Preparing for Mock Trial and Appendix A. 17. THERE IS NO APPEAL TO A JUDGE’S DECISION IN A CASE. CLREP retains the right to declare a mistrial when there has been gross transgression of the organizational rules and/or egregious attempt to undermine the intent and integrity of the Mock Trial Competition. Upon the coaches’ review of, and signature on the score sheet, THE OUTCOME IS FINAL. 18. There shall be NO coaching of any kind during the enactment of a mock trial: i.e. student attorneys may not coach their witnesses during the other team’s cross examination; teacher and attorney coaches may not coach team members during any part of the competition; members of the audience, including members of the team who are not participating that particular day, may not coach team members who are competing; and team members must have their cell phones and all other electronic devices turned off during competition as texting may be construed as coaching. Teacher and Attorney Coaches MAY NOT sit directly behind their team during competition as any movements or conversations may be construed as coaching. 19. It is specifically prohibited before and during trial to notify the judge of students’ ages, grades, school name or length of time the team has competed. 20. The student attorney who directly examines a witness is the only attorney who may raise objections when that same witness is being cross-examined. The student attorney who raises objections on direct examination must be the same attorney who then cross-examines that same witness. This same principle applies if a student attorney calls for a bench conference; i.e., it must be the attorney currently addressing the Court. The student attorney who handles the opening statement may not perform the closing argument. 21. Judging and scoring at the Regional, Semi-Final and Statewide Final Competitions are distinct from judging and scoring in some local competitions. As in a real trial, the judge will preside, hear objections and motions, instruct counsel, and determine which team prevailed based on the merits of the law. Two attorneys will independently score team performance at the trial, using the score sheet from the official Mock Trial Guide. At the conclusion of the trial and while in chambers, the judge will award the tie point without informing the attorney scorers. The Tie Point will only be added into the final score only in the case of a tie. The attorneys will meet and work out any differences in scoring so that the two attorneys present one score sheet to the judge, and eventually, the two teams. The judge retains the right to overrule any score on the score sheet. Both teams shall receive a copy of this score sheet, signed by the judge. Teams will not have access to the original, independent score sheets of the attorneys. 22. Evidentiary materials that have been modified for use during trial (e.g., enlarged), must be made available during the trial for the opposing team’s use. During witness identification exchanges, please alert the other team if you plan to use modified materials. PART II: HINTS ON PREPARING FOR A MOCK TRIAL COMPETITION The following tips were developed by long-time Mock Trial Coaches. 1. Every student, teacher and attorney participating in a team’s preparation should read the entire set of materials (case and guide) and discuss the information, procedures and rules used in the mock trial competition. Students: you are ultimately responsible for all of this once Court is in session. 2. Examine and discuss the facts of the case, witness testimony and the points for each side. Record key information as discussion proceeds so that it can be referred to in the future.

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3. Witness’ credibility is very important to a team’s presentation of the case. Witnesses: move into your roles and attempt to think as the person you are portraying. Read over your affidavits many times and have other members of your team ask you questions about the facts until you know them. 4. Student attorneys: you should have primary responsibility for deciding what possible questions should be asked of each witness on direct and cross-examination. Questions for each witness should be written down and/or recorded. Write out key points for your opening statements and closing arguments before trial; then, incorporate any important developments that occurred during the trial. Concise, summary, pertinent statements which reflect the trial that the judge just heard are the most compelling and effective. Be prepared for interruptions by judges who like to question you, especially during closing arguments. 5. The best teams generally have student attorneys prepare their own questions, with the Teacher and Attorney Coaches giving the team continual feedback and assistance. Based on these practice sessions, student attorneys should continue revising questions and witnesses should continue studying their affidavits. 6. As you approach your first round of competition, you should conduct at least one complete trial as a dress rehearsal. All formalities should be followed and notes should be taken by everyone. Evaluate the team’s presentation together. Try to schedule this session when your Attorney Coach can attend. 7. Some of the most important skills for team members to learn are:

Deciding which points will prove your side of the case and developing the strategy for proving those points.

Stating clearly what you intend to prove in an opening statement and then arguing effectively in your closing that the facts and evidence presented have proven your case.

Following the formality of court; e.g., standing up when the judge enters or exits the courtroom, or whenever you address the Bench, and appropriately addressing the judge as “Your Honor,” etcetera.

Phrasing direct examination questions that are not leading (carefully review the rules of evidence and watch for this type of questioning in practice sessions).

Refraining from asking so many questions on cross-examination that well-made points are lost. When a witness has been contradicted or otherwise discredited, learn to limit additional questions, as they often lessen the impact of previously made points.

Thinking quickly on your feet when a witness gives you an unexpected answer, an attorney asks unexpected questions, or a judge throws questions at you.

Recognizing objectionable questions and answers, offering those objections quickly and providing the appropriate basis for the objection.

Paying attention to all facets of the trial, not just the parts that directly affect your presentation. All information heard is influential! Learn to listen and incorporate information so that your presentation, whether as a witness or an attorney, is the most effective it can be.

The Mock Trial should be as enjoyable as it is educational. When winning becomes your primary motivation, the entire competition is diminished. Coaches and students should prepare AT LEAST as much for losing as they do for winning/advancing. Each member of the team, student or coach, is personally responsible for his/her behavior prior to, during, and at the close of the trial. There are schools and individuals across the state that are no longer welcome to participate based on previous behavior.

Part III: TRIAL PROCEDURES Before participating in a mock trial, it is important to be familiar with the physical setting of the courtroom, as well as with the events that generally take place during the competition and the order in which they occur. This section outlines the usual steps in a “bench” trial that is, without a jury. 1. Courtroom Set-Up

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a. Plaintiff/Prosecution will sit closest to the jury box. b. Defense – will sit on the side of the courtroom that is farthest from the jury box. This is based on the premise that the defendant is innocent until proven guilty, and so is removed (as far as possible) from the scrutiny of the court. c. The Bailiff will sit in either i) the jury box ii) the court reporter’s seat or iii) in another seat so designated by the Judge, that is equally visible to both parties. 2. The Opening of the Court & Swearing of Witnesses a. The Bailiff for the Prosecution/Plaintiff will call the Court to order through the following steps: i. In a loud voice, say, “All rise.” (When the judge enters, all participants should remain standing until the judge is seated.) ii. The Bailiff should call the case; i.e., “The Court will now hear the case of ________v.________.” And announce the judge: “The Honorable ________ presiding.” b. The judge will permit those in the Court to be seated; then ask the attorneys for each side if they are ready. c. During the course of the trial, the Bailiff for the Defense shall administer the Oath, and ask the witness to raise his or her right hand: “Do you affirm to tell the truth, the whole truth, and nothing but the truth under the pains and penalties of perjury?” 3. Opening Statements (5 minutes maximum) a. Prosecution (criminal case)/ Plaintiff (civil case) After introducing oneself and one’s colleagues to the judge, the prosecutor or plaintiff’s attorney summarizes the evidence for the Court which will be presented to prove the case. The Prosecution/ Plaintiff statement should include a description of the facts and circumstances surrounding the case, as well as a brief summary of the key facts that each witness will reveal during testimony. The Opening Statement should avoid too much information. It should also avoid argument, as the statement is specifically to provide facts of the case from the client’s perspective. b. Defense (criminal or civil case) After introducing oneself and one’s colleagues to the judge, the defendant’s attorney summarizes the evidence for the Court which will be presented to rebut the case (or deny the validity of the case) which the plaintiff has made. It includes facts that tend to weaken the opposition’s case, as well as key facts that each witness will reveal during testimony. It should avoid repetition of facts that are not in dispute, as well as strong points of the plaintiff/ prosecution’s case. As with the Plaintiff’s statement, Defense should avoid argument at this time. 4. Direct Examination by the Plaintiff/Prosecutor (7 minutes plus 2 minutes for Voir Dire) The prosecutor/ plaintiff’s attorney conducts direct examination (questioning) of each of its own witnesses. At this time, testimony and other evidence to prove the prosecution’s/plaintiff’s case will be presented. The purpose of direct examination is to allow the witness to relate the facts to support the prosecution/plaintiff claim and meet the required burden. It also allows counsel for each side to establish the credibility of each of their witnesses. (If opposing counsel chooses to voir dire a witness, 2 minutes are permitted, in addition to the 7 minutes allowed for direct examination.) General Suggestions:

Ask open-ended questions, rather than those that draw a “yes” or “no” response. Questions that begin with “who,” “what,” “where,” “when,” and “how” or “explain…” and “describe…” are helpful during direct examination.

Questions should be clear and concise, and should help guide your witness through direct examination. Witnesses should not narrate too long, as it will likely draw an objection from opposing counsel. Do not ask questions that “suggest” a specific answer or response.

5. Cross-Examination by the Defendant’s Attorneys (5 minutes)

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After the attorney for the prosecution/plaintiff has completed the questioning of a witness, the judge then allows the defense attorney to cross-examine the witness. The cross-examiner seeks to clarify or cast doubt upon the testimony of the opposing witness. Inconsistency in stories, bias, and other damaging facts may be pointed out to the judge through cross-examination. (If an attorney chooses to voir dire a witness, 2 minutes are permitted, in addition to the 5 minutes allowed for cross examination. These 2 minutes are typically allotted during the witness’ direct examination.) General Suggestions:

Use narrow, leading questions that “suggest” an answer to the witness. Ask questions that require “yes” or “no” responses.

In general, it is never a good idea to ask questions to which you do not know the answer – unexpected responses can be costly and may leave you unprepared and off-guard.

Never ask “why.” You do not want to give a well-prepared witness an opportunity to expand upon a response.

Avoid questions that begin with “Isn’t it a fact that…”, as it allows an opportunistic witness an opportunity to discredit you.

6. Direct Examination by the Defendant’s Attorneys (7 minutes plus 2 minutes for Voir Dire) Direct examination of each defense witness follows the same pattern as above which describes the process for prosecution’s witness. (See #3 above for suggestions.) 7. Cross-Examination by the Prosecution/ Plaintiff (5 minutes) Cross-examination of each defense witness follows the same pattern as above for cross-examination by the defense. (See #4 above for suggestions.) 8. Re-Direct Examination by the Plaintiff/ Prosecution (3 minutes and/or 3 questions) The Plaintiff’s/Prosecution’s attorney may conduct re-direct examination of the witness to clarify any testimony that was cast in doubt or impeached during cross-examination. (Maximum of three minutes or three questions.) 9. Re-Cross Examination by the Defense Attorneys (3 minutes and/or 3 questions) The defense attorneys may re-cross examine the opposing witness to impeach previous testimony. (Maximum of three minutes or three questions.) 10. Voir Dire Examination by Either the Plaintiff/ Prosecution or the Defense Attorneys (2 minutes) Voir Dire is the process of asking questions to determine the competence of an alleged expert witness. Before giving any expert opinion, the witness must be qualified by the court as an expert witness. The court must first determine whether or not the witness is qualified by knowledge, skills, experience, training or education to give the anticipated opinion. After the attorney who called the witness questions him/her about his/her qualifications to give the opinion, and before the court qualifies the witness as an expert witness, the opposing counsel shall, if he/she chooses to do so, have the opportunity to conduct a brief cross-examination (called “voir dire”) of the witness’ qualifications. Voir dire is to be limited to the fair scope of the expert’s report. 11. Closing Arguments (Attorneys) (7 minutes) For the purposes of the Mock Trial Competition, the first closing argument at all trials shall be that of the Defense. a. Defense A closing argument is a review of the evidence presented. Counsel for the defense reviews the evidence as presented, indicates how the evidence does not substantiate the elements of a charge or claim, stresses the facts and law favorable to the defense, and asks for a finding of not guilty (or not at fault) for the defense. b. Prosecution/ Plaintiff

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The closing argument for the prosecution/plaintiff reviews the evidence presented. The prosecution’s/plaintiff’s closing argument should indicate how the evidence has satisfied the elements of a charge, point out the law applicable to the case, and ask for a finding of guilt, or fault on the part of the defense. Because the burden of proof rests with the prosecution/plaintiff, this side has the final word. 12. The Judge’s Role and Decision The judge is the person who presides over the trial to ensure that the parties’ rights are protected and that the attorneys follow the rules of evidence and trial procedure. In mock trials, the judge also has the function of determining the facts of the case and rendering a judgment, just as in actual bench trials. PART IV: SIMPLIFIED RULES OF EVIDENCE AND PROCEDURE In American trials, elaborate rules are used to regulate the admission of proof (i.e., oral or physical evidence). These rules are designed to ensure that both parties receive a fair hearing and to exclude any evidence deemed irrelevant, incompetent, untrustworthy or unduly prejudicial. If it appears that a rule of evidence is being violated, an attorney may raise an objection to the judge. The judge then decides whether the rule has been violated and whether the evidence must be excluded from the record of the trial. In the absence of a properly made objection, however, the evidence will probably be allowed by the judge. The burden is on the attorneys to know the rules, to be able to use them to present the best possible case, and to limit the actions of opposing counsel and their witnesses. Formal rules of evidence are quite complicated and differ depending on the court where the trial occurs. For purposes of this Mock Trial Competition, the rules of evidence have been modified and simplified. Not all judges will interpret the rules of evidence or procedure the same way, and you must be prepared to point out the specific rule (quoting it, if necessary) and to argue persuasively for the interpretation and application of the rule you think proper. No matter which way the judge rules, attorneys should accept the ruling with grace and courtesy! 1. SCOPE

RULE 101: SCOPE. These rules govern all proceedings in the mock trial competition. The only rules of evidence in the competition are those included in these rules. RULE 102: OBJECTIONS. An objection which is not contained in these rules shall not be considered by the Court. However, if counsel responding to the objection does not point out to the judge the application of this rule, the Court may exercise its discretion in considering such objections. 2. RELEVANCY RULE 201: RELEVANCY. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. It is that which helps the trier of fact decide the issues of the case. However, if the relevant evidence is unfairly prejudicial, confuses the issues, or is a waste of time, it may be excluded by the Court. Objection: “I object, Your Honor. This testimony is irrelevant to the facts of the case.” RULE 202: CHARACTER. Evidence about the character of a party or witness (other than his or her character for truthfulness or untruthfulness) may not be introduced unless the person’s character is an issue in the case. Objection:

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“Objection. Evidence of the witness’ character is not proper given the facts of the case.” 3. WITNESS EXAMINATION A. DIRECT EXAMINATION (attorney calls and questions witness) RULE 301: FORM OF QUESTION. Witnesses should be asked direct questions and may not be asked leading questions on direct examination. Direct questions are phrased to evoke a set of facts from the witnesses. A leading question, on the other hand, is one that implies, suggests or prompts the witness to answer in a particular manner -- typically a “yes” or “no” answer. Objection: “Objection: Counsel is leading the witness.” NARRATION. While the purpose of direct examination is to get the witness to tell a story, the questions must ask for specific information. The questions must not be so broad that the witness is allowed to wander or narrate an entire story. Narrative questions are objectionable. Objection: “Objection. Question asks for narration.” At times, a direct question may be appropriate, but the witness’ answer may go beyond the facts for which the question was asked. Such answers are subject to objection on the grounds of narration. RULE 302: SCOPE OF WITNESS EXAMINATION. Direct examination may cover all facts relevant to the case of which the witness has first-hand knowledge. Any factual areas examined on direct examination may be subject to cross-examination. RULE 303: REFRESHING RECOLLECTION. If a witness is unable to recall a statement made in an affidavit, the attorney on direct may show that portion of the affidavit that will help the witness to remember. B. CROSS EXAMINATION (questioning the other side’s witness) RULE 304: FORM OF QUESTION. An attorney may ask leading questions when cross-examining the opponent’s witnesses. Questions that tend to evoke a narrative answer should be avoided in most instances. RULE 305: SCOPE OF WITNESS EXAMINATION. Attorneys may only ask questions that relate to matters brought out by the other side on direct examination or to matters relating to the credibility of the witness. This includes facts and statements made by the witness for the opposing party. Note that many judges allow a broad interpretation of this rule. Example: On direct examination, a witness is not questioned about a given topic, and the opposing attorney asks a question about this topic on cross examination. Objection: “Objection. Counsel is asking the witness about matters which did not arise during direct examination.” RULE 306: IMPEACHMENT. On cross-examination, the attorney may impeach a witness (show that a witness should not be believed) by (1) asking questions about prior conduct that makes the witness’ credibility (truth-telling ability) doubtful, or

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(2) asking questions about previous contradictory statements. These kinds of questions can only be asked when the cross-examining attorney has information that indicates that the conduct actually happened. C. RE-DIRECT EXAMINATION RULE 307: LIMIT ON QUESTIONS. After cross-examination, up to three (3), but no more than three (3), questions may be asked by the direct examining attorney, and such questions are limited to matters raised by the attorney on cross-examination. (The presiding judge has considerable discretion in deciding how to limit the scope of the re-direct.) NOTE: If the credibility or the reputation for truthfulness of the witness has been attacked on cross-examination, the attorney whose witness has been damaged may wish to ask several more questions. These questions should be limited to the damage the attorney thinks has been done and should be phrased so as to try to “save” the witness’ truth-telling image in the eyes of the court. Re-direct examination is limited to issues raised by the attorney on cross-examination. Please note that at times it may be more appropriate NOT to engage in re-direct examination. D. RE-CROSS EXAMINATION RULE 308: LIMIT ON QUESTIONS. Three (3) additional questions, but no more than three (3), may be asked by the cross-examining attorney, and such questions are limited to matters on re-direct examination and should avoid repetition. (The presiding judge has considerable discretion in deciding how to limit the scope of the re-cross.) Like re-direct examination, at times it may be more appropriate not to engage in re-cross examination. Objection: “Objection. Counsel is asking the witness about matters that did not come up on re-direct examination.” 4. HEARSAY A. THE RULE RULE 401: HEARSAY. Hearsay is a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted made outside of the courtroom. Statements made outside of the courtroom are usually not allowed as evidence if they are offered in court to show that the statements are true. The most common hearsay problem occurs when a witness is asked to repeat what another person stated to him or her. For the purposes of the Mock Trial Competition, if a document is stipulated, you may not raise a hearsay objection to it. Objection: “Objection. The statement is hearsay, Your Honor.” Possible Response to the Objection: “Your Honor, the testimony is not offered to prove the truth of the matter asserted, but only to show….” B. EXCEPTIONS RULE 402: ADMISSION AGAINST INTEREST. A judge may admit hearsay evidence if it was said by a party in the case and contains evidence which goes against the party’s side. RULE 403: STATE OF MIND. A judge may admit hearsay evidence if a person’s state of mind is an important part of the case and the hearsay consists of evidence of what someone said which described that particular person’s state of mind. RULE 404: BUSINESS RECORDS. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by or from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of

10

the custodian or other qualified witness, unless the source of the information or the method of circumstances of preparation indicate lack of trustworthiness, shall be admissible. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and callings of every kind, whether or not conducted for profit. RULE 405: EXCITED UTTERANCE. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. 5. OPINION AND EXPERT TESTIMONY RULE 501: OPINION TESTIMONY BY NON-EXPERTS. Witnesses who are not testifying as experts may give opinions which are based on what they saw or heard and are helpful in explaining their story. A witness may NOT testify to any matter of which the witness has no personal knowledge, nor may a witness give an opinion about how the case should be decided. Objections: “Objection. The witness has no personal knowledge that would enable him/her to answer this question/ make this statement.” “Objection. The question asks the witness to give a conclusion that goes to the finding of the Court.” RULE 502: OPINION TESTIMONY BY EXPERTS. Only persons qualified as experts may give opinions on questions that require special knowledge or qualifications. An expert may be called as a witness to render an opinion based on professional experience. An expert must be qualified by the attorney for the party for whom the expert is testifying. This means that before the expert witness can be asked for expert opinion, the questioning attorney must bring out the expert’s qualifications, education and/or experience. Objection: “Objection. Counsel is asking the witness to give an expert opinion for which the witness has not been qualified.” RULE 503: VOIR DIRE. (“To speak the truth.”) After an attorney who has called a witness questions him/her about his/her qualifications, and before the court qualifies the witness as an expert, the opposing counsel shall have the opportunity, if he/she chooses, to conduct voir dire. After the voir dire examination has been conducted, the cross-examining attorney should advise the court as to whether there are any objections to the witness being qualified as an expert witness and/or whether there are any objections to the witness’ expertise to give the specific opinion the opposing counsel is trying to elicit from this witness. Example: (after questioning by an attorney to create a foundation for his/her witness to be qualified by the Court as an expert witness): “At this time, your Honor, I request that the Court accept and qualify the witness as an expert in the field of ….” Objection: “Your Honor, we would like permission to voir dire the witness.” (Oftentimes, the judge will already be looking your way to see if you wish to voir dire.) 6. PHYSICAL EVIDENCE RULE 601: INTRODUCTION OF PHYSICAL EVIDENCE. Physical evidence may be introduced only if it is contained within the casebook and relevant to the case. Physical evidence will not be admitted into evidence until it has been identified and shown to be authentic or its identification and/or authenticity has been stipulated. That a document is “authentic” means only that it is what it appears to be, not that the statements in the document are necessarily true.

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Physical evidence need only be introduced once. The proper procedure to use when introducing a physical object or document for identification and/or use as evidence is (for example): a. Show the exhibit to opposing counsel. b. Show the exhibit and have it marked by the clerk/judge. “Your Honor, please have this marked as Plaintiff’s Exhibit 1 for identification.” c. Ask the witness to identify the exhibit. “I now hand you what is marked Plaintiff’s Exhibit 1. Would you identify it, please?” d. Ask the witness about the exhibit, establishing its relevancy. e. Offer the exhibit into evidence. “Your Honor, we offer Plaintiff’s Exhibit 1 into evidence at this time.” f. The Judge will ask opposing counsel whether there is any objection, rule on the objection if there is one, and admit or not admit the exhibit into evidence. g. If the exhibit is a document, hand it to the clerk/judge. NOTE: After an affidavit has been marked for identification, a witness may be asked questions about it without its introduction into evidence. 7. INVENTION OF FACTS (Special Rules for the Mock Trial Competition) RULE 701: DIRECT EXAMINATION. On direct examination, the witness is limited to the facts and evidence provided in the casebook. If a witness testifies in contradiction of a fact given in the witness’ statement, opposing counsel should impeach (prove untrue) the witness’ testimony during cross-examination. If the witness goes beyond the facts given, such that they directly conflict with the stipulated facts or witness affidavits, a bench conference may be requested by opposing counsel, at which time the counsel may object to invention of facts. (It should be noted that the granting of a bench conference is a discretionary decision of the judge. A request for a bench conference might not be granted.) Objections: “Objection, your honor, the witness is creating facts which are not in the record.” “Objection. The witness is inventing facts that directly contradict case material.” “Your Honor, the witness is intentionally creating facts which could materially alter the outcome of the case.” RULE 702: CROSS-EXAMINATION. Questions on cross-examination should not seek to elicit information that is not contained in the fact pattern. If on cross-examination a witness is asked a question, the answer to which is not contained in the witness’ statements of the direct examination, the witness may respond with any answer which does not materially alter the outcome of the trial. An answer which is contrary to the witness’ affidavit may be impeached by the cross-examining attorney. If the witness invents facts material to the case, a bench conference may be called and, if granted, an objection made to the invention of facts. 8. SPECULATION RULE 801: Speculation, or someone’s idea about what might have occurred, is generally not permitted. A witness may not jump to conclusions that are not based on actual experiences or observations, as this is of little probative value. Some leeway is allowed for the witness to use their own words, and greater freedom is allowed with expert witnesses. Objection: "Objection. This calls for speculation on part of the witness.” 9. PROCEDURE RULES

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RULE 901: PROCEDURES FOR OBJECTIONS. An attorney may object anytime the opposing attorney has violated the Rules of Evidence. NOTE: The attorney who is objecting should stand up and do so at the time of the violation. When an objection is made, the judge will usually ask the reason for it. Then the judge will turn to the attorney who asked the question and that attorney will usually have a chance to explain why the objection should not be accepted (“sustained”) by the judge. The judge will then decide whether to discard a question or answer because it has violated a rule of evidence (“objection sustained”), or whether to allow a question or answer to remain on the trial record (“objection overruled”). RULE 902: MOTIONS TO DISMISS. Motions for dismissal at the end of the prosecution’s case are NOT permitted. RULE 903: CLOSING ARGUMENTS. Closing arguments must be based on the evidence and testimony presented during the trial. Offering new information at this point is prohibited.

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IN THE DISTRICT COURT OF MARYLAND IN AND FOR CLEARWATER SPRINGS CITY

The State of Maryland ) ) ) v. ) ) ) Sam S. Saratoga, ) Defendant )

STATEMENT OF STIPULATED FACTS

In 2010, after voluntary testing revealed dangerous lead concentrations in the pipes of several schools, Clearwater Springs Public Schools (hereinafter CSPS) Superintendent, Dr. Crystal Lagoon, decided to shut down all water fountains in the district and replace them with bottled water coolers. [EXHIBIT A: PRESS RELEASE] In August of 2014, Dr. Lagoon’s successor, Superintendent Dr. Sam Saratoga, elected to reactivate the drinking fountains, citing budget constraints and the expense of bottled water. Tai Tiamat, Supervisor of Custodians for CSPS, expressed safety concerns regarding the possibility of lead contamination in the water. After turning the fountains back on, Tai informed Dr. Saratoga that (s)he would be collecting water samples from the schools and testing them for lead. Tiamat received the results on September 2

nd, 2014, and each sample tested was found to have much higher

concentrations of lead than the Environmental Protection Agency’s action-level of 15 parts per billion (ppb). Tiamat called and emailed Saratoga to discuss the testing and request an emergency Facility Supervisors meeting. The Superintendent did not return Tiamat’s call or email. The next day, Tiamat sent the findings to Saratoga, via Urgent fax. [EXHIBIT B: TIAMET-SARATOGA CORRESPONDENCE] Saratoga did not respond. On October 2, 2014, fifth grade student Perrier Pamukkale had a seizure while in class at Clearwater Elementary. His blood was found to have lead levels requiring hospitalization. The following week, Tai Tiamat, asserting a “crisis of conscience,” sent a mass email to all CSPS families warning of unsafe drinking water in the schools. The following day, Tiamat’s employment contract was terminated. Saratoga sent a letter assuring parents and teachers that it was safe to drink from the fountains. [EXHIBIT C: LETTER] Clearwater Elementary PTA President and Perrier’s parent, Pat Pamukkale, organized a protest in front of the Board of Education, demanding transparency regarding the quality of drinking water in the schools. Following Perrier Pamukkale’s hospitalization, his pediatrician, Dr. Ricki Rotorua, sent the mandated elevated blood lead level reporting form to the Clearwater Springs Department of Health. The Clearwater Springs Commissioner of Health, Dr. Samiria Naya, contacted Superintendent Saratoga and threatened to fine CSPS $100 a day per school, if all fountains were not turned off when students returned from the Thanksgiving holiday. After repeated warnings, Dr. Naya began fining CSPS on Monday, December 1

st, 2014.

On December 22, 2014, Saratoga ordered all fountains turned off. One month later, Perrier Pamukkale was diagnosed with acute ADHD and behavioral disabilities.

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Witnesses for the Prosecution Tai Tiamat, Former Supervisor of Custodians & Lead Abatement Expert Dr. Ricki Rotorua, M.D., Pediatrician Pat Pamukkale, PTA President, Parent of Victim Witnesses for the Defense Sam Saratoga, Ed.M., Defendant, Former Superintendent of Clearwater Springs Public Schools Bobbie Beppu, Hydrogeologist Terry Tatio, M.D., M.P.H, OB-GYN and Medical Toxicologist

Index of Evidence & Exhibits

Counsel for both parties participated in a pre-trial hearing to discuss the admissibility of Exhibit A, B,C, D, E and F and it is hereby stipulated that the following exhibits are the only exhibits that may be used at trial: Exhibit A- 2003 Press Release from the Clearwater Springs Board of Education explaining the

Superintendent’s decision to turn off water coolers at all CSPS schools.

Exhibit B- Correspondence between Superintendent Saratoga and Tai Tiamat- Emails, Phone Messages and a fax

Exhibit C- Superintendent Saratoga’s letter to all students, parents and faculty in CSPS

Exhibit D- Lead Abatement Certification

Exhibit E- Superintendent Saratoga’s employment contract

Exhibit F- Charging Document Clearwater District Court

Also Included: Lead in Drinking Water and Human Blood Lead Levels in the US, CDC – to be used for informational purposes ONLY

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Affidavit of Tai Tiamat, Witness for the Prosecution

1. My name is Tai Tiamat. I am 45 years old. I am the former Supervisor of Custodians for Clearwater Springs

Public School System.

2. I was employed by CSPS for 26 years. I started out as a custodian at Clearwater High when I was a

teenager. Despite years of excellent employee performance evaluations, I was let go in 2014.

3. As a supervisor, I completed the Maryland Department of the Environment’s Lead Paint Training course in

2012. I am well aware of the harmful effects of lead poisoning on children.

4. I am also a Water Treatment Professional and certified member of the Water Quality Association. I was

trained by the State Department of Waterworks and Waste Systems and graduated from the EPA’s

Drinking Water Academy. [EXHIBIT F: CERTIFICATIONS]

5. After I got certified, I started a lead testing business on the side. The number of test requests we receive

has quadrupled since the Superintendent was arrested, this is indicative of the level of fear the community

is experiencing.

6. The EPA recommends that all schools test for lead, even if not required to under the law. The agency has a

voluntary lead reduction program for schools that provides guidance and a tool kit for school officials who

care about student health and safety. I gave Superintendent Saratoga a copy every year. Unfortunately,

some school officials only care about the bottom line.

7. Saratoga told me to call a mandatory meeting with facility managers from each school on August 5th

, 2014.

That’s when the bomb was dropped about turning the water fountains back on. I made it VERY CLEAR that

lead in drinking water is most often inorganic and leached through plumbing, so clean water can become

contaminated in the piping. Lead solder used in the copper piping in all CSPS schools can leak into the

water supply.

8. Saratoga could have remedied the problem by adding chemicals to the water to prevent lead from

leaching through service lines, standard protocol for aged water systems. I told Saratoga that it was not

necessary to replace the pipes. Applying corrosion control to the pipes was a much cheaper alternative.

9. When Sam demanded that I turn the fountains back on without any treatment plan, I voiced my

opposition. Later, in private, I spoke even more directly to Sam about the issue. (S)he responded, “Just so

you know, Tai, no one has job security in these fiscally strained times.”

10. After that meeting, Sam announced to the Board of Education that the fountains were going to be turned

on because Yellowstone was eating up too much of the budget. Board Chair Hayden Huanglong, proposed

contracting with one of several companies that had submitted less expensive bids. Saratoga dismissed the

idea. Sam never told the Board members about my repeated warnings regarding the danger of lead in the

drinking water.

11. I eventually complied with the order to turn on the drinking fountains, because I have a family to support.

I guess I was right about being reluctant to challenge Saratoga’s authority.

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12. Lead concentrations can increase when water goes unused but is still in contact with the plumbing. This

occurs when schools are vacant for summer vacations and holiday breaks. The longer the water has been

turned off, the greater the danger of lead. The water in CSPS was turned off for almost eleven years

before it was turned back on.

13. When my team and I turned the fountains back on in the schools, the water was brown. In some of the

fountains, the water coming out was still brown or a putrid yellow, months later. It had a sour smell. How

could anyone think that was okay for kids to drink?

14. Children were drinking this water every day. The fact that the schools are not required to regularly test

the drinking water is mind-blowing and egregious! There was a moral obligation to test it. I paid out of

my own pocket to test the water in CSPS and trust me, I’m no millionaire. I even absorbed the $100 lab

fee.

15. I went to all of the schools to get samples from water fountains and sinks. I followed the EPA

recommendations for testing drinking water in schools that are not Public Water Suppliers. The EPA

recommends that schools collect 250ml first-draw samples from water fountains and outlets. Outlets

should be taken out of service if the lead level exceeds 15 ppb, the level at which the federal government

requires action.

16. The sample size was designed to identify specific fountains and faucets that required remediation. The

school sampling protocol maximizes the likelihood that the highest concentrations of lead are found. The

first 250mL are analyzed for lead levels after water has sat in plumbing overnight.

17. The test results revealed very high levels of toxicity, and higher than acceptable levels of lead in the water,

at all schools. A water sample taken from an elementary school cafeteria was found to be 41 times above

the EPA’s action level. That is when the substance is considered a “hazardous waste.” This was in the

kitchen, where breakfasts and lunches are prepared for the youth. Water from a sink in one middle school

gym tested at 5,000 ppb of lead, thousands of times higher than the action level. As soon as I received the

test results, I called Sam immediately. Sam’s administrative assistant, Gayle Geyser, said that Saratoga was

in a meeting but would return my call. I emphasized that it was extremely important that Sam call me back

that day. After I hung up, I sent Sam an email. The next day I faxed the test results to the Office of the

Superintendent. The fax was titled UNSAFE DRINKING WATER IN CSPS SCHOOLS. I never heard back from

Saratoga.

18. After a while, my conscience got the best of me. I thought that parents and teachers had a right to know

what was going on with the water, so I sent out an email to all CSPS students and teachers, warning them

not to drink out of school fountains. I recommended that their parents contact the Superintendent’s office

to find out why they were not informed about the situation earlier.

19. The students were exposed to toxic drinking water for an entire semester. That is one semester too long.

The public deserves to know what really happened. I will not quit until the truth is revealed. This wasn’t

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just negligent; it was intentional. Superintendent Saratoga knew that water was bad, but saving money

was more important than the health of teachers and students.

20. Sam was furious about that decision and accused me of being “politicized and inflammatory.” My contract

with CSPS was terminated shortly after.

21. Sam and some of the board members were bombarded with calls and emails from worried parents. Sam

sent out a letter assuring parents that the drinking water in CSPS schools was completely safe.

22. I made sure I was there when the Board of Education held a public hearing regarding Saratoga’s

resignation. Boy was that meeting contentious. Hayden told all the parents, “There was virtually no

communication to the Board regarding the water issues. I myself did not find out about this till you did.”

Saratoga made them all looks like idiots.

23. This crisis is even worse than in 2003, when toxic waste from the factories washed up on the shores of

Clearwater Beach while families were swimming.

24. Our children are vulnerable. It’s time to force public officials like Sam Saratoga to do the right thing and

hold them accountable when they knowingly endanger the health of our young people.

__________________________________

Tai Tiamat

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Affidavit of Ricki Rotorua, M.D., Witness for the Prosecution

1. My name is Dr. Ricki Rotorua. I graduated from the University of Southern California Medical School in

1996 and completed my residency at Clearwater General Hospital. I have been a practicing pediatrician at

the Clearwater Springs Clinic ever since.

2. In my free clinic, I see a disproportionate number of lead poisoning cases compared to the number of cases

reported state-wide. We must ask ourselves why there are substantially more cases of elevated lead levels

per capita in Clearwater Springs compared to the number of children in White Pickett Fence with ELLs.

This is a societal failing.

3. People in communities like Clearwater Springs have faced multiple assaults over different periods of time,

segregation, and housing discrimination. Yet through all of this there is persistent lead poisoning. It

creates a social context where kids are at a clear disadvantage. When I see the astounding levels of lead

poisoning at my clinic, it makes complete sense that it is part of a cycle of deprivation.

4. In the past year, I have testified for the prosecution in over 30 lead poisoning cases, and earned close to

$400,000 in expert witness fees.

5. Symptoms of lead poisoning often do not manifest until the condition is acute. Children younger than

school-age, usually aged six and under, are the most susceptible to lead poisoning. Lead poisoning is

usually treatable; however some of the effects can be irreversible. The degree of damage is dependent on

the amount of lead taken into the body over time. It is not possible to know immediately, the long-term

effects of lead on a child who has been exposed to toxic levels. Lead exposure in childhood may have

effects lasting well into adulthood.

6. A peer reviewed study in the journal Environmental Health found that exposure to lead in early childhood

significantly increased the chance that a child would fail reading and math standardized tests in the third

grade, even when controlling for factors such as poverty, birth rate and the mother’s education level.

7. Lead toxicity may also increase the likelihood that a child will drop out of school and the odds that they will

become involved with the criminal justice system.

8. Sometimes there are no discernible signs of lead poisoning. The Lead Industry has been very successful in

convincing people that lead is not that bad for us. The propaganda they market is very dangerous but they

are a powerful lobby. For years, they have convinced people that lead poisoning risks are overstated and

that doctors are misdiagnosing children as being lead poisoned. Actually, it is more likely that lead

poisoning is under diagnosed because symptoms mimic the results of high fevers and other conditions.

9. There is credible evidence that the lead industry was aware as far back as 1932 that children were being

poisoned by lead, and had collected over 500 scientific articles indicating the correlation between it and a

host of health problems in children.

10. I have dedicated my life to fighting against this entirely preventable plaque.

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11. It has been estimated that the annual cost of childhood lead exposure in the United States is $50 billion.

For every $1 invested to reduce lead hazards society would benefit by an estimated $17 to $221, a cost–

benefit ratio that is comparable with the cost–benefit ratio for childhood vaccines.

12. I have been Perrier Pamukkale’s pediatrician since he was born, and am all of the Pamukkale children’s

doctor. Prior to 2014, Perrier never had any major health issues. I don’t count an addiction to junk food as

a major health issue.

13. I test all my patients for lead at ages 1 and 2. The CDC recommends that children who have a blood lead

level at or in excess of 5 µg/dL (micrograms lead per deciliter of blood) be included in a childhood lead

prevention program.

14. Until recently, a BLL of 10 μg/dL or higher was considered to denote poisoning. A BLL of 45 μg/dL remains

the threshold for consideration of chelation therapy. The CDC changed the threshold due to compelling

evidence that even low BLLs are associated with IQ deficits, slowed growth, anemia, hearing problems,

cardiovascular, immunological and endocrine effects, attention-related behaviors, dyslexia and poor

academic achievement. Thus, there is no safe BLL.

15. Perrier Pamukkale did not have elevated blood lead levels (BLL) at either age 1 or 2.

16. Pat brought Perrier in to see me after he had a seizure at school.

17. When I examined Perrier, he presented with altered mental status and appeared mildly dehydrated, with

concentrated urine and poor appetite. When he spoke, I noticed his gums were discolored and blue. I

sent him for a computed tomography (CT) and decided to test for lead poisoning.

18. At higher blood levels, Pb2+

1disrupts the function of endothelial cells in the blood-brain barrier. The

microvasculature of a child’s developing brain is uniquely susceptible to high-level lead toxicity,

characterized by cerebellar hemorrhage, increased blood-brain barrier permeability, and vasogenic edema.

Previous studies on the toxic effects of lead on the brains of young animals have shown damage to the

blood-brain barrier, which in severe forms appears as a hemorrhagic encephalopathy.

19. Encephalopathy is considered the most detrimental lead health hazard. It may lead to brain damage

resulting in disabilities, blindness, coma and even death.

20. I performed a rapid bedside glucose determination and obtained serum pH and electrolyte levels, including

calcium, magnesium and phosphorus. After conducting a urinalysis, I checked for anion gap acidosis that

may be present in co-ingestions. Perrier’s complete blood count (CBC) was analyzed for hypochromic

microcytic anemia.

21. Whole blood lead level (BLL) is the criterion standard for confirming the diagnosis of lead poisoning. A

finger stick capillary lead level was used for screening. Properly collected capillary samples have a 10%

false-positive rate.

22. Perrier’s blood had a BLL of 72 μg/dL.

1 Lead, ion (Pb2+)

20

23. I ordered a confirmatory venous BLL. Since the presence of elevated lead levels higher than 55 mcg were

detected, I also obtained Erythrocyte protoporphyrin (EP) as an adjunct for the diagnosis.

24. Patients with a BLL 70 μg/dL or higher, require hospitalization. Perrier was admitted to Clearwater

General, where chelation therapy with dimercaprol and calcium disodium edetate (EDTA) was initiated.

25. Perrier had developed a hemorrhagic encephalopathy, which explained the seizures.

26. When Perrier was released from Clearwater General, I began closely monitoring his BLLs. All children in

treatment for lead poisoning need continual follow-up care. Cardiovascular and mental status must be

regularly examined, an adequate urine output must be maintained, while renal and hepatic functions

frequently assessed.

27. I put Perrier on a strict, nutritious diet high in iron and low in fat. Iron and calcium, vitamin C block lead

from being absorbed into red blood cells and then distributed throughout the body. No more Mickey D’s

for him.

28. I also paid close attention to any differences in Perrier’s behavior. Pat Pamukkale reported that he was

getting into a lot more trouble at home and school. He was also struggling academically. Using the DSM-

IV, I diagnosed him with Attention Deficit Hyperactivity Disorder (ADHD).

29. A nationally representative study of 8- to 15-year-old children, found that having a blood lead

concentration >1.3 μg/dL was associated with an elevated risk for ADHD. It is estimated that 1 in 5 cases

of ADHD among US children have been attributed to lead exposure.

30. My daughter, Sierra, suffered a miscarriage in September of 2014. After Perrier came in, I started thinking

that the water at her school could be the cause. She is a teacher at Clearwater Springs Elementary and

made an effort to drink lots of water and eat healthy while she was pregnant. I tested her and she had an

elevated BLL. I was furious.

__________________________________

Ricki Rotorua, M.D.

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Affidavit of Pat Pamukkale, Witness for the Prosecution

1. My name is Pat Pamukkale. I am 44 years old. I am a parent of four children and the President of the

Clearwater Elementary PTA.

2. I have worked at the Poll U. Ter plant for twenty years.

3. My address is 54 Fountain Freeway in Clearwater Gardens in Clearwater Springs, Maryland.

4. My children have attended Clearwater Springs public schools all their lives. Three attend Clearwater

Elementary; Acadia is three years old and in Head Start, Evian is in third grade and Vedava is a fifth grader.

My eldest, Perrier is now in 7th grade at Clearwater Middle.

5. My spouse passed away in 2013, in a suspicious car accident, after bringing to light some environmental

violations they observed working at Poll U Ter’s plant.

6. Until the 2014-15 school year, my son Perrier NEVER had any health or behavior issues. That fall, I began

to notice that he was very lethargic when he came home from school. He frequently complained of

stomach pains and stopped eating. Any parent knows that it is extremely odd for a growing boy not to be

hungry!

7. In October, Perrier developed rashes around his mouth. I took Perrier to the Clearwater Springs Skin Care

Institute, and their chief Esthetician told me that his rashes were likely caused by something that he was

drinking. Perrier also started suffering debilitating headaches.

8. When Perrier had a seizure at school. Dr. Rotorua diagnosed with “lead intoxication” and rushed to the

hospital. It was every parent’s worst nightmare.

9. After I got that email from Tai Tiamat, I really flipped out. I mean, we assume the water is safe when we

send our kids to school.

10. I called Saratoga’s office and explained that I am a parent concerned about toxins impacting the health of

CSPS students and asked to set up a private meeting. The Superintendent’s assistant called me back and

said that Saratoga’s calendar was full and that Sam could not see me for the next few months. Apparently,

Sam Saratoga had more important things to do than meet with a parent concerned about their child’s

health. I found out from an inside source that Sam was telling people that (s)he would not meet with “that

pot-stirring Water Wacko.”

11. Dr. Rotorua recommended that all of my kids get tested for elevated lead levels after Perrier came home.

I was horrified to learn that all of my children had been exposed to much higher than average levels of

lead. I worry about that because Acadia is so young. She will be the most impacted by the poisoned

water. She has already been diagnosed with hearing issues.

12. I have educated myself about this issue and know that my children are not being lead poisoned in my

home. I have a filter on our water faucet at home. I personally dry scraped and removed all lead paint and

thoroughly cleaned the home from wall to wall. I keep a very clean house.

22

13. A couple of months after Perrier came home from the hospital, his teachers requested a meeting to

discuss his declining grades and difficulty following classroom rules. I wasn’t surprised. I was having a hard

time controlling him at home. In the past, Perrier was a straight A student and received glowing reports

from his teachers.

14. I believe that Perrier’s health, academic and behavior issues have been directly caused by lead in the

school’s drinking water.

15. Perrier’s medical expenses have put a tremendous financial strain on our family. Luckily, I have picked up

some extra income as the new spokesperson for Yellowstone Bottled Water.

16. I consider myself a lead poisoning advocate and am passionately fighting for justice for children. I have

organized several protests at the CSPS School Board Headquarters, demanding full transparency regarding

the drinking water. I have marched, held meetings, picketed, petitioned, made phone calls and begged

school officials to do their job.

17. I created a Takeaction.org petition calling for criminal charges to be filed against Sam Saratoga. Over 2,000

people signed it but nothing happened. Eventually, I went to the courthouse and submitted a criminal

complaint myself.

18. While I am a little surprised at all the attention that my advocacy has garnered, I really get a kick out of

seeing myself on T.V. I hate it when they capture me on screen smoking, though. I have been trying to

quit but the stress from all of this is too much.

19. Right after Thanksgiving, I organized another rally at the Board of Education demanding that fountains be

turned off. Saratoga had me arrested. I didn’t mind. It was my Erin Brockovich moment.

20. This is about the superintendent’s failure, unpreparedness, delay, inaction and environmental injustice. If

a landlord knows there is lead paint and does not inform the tenant, the landlord can be held liable. Why

shouldn’t school officials be held to the same standard?

21. I believe that Superintendent Saratoga knowingly allowed our children to drink poisoned water, and has

been covering this up. I have lost all trust in our school system. Sam Saratoga’s deception and failure to

notify parents of the condition of the water, denied families the ability to provide a safe alternative for our

children.

22. Our children are subjected to “zero tolerances” policies. Where is the accountability for those who have a

duty of care to keep them safe at school? The people running the system knew that there was a problem

and didn’t deal with it. That’s a smoking gun, or at least a dirty glass of water.

__________________________________

Pat Pamukkale

23

Affidavit of Superintendent Sam Saratoga, Defendant

1. I am 62 years old and the former Superintendent of Clearwater Springs Public School System in Clearwater

Springs City, Maryland, a city of 245,000 people. I served as superintendent of CSPS for just over two

years.

2. I hold an Ed.D. in School Administration and Leadership from Columbia University Teachers College, an

Ed.M. in Science Education from Johns Hopkins University and a B.A. in Environmental Studies from the

University of Maryland, Baltimore County.

3. My salary in 2014 was $275,000.

4. I signed the contract to become Superintendent on July 1st

, 2012 [EXHIBIT G: CONTRACT] after serving as

interim superintendent following the resignation of my predecessor, Dr. Crystal Lagoon. Dr. Lagoon

elected to take an “early retirement” after it was revealed that she had accepted financial compensation to

award Yellowstone Bottled Water Company a contract with CSPS. I assumed that she switched to bottled

water for her own profit.

5. Before I was appointed Superintendent, I was the principal of Clearwater Springs High School and taught

Advanced Placement Geology for twelve years there.

6. Due to biased, sensationalized media coverage and very vocal protests from some histrionic parents, I was

asked by the State Superintendent of Schools to step down from my role as Superintendent of CSPS in

January of 2015.

7. As Superintendent, I was responsible for ensuring a high quality education and a safe environment for

students at each of our schools, as well as maintaining a balanced budget.

8. CSPS is served by the city of Clearwater Springs Public Water System. We participate in the National School

Lunch Program and the School Breakfast program, with around 72% of our students receiving free or

reduced cost meals. As such, we are required by the United States Department of Agriculture (USDA) to

provide plain (i.e., no flavoring, additives, or carbonation) drinking water available to students, free of

charge, during the breakfast and lunch meal periods at the locations where meals are served.

9. The city of Clearwater Springs cut the education budget substantially for the fiscal year 2014. My FY 2014

Operating & Capital Budget was cut by 26% and the FY-20 Capital Improvement Program was reduced by

over 50%.

10. I had to make some difficult choices. I saved the jobs of many of the teachers who later called for my

resignation.

11. During FY2012, CSPS spent $850,000 on bottled water. That same year, we were forced to cut several

academic and extracurricular programs due to fiscal restraints.

12. These parents don’t realize it was their taxpayer dollars footing the bill for all these bottles of water. If

they had been told how much they have spent paying for water throughout the years, they would have

24

been even more up in arms then they are now. It’s always amazed me how convictions change so rapidly

when someone realizes money is coming out of their own pockets.

13. Before making the decision to turn on the fountains, I read a report from the Clearwater Springs

Department of Water and Gas, the Consumer Confidence Report. It stated that everything was fine with

the water coming into our schools from Clearwater Falls.

14. In August of 2014, before the start of the academic year, I made the decision to turn the water fountains at

all CSPS Schools on, due to a deficit and the extreme expense of bottled water.

15. All of the superintendents in neighboring districts made the same decision, except for one, White Picket

Fence School District, and they have a substantially larger budget than we do.

16. I had my assistant research how much it would cost to replace the copper pipes in our schools and do

some feasibility studies. After doing some comparison shopping, they reported an estimate of $5,000 per

pipe, averaging $625,000 per school. There was no way that was going to happen.

17. I held a meeting with the CSPS Facility Supervisors in early August of 2014 to let them know my plan to

turn the water back on. Tai Tiamat objected, of course. Tiamat has always been a “worst case scenario”

type of person.

18. I did not believe it was appropriate for Yellowstone’s Bottled Water Company, our supplier, to be

marketing the use of their costly and environmentally harmful products to young people. We were

accumulating massive amounts of waxy plastic cups each day, and the city of Clearwater Springs cut the

funding for recycling years ago. There were cups littered throughout the hallways of our schools. This sent

a message to our students that we did not care about waste.

19. The students themselves petitioned to get rid of the water bottles. A group of students at Clearwater

Middle formed an Environmental Awareness Club. They sent my office a letter stating that we could “Save

trees and save money” if we eliminated the use of all of the plastic cups. They also recognized that saving

money would result in “more field trips and art supplies.”

20. In 2011, I read a recommendation released by the Maryland Department of Natural Resources and the

Maryland Legislature’s Green Purchasing Committee urging all state agencies to phase out spending on

bottled water and support public, tap water. The Committee was praised by the Commission on Corporate

Accountability when they sent it out. That made a lot of sense to me, so we haven’t used bottled water in

our own offices at the Department of Education since we moved to the new building a few years ago.

21. Our faculty was being forced to spend time and energy refilling water, instead of concentrating on

teaching and learning. I remember when I was a principal it was very strenuous to carry those large

Yellowstone Water jugs.

22. One teacher suffered a serious back injury from lifting a jug. We had to pay him workers compensation

and his students were taught by an uncertified substitute for the remainder of the academic year.

25

23. Bottled water was also causing disciplinary issues at many schools. Students were walking through other

teachers classrooms to get to the cooler, disrupting lessons.

24. The water coolers also provided another excuse for kids to be out in the hallways, where most of our

discipline problems occur. At Clearwater High, during the 2012-13 school year, 27 students were

disciplined and 19 were suspended for engaging in a disruptive and dangerous “water fight,” using the

plastic cups, causing them to miss valuable instructional time.

25. On several occasions, teachers complained to me that students drinking from plastic cups spilled water all

over their work, destroying it.

26. A survey of parents and teachers that I commissioned when I took office in 2012, found that installing air-

conditioning units was their top facilities priority; air problems that exacerbated asthma conditions, were

making it difficult for affected students to concentrate on schoolwork. I take parent and teachers’

concerns seriously. Most of the school buildings in our district are over 70 years old. I determined that it

was more important to invest the infrastructure budget on air conditioning and the repair of structural

hazards that could cause immediate harm to students, such as leaking roofs, outdated fire alarm systems

and keeping the heat on in the winter, than on expensive, voluntary lead testing.

27. I did not feel it was necessary or a responsible decision to alarm all of the parents by making issues with

drinking water available to the public. I wanted to have time to institute a remedy first and ensure that the

data was correct. There is a lot of bad data out there. The last thing that CSPS needs is widespread panic.

28. At some point, Tai Tiamat gave me a guidance document regarding standards for school drinking water,

but I didn’t have time to read that huge packet. It was entitled 3 T’s for Reducing Lead in Drinking Water in

Schools and over a hundred pages long. It probably ended up in the middle of one of the massive piles of

things on my desk that I was supposed to miraculously find the time to read.

29. I knew that while working for me, Tai Tiamat was also working as the owner of a company that conducts

environmental testing and he personally earns a considerable income in testing and subsequently advising

his customers.

30. The majority of my time is spent dealing with teachers’ unions and the PTA. Pat “Hollywood” Pamukkale

will do anything for attention and was a real pain in my neck.

31. CSPS serves over 47,000 children. A significant population of our students live in Clearwater Gardens, a

housing complex that was built in the 1920’s, and is very dilapidated and run-down. One of the greatest

challenges that I faced as a superintendent is that many of the young people in our school system are

facing the academic, physical and emotional obstacles imposed by poverty.

32. I attended an in-service training about the health impact of poverty. Many CSPS students are greatly

affected, both psychologically and physiologically, by trauma arising from unstable households, lack of

access to adequate medical care, and neighborhood violence. This toxic stress is hampering their ability to

learn much more than anything in the water.

26

33. I was trying to keep students safe in an era where kids are coming to school with guns. I was focused on

preventing students from bringing metal into our schools, not metal in the pipes.

34. I recognize that some innocuous mistakes may have been made and encouraged a closer look at the CSPS

systems, protocols and policies that were currently in place. We were experiencing a great deal of internal

and external communication problems. When all this lead stuff hit the fan, I did some restructuring and

fired or placed on administrative leave, those employees who were not fulfilling their professional

responsibilities sufficiently.

35. If we are going to start scrutinizing every decision the superintendent makes and branding them criminals

if we don’t agree with a particular choice, it is really going to limit their ability do their job.

36. Signs have now been placed on all faucets instructing the students not to drink the water. According to

these lead “experts,” only hand-washing is permitted. I ask you, if the water is so unsafe, why is hand

washing allowed? Elementary school students always have their hands in their mouths.

__________________________________

Sam Saratoga, Ed.D

27

Affidavit of Bobbie Beppu, Witness for the Defense

1. I am 59 years old and have a Ph.D. in Environmental Science with a concentration in Hydrogeology, from

SUNY College of Environmental Science and Forestry (SUNY-ESF). I am a professor of Environmental

Science Policy at Princeton University.

2. Superintendent Saratoga’s decision to turn on the water fountains in the CSPS system is understandable if

you examine it from the position of a school administrator relying on current law and public policy to make

decisions.

3. Sam Saratoga is a scapegoat for a much bigger problem. There’s a regulatory black hole when it comes to

schools and day-care centers… In some ways, it’s an official endorsement of exposure to lead and large-

scale health harms that go undetected.

4. Only about 10% of schools in the US are required to test drinking water for contaminants. Three times

over the past decade, Congress has declined to pass legislation that would have required schools to test for

lead and make the results public.

5. In the past five years, federal and state officials all over the country have cut funding to screen kids, inspect

properties and eliminate lead hazards. Since 2006, the budget of the EPA drinking water office has been

slashed by 15% and the staff has been cut back by 10%.

6. If we allocate resources for lead testing now, we will save money on health care, special education and

even law enforcement in the future.

7. Thus, the government sends the implicit message to school leaders that lead does not pose a significant

risk to their students. We can’t expect school leaders to be experts in environmental issues. If the

legislature isn’t making the safety of school drinking water a priority, how can we expect a superintendent

recognize its importance?

8. Lead poisoning advocates cite difficulty in getting by-in from education foundations, principals and

superintendents about the impact of lead in the classroom. Sam Saratoga is not alone.

9. While in reality, it is pretty rare for young people to be lead-poisoned through water, that doesn’t mean

that we should not be allocating resources for testing drinking water. It is true that 70% of exposure

occurs from lead paint in older homes, schools and other buildings, or in surrounding soil and dust, which

has accumulated and bound lead over the decades from airborne pollution, but lead poisoning can occur

from water.

10. Moreover, we need to regulate how school water is tested. Many sampling procedures produce

inaccurate results. I would not trust the water samples used by the prosecution. Water conditions

fluctuate, a one-time test is not sufficient. Anyone who is educated in this area would be highly suspicious

of the integrity of that data.

28

11. It is very possible to get drastically different results if the water in CSPS schools is tested again. Test three

more times, three different results could be found on three different days. Many factors including, how

long the water is “flushed” and how long the water has been sitting can impact the results.

12. If the drinking water in CSPS is contaminated, the blame does not lie with the Superintendent. The

Maryland State Government bears responsibility for insufficiently funding the school system. School

systems must receive funding earmarked for lead removal and testing. The Superintendent cannot be held

responsible if the state did not provide the proper resources. School leaders in disenfranchised

communities should not have to choose between heating buildings and clean water. The resource gap has

serious implications for public health.

13. Policy changes and increased regulations are the answer. Let’s expand our national conversation on this

country’s water infrastructure. We need to bring Maryland’s laws up to speed, mandating systemic testing

for lead in schools. Right now, around 10 other states have fairly sophisticated structures in place. If we

really care about this issue, we need to take action that will make a difference. Spending tax dollars that

could be used toward clean drinking water to incarcerate Superintendent Saratoga is absurd when we

have many more important things to spend money on.

14. Sammie Saratoga and I have been friends for years. Our children go to White Pickett Fence High School

together.

__________________________________

Bobbie Beppu, Ph.D.

29

Affidavit of Terry Tatio, M.D., Witness for the Defense

1. My name is Dr. Terry Tatio. I am 67 years old and have been a medical toxicologist for over 40 years. I am

also a board certified OB/GYN. I graduated summa cum laude from the University of Maryland Medical

School. I received my Masters in Public Health with a specialization in Environmental Health Sciences-

Epigenetics, from the University of Michigan.

2. I have four grandchildren, all of whom attend Clearwater Springs public schools. None of my

grandchildren have demonstrated any symptoms of lead poisoning.

3. I can’t believe the absurdity of this generation. Buying water. I read an article back in college in the 60’s

that forecasted a terrifying future where consumerism is so rampant, water is for sale. Here we are. Water

used to be a public service; it should not be a private commercial commodity.

4. What is next, we are all going to be paying for the air we breathe? I see that coming with these trendy

“oxygen bars” popping up everywhere.

5. Lead is present in many different places, and inescapable. It has been for 6,000 years. Everyone has

absorbed low levels doses of lead throughout our lives, referred to as “background lead level.” Lead is

even found in some foods.

6. Lead in drinking water does not necessarily result in lead poisoning. When voluntary tests were done in all

of CSPS schools in 2010, all of the school fountains were discovered to have elevated lead levels, however

none of the students tested at the same time were found to have lead poisoning. Over a hundred students

were tested, from a sample representing each school in the district.

7. The term “lead poisoning” in itself is quite arbitrary and wide-ranging. When I first started practicing, the

level of concern was 40 g/dl, and then dropped to 10 g/dl, and now it is 5 g/dl. Even these numbers are in

dispute by experts.

8. I’ve seen plenty of kids who had BLLs at “action” rates, turn out just fine.

9. Lead does not cause a “signature disease.” Many other physical and environmental conditions can cause

similar symptoms. For example, traumatic or unstable home lives can result in academic, emotional and

physiological problems. You have to ask, “Is this kid failing to thrive because of her lead exposure? Or,

might it be the consequence of something else entirely like unlucky genetics, a chaotic home environment,

or her mom’s poor prenatal care?

10. Similarly, in pregnant women, miscarriages and premature births can be caused by lead but also by lots of

other things.

11. Diagnoses of learning and behavior disabilities have skyrocketed over the past decade. The supposed

correlation with lead is called into question by the fact that now, after all the lead regulations have been

instituted, far more cases are being identified than in the 1970’s.

12. A little while ago, all the hippie parents blamed everything on vaccines. Then their kids all got the measles.

Talk about reckless. Due to this media attention, lead is the new culprit for anything that goes wrong in

their lives.

13. Parents are attributing every growing pain and stomachache to lead. For example, rashes are not a usual

symptom of lead poisoning but I have heard parents fret that their kid has lead poisoning when really they

have acne. A kid has pimples, they want to blame lead. Their kid doesn’t listen- blame lead. Their kid isn’t

a rocket scientist- must be lead.

14. I recently read an article in the Washington Post and some moron was trying to blame the fall of Rome on

lead in the water pipes. Gimme a break.

30

15. Parents are so alarmed that the water coming out of some school fountains was brown. However, brown

color is not a result of lead in the water. It can occur when iron is oxidized through exposure to chlorine at

a treatment plant. While taste and odor containments like iron contribute undesirable aesthetic effects

such as color, odor, cloudiness and bad taste, they actually do NOT impose a health risk.

16. Poor nutrition can increase a child’s risk of high levels of lead being absorbed in the blood. The school

vending machines are full of sugary, high caloric sodas with dehydrating caffeine. Sugar is a true poison

and linked to numerous health, learning and behavior issues.

17. Not that bottled water is a healthier choice. I published an article, Tapping into Healthier Schools-

Dismantling the Lunacy of Plastic Bottled Water Coolers.

18. In a recent study, over 24,500 chemicals were found in one bottle of water. The authors described a bottle

of water as a “toxic fountain.” I wholeheartedly support Sam Saratoga’s wise decision to stop supporting

these huge rich water corporations that are largely unregulated.

19. The problem is not even in the water, which people think comes from Bali or Bora-Bora, or some beautiful

place, but in truth, 25% is straight out of the tap. The problem lies in the vessel- plastic bottles. In the

plastic are hormonally active chemicals and potent endocrine disruptors. Small children and pregnant

women are especially susceptible to these chemicals. They can cause stunted growth, premature birth and

reproductive problems, amongst other issues.

20. Further, these old schools do not have air conditioning. The water coolers are stored in hot closets. Heat

can enable cancer causing toxins like Dioxin and BPA, to leak from plastic into the water. These companies

that supply the schools use the cheapest plastic bottles, of course. Most are labeled 7 and PVC, which are

the most toxic.

21. Even if the city had the capacity to recycle, 6 out of 7 of these plastic coolers in the United States are

“down cycled” which means they are sent to a landfill to break down over decades and leach their

poisonous chemicals into our watersheds and soils. Now that is a health risk we need to pay attention to.

22. I grew up in the 50’s when everything was made out of lead. Toys, paint, gasoline, you name it. I became

a doctor. Is my whole generation brain-damaged?

__________________________________

Terry Tatio, M.D

31

EXHIBIT A

CITY OF CLEARWATER SPRINGS MAYOR A. ALPINE

CSPS Crystal Lagoon, Ed.D. Superintendent Of Schools 19 Achelous Avenue Clearwater Springs, Maryland 28504

PRESS RELEASE For Immediate Release August 23, 2010

Clearwater Springs City Public Schools’ Superintendent Dr. Lagoon Announces System-wide Shift to Bottled Drinking Water CLEARWATER SPRINGS—Clearwater Springs City Public School System Superintendent Dr. Crystal Lagoon

announced a system-wide shift to bottled drinking water for students, teachers, staff, and visitors today. All schools will

comply with the shift by Friday, August 27, 2010. The re-evaluation of the overall policy was prompted by new testing

that found several water fountains that had passed previous tests for lead and were permitted to return to use had

subsequently failed.

“Parents, students, and teachers prefer the bottled water,” said Dr. Lagoon. “Maintenance of the existing water fountains is

not worth the expense and concern. It is more cost effective to provide bottled water than to continue to flush, test, and

review hundreds of water fountains across the school system each year.”

Recent random testing by the health department found lead levels in water fountains to be much improved from 1990

when all the fountains across the system were shut down. However, despite the school system’s best efforts to maintain

the water fountains and to make them fully operational, a small percentage failed to meet the cutoff levels.

The Clearwater Springs Health Department collected samples of water from working fountains in 5 randomly selected

schools, all of which also offered bottled water to students. The laboratory of the Maryland Department of Health and

Mental Hygiene performed the tests.

Of 42 working fountains tested at all 3 schools, 32 had levels of lead below the cutoff level of 20 parts per billion.

However, 10 fountains had levels above the cutoff level. The fountains were immediately shut off.

“What concerned us was that the fountains that failed this time around all had previously passed tests, and all had

replacement parts,” said Dr. Samiria Naya, Commissioner of Health. “Since our goal is 100 percent confidence, the best

approach is to switch to bottled drinking water.”

“We don’t want water fountains to be a distraction to the teaching and learning taking place in the classroom,” said Dr.

Lagoon. “We want to make sure our children, teachers, and staff have clean water to drink so we can concentrate on

education.”

A financial review showed that the cost of bottled drinking water for the school system is expected to be approximately

$775,000 per year. By comparison, the school system is paying approximately $400,000 for bottled water in schools

without adequate numbers of working fountains, $300,000 for staff and consultants to oversee the testing program, and

$75,000 for laboratory analysis. In addition, hundreds of custodians spend time flushing each water fountain every day,

and many other school system and health department employees are involved in reviewing and approving results. In the

future, exceptions may be granted on a school-by-school basis, such as for schools that have entirely new piping and

fixtures.

32

EXHIBIT B

On Mon 11 Aug 2014 at 2:49 pm, Saratoga, Sam <ssaratoga@csps.edu> wrote: Tai, Please be advised that all water fountains must be turned on in every CSPSS school building prior to the first day of school August 25. Bottled water will no longer be available due to budget constraints. Sam Sam Saratoga, Ed.D.

Superintendent of Schools Clearwater Springs Public School System Tiamat, Tai From: Tai Tiamat <ttiamat@csps.edu> Sent: Mon 8/11/2014 3:01 pm To: Saratoga, Sam <ssaratoga@csps.edu> cc: Geyser, Gayle <ggeyser@csps.edu> Subject: Re: Proposed Plan to Reinstate Drinking Water Fountains Sam, Your decision to turn the water fountains on in CSPSS is against my strongest objection, as I expressed to you during the Supervisors’ meeting on August 5th. I reiterate my prior warning that, given the copper solder in the water serving lines and pipes in all of our schools, high concentrations of lead may have seeped into the water. Further, water cooler models manufactured by the Halsey Taylor company between 1978- 1987 and installed in CSPSS schools include; HC14WTH (CS Elementary), HC14W (CS Middle) and HCBF7D (CS High). Please consult your copy of the EPA booklet that I distributed during our meeting, “Lead in Your School’s Drinking Water,” and note that these models contain solder joints made from a 50/50 tin lead combination. Those old things are so noxious that selling them can get you up to 5 years in jail under the Safe Drinking Water Act! We could them replaced by the Consumer Product & Safety Commission if the tanks themselves were lead-lined but that is not the case with our coolers. Back in 2003, (you remember, the Lagoon era, right? Ha, how could we forget?) the lead level from one fixture at Clearwater Springs Elementary tested at 1,700 parts per billion. This was not an issue localized to one outlet, on average fixtures at CSE tested around 164 parts per billion. Action level is 15 parts per billion. There is no reason to believe the water quality will have improved without treatment. Rather, it is very likely that after sitting without use for 12 years, lead levels have increased substantially. At these levels, simply “flushing” the water will not remedy the problem. The water must be treated with properly designed submicron filtration with absorption media and retested several times before it can be determined safe for use. I recommend sending water samples to a lab that uses Graphite Furnace Atomic Absorption (AA), the most reliable method. It should only be around $7-30 to test per sample. Surely we have that in the budget. I know it’s not being spent on my salary, lol. I will also need time to adequately train staff in the monitoring process. I do not anticipate that the water could safely be turned on anytime in the near future. Lead in drinking water can potentially cause a range of serious health issues including, but not limited to,

33

behavior problems (we don’t need any more of those), brain damage, decreased IQ, and hearing and speech disabilities. I know the State is on your back about getting those test scores up and students with lead poisoning perform worse in school compared to peers who have not been exposed. Even low levels of lead can cause irreversible harm. Pregnant teachers and staff members are also at risk. Please contact me with any questions or if I can provide more information relating to this matter. Best, Tai Tai Tiamat

Head Facilities Manager Clearwater Springs Public School System

On Mon 11 Aug 2014 at 3:11 pm, Saratoga, Sam <ssaratoga@csps.edu> wrote: Tai, We have not renewed our bottled water contract with Yellowstone. The water coolers must be turned on in every school. If you do not enable the fountains, students will not have water to drink during the day and during afterschool athletics. I cannot open CSPSS schools if there is not access to drinking water. Please inform me when you have taken care of this. Sam Sam Saratoga, Ed.D

Superintendent of Schools Clearwater Springs Public School System Tiamat, Tai From: Tai Tiamat <ttiamat@csps.edu> Sent: Fri 8/15/2014 4:47 pm To: Saratoga, Sam<ssaratoga@csps.edu> cc: Geyser, Gayle<ggeyser@csps.edu> Subject: Re: Turn Them On Sam, My team has reactivated the water coolers in all schools. It is imperative that the water is tested for lead. I will be collecting samples from each school and taking them to my lab at Mizuchi to determine if the water is safe for drinking. I will prioritize the processing of the samples and hope to present my findings to you by the end of next week. I told my lab staff “to get the lead out” and have the results to me ASAP. This is too important to drag our heels on.

Tai Tiamat

Head Facilities Manager Clearwater Springs Public School System

34

Tiamat, Tai From: Tai Tiamat <ttiamat@csps.edu> Sent: Tues 9/02/2014 9:07 am To: Saratoga, Sam <ssaratoga@csps.edu> cc: Geyser, Gayle <ggeyser@csps.edu> Subject: WATER NOT SAFE TO DRINK Sam, I just tried to call you. I received the results of the testing conducted on the drinking fountain samples I took from the schools. Not good. We need to speak. Call me.

Tai Tiamat

Head Facilities Manager Clearwater Springs Public School System

34.A

FAX Mizuchi Water Quality Consulting 6 Achelous Avenue Clearwater Springs, MD 20000

TO:

Ssaratoga@cspss.edu

FROM:

Ttiamat@cspss.edu

FAX:

517-555-5555

PAGES:

22

PHONE:

(410) 999-9999

DATE:

September 3, 2014

RE:

UNSAFE DRINKING WATER IN CSPS SCHOOLS

CC:

Urgent For Review Please Comment Please Reply Please Recycle Comments:

TESTING RESULTS ATTACHED. DRINKING WATER IN CSPS SCHOOLS CONTAMINATED- HIGHLY TOXIC. STUDENT SAFETY AT RISK. IMMEDIATE ACTION REQUIRED.

Exhibit B

35

Telephone Message Slip

Caller Name: Tai Tiamat Message For: Dr. Saratoga

Desig & Company: Facilities Supervisor

Message: Wants to schedule an emergency meeting to discuss

water

Date: 9/2/2014

Call Time: 9:04 AM

Number: (410) 222-2222 Needs to speak with you ASAP

Call Back Number: Same as above

Call Received By:

G. Geyser

EXHIBIT C

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SAM S. SARATOGA, Ed.D. SUPERINTENDENT OF SCHOOLS

CLEARWATER SPRINGS PUBLIC SCHOOLS 19 Achelous Avenue Clearwater Springs, Maryland 28504

October 14, 2014 Dear CSPS Family, It has come to our attention that some unsubstantiated claims have been made regarding the safety of drinking water in our schools. Clearwater Springs is not Flint. There appears to have been no identifiable public health impact to students or staff from the elevation of lead in drinking water. Currently, we do not have a lot of information regarding the few isolated samples that provoked an irresponsible and inflammatory response from a former CSPS employee, including how they were collected and from what sources they were taken. It is likely that the samples were taken from fountains not in high use. These sampling procedures may have produced inaccurate results. I personally would drink out of any fountain in CSPS. We are working on a plan to devise more aggressive flushing protocols for CSPS which will require authorities to run water at fountains and taps for a certain period of time to bring in fresh water that has not been sitting in the pipes. Experts have assured us that it would be extremely unlikely for a child to have elevated levels of lead in their blood solely from drinking the water in school. We regret any inconvenience or unnecessary alarm. CSPS is committed to the safety of our students, it is our highest priority. I am an advocate for you. In order to alleviate any fears you may have, I have attached a copy of the Consumer Quality Report published earlier this year by the Clearwater Springs Department of Water. Sincerely,

S. Saratoga

CSPS

Lead Abatement/Drinking Warer Cert

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38

EXHIBIT E

THIS EMPLOYMENT CONTRACT is entered into this 1st day of July, 2012, by and between the Board of Education

of Clearwater Springs, Maryland (hereinafter “Board”), and Dr. Sam S. Saratoga (hereinafter “Superintendent”).

WHEREAS, the Board desires to employ the Superintendent to perform the job of Superintendent of Clearwater

Springs Public Schools (CSPS), including the duties and responsibilities set forth in the Education Article of the

Annotated Code of Maryland and applicable provisions of the Code of Maryland Regulations (COMAR), and

WHEREAS, the Board and the Superintendent agree that a written agreement is necessary to define and govern the

relationship between them and that such employment shall be governed by this Contract to the fullest extent consistent

with applicable law.

NOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:

1. TERM. The Superintendent’s term shall begin July 1, 2012, and (s) he shall serve as Superintendent of CSPS

system until June 30, 2016.

2. PROFESSIONALCERTIFICATION AND RESPONSIBILITIES.

A. Certification- The Superintendent affirms that (s)he meets the qualifications of Section 4-201(c)(1) of the

Education Article of the Annotated Code of Maryland and Section 13A.12.04.03 of COMAR to allow her/him to hold

the position of Superintendent of Schools for Clearwater Springs City, Maryland. The Superintendent further agrees

that (s)he will maintain any and all certifications, required under Maryland law, necessary to hold the position of

Superintendent.

B. Duties- The Superintendent shall have charge of the administration of the schools under the rules and regulations

of the Board and in accordance with the Education Article and other applicable provisions of the Annotated Code of

Maryland.

(S)he shall be the executive officer, secretary and treasurer of the Board and shall perform all duties incident to the

Office of the Superintendent of Schools, including, but not limited to, those as described and defined by Sections

4-204 and 4-205 of the Education Article of the Annotated Code of Maryland. The Superintendent or his/her designee

shall attend all meetings of the Board, and its committees, participate in all Board deliberations and provide

administrative recommendations as warranted. subject to the authority of the State Board under § 2-205(e) of the

Education Article, and acting as the executive officer of the board, the Superintendent shall conduct all

correspondence; receive all reports from principals and teachers; and see that all reports are made and submitted

properly.

The Superintendent shall prepare and submit to the Board for adoption: all reports required of the city board by the

State Board or the State Superintendent; and the annual report to the people of the city required by § 5-111(b) of the

Education Article.

The Superintendent shall prepare lists of materials of instruction needed by the schools including school furniture,

equipment, and apparatus. A contract made by the Board is not valid without the written approval of the

Superintendent.

The Superintendent shall take the initiative in the preparation and presentation of the annual school budget; and seek in

every way to secure adequate funds from local authorities for the support and development of the public schools in the

city. The Superintendent shall approve condemnation of any school building that is unsanitary and unfit for use; and

any repairs of or the purchase and sale of land, school sites, or buildings. The Superintendent shall prepare all plans

and specifications for remodeling an old building or constructing a new building.

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§ 7-422 Acknowledgment and Agreement

Pursuant to section § 7-422 of the Education Article of the Annotated Code of Maryland, the Superintendent shall see

that Each public school that receives notice of a contaminated drinking water supply from the school's supplier of

water, in accordance with § 9-410 of the Environment Article of the Annotated Code of Maryland or otherwise, shall

send notice of the drinking water contamination to the parent or legal guardian of each student attending the school.

The notice shall:

(1) Be sent by the school within 10 business days after receipt of the notice of contamination from the school's water

supplier;

(2) Be in writing;

(3) Identify the contaminants and their levels in the school's water supply; and

(4) Describe the school's plan for dealing with the water contamination problem until the school's water is determined

by the appropriate authority to be safe for consumption.

C. Standards of Conduct.

The Superintendent is expected to act professionally and consistent with the core values, tenets, mission andvision of

CSPS. The Superintendent shall refrain from acts, conduct, or omissions within or without the scope of employment

that brings discredit to CSPS, or may be damaging or injurious to the people or reputation of CSPS.

3. COMPENSATION.

A. Salary- The Superintendent shall receive an annual salary of Two Hundred Seventy-Five Thousand Dollars

($275,000). The annual salary of the Superintendent shall be paid in accordance with the schedule of salary payments

in effect for all other twelve (12) month administrative employees of CSPS. The annual salary shall be subject to

required withholding for income taxes, Social Security contributions, and other required withholdings of contributions

and taxes. Absent mutual consent of the parties, the Superintendent’s salary shall not be decreased during the term of

this Contract in accordance with Education Article §4-202(b).

B. Annual Salary and Total Compensation and Benefits Review- The Superintendent’s salary shall be reviewed on

an annual basis, at the time of the Superintendent’s evaluation by the Board. It is presumed that the Board will consider

an annual increase in the salary paid to the Superintendent during the term of the Contract, taking in account factors

such as the Superintendent’s performance evaluation, fiscal realities, and increases (or lack thereof) given to CSPS

employees in general; and it is understood that those factors may, in certain years, preclude an increase.

4. EVALUATION AND INFORMAL DISCUSSIONS.

A. The Board shall evaluate and assess, in writing, the performance of the Superintendent at least once per year,

generally not later than November 1 of each year, during the term of this Contract.

B. It is anticipated that the evaluation of the Superintendent will include but not be limited to: assessment of progress

in student achievement goals, performance of duties required by law, working relationships with the Board, other

government agencies, and stakeholders (including parents, community and staff), and standards of professional

conduct.

5. TERMINATION OF CONTRACT.

A. In addition to automatic termination at the end of its term, this Employment Contract may be terminated by:

1) Material breach of the terms and conditions of this Employment Contract by either party;

2) Mutual agreement of the parties;

3) Retirement or resignation by the Superintendent;

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41

EXHIBIT F

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44

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Law & Substantive Matters

I. MISCONDUCT IN OFFICE

A. Case Law Chester v. State 32 Md.App. 593, 363 A.2d 605 (1976)

(Discussing Misconduct in Office in Maryland common law) Excerpt from Leopold v. State 216 Md. App.

568 88 A.3d 860 (2013) (Discussing the term “corruptly”)

B. Jury Instructions MPJI-Cr 4:23

A. Case Law

32 Md.App. 593 Court of Special Appeals of Maryland.

Paul L. CHESTER v.

STATE of Maryland.

No. 1117. |

Sept. 15, 1976. |

Certiorari Denied Nov. 30, 1976.

By a judgment of the Criminal Court of Baltimore,

George B. Rasin, Jr., J., the defendant was convicted of

the crime of misconduct in office and he appealed. The

Court of Special Appeals, Menchine, J., held, inter alia,

that appointment of assistant counsel for State was proper,

that defendant failed to show the necessary particularized

need for disclosure of grand jury minutes, and that

defendant’s conduct in soliciting his deputy clerks for

political contributions for his reelection campaign coupled

with threat of dismissal if they did not so contribute did

constitute the common-law offense of misconduct in

office without need of showing the implementation of

such threat.

Affirmed.

Attorneys and Law Firms **606 *594 George L. Russell, Jr., Baltimore, for

appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom

were Francis B. Burch, Atty. Gen., William A. Swisher,

State’s Atty., for Baltimore City, and John Henry **607

Lewin, Jr., Asst. State’s Atty., for Baltimore City on the

brief, for appellee.

Argued before POWERS, MENCHINE and RICHARD

M. POLLITT*, JJ.*

Opinion

MENCHINE, Judge.

Paul L. Chester (appellant), an elected Clerk of the Court

of Common Pleas, went to trial before a jury in the

Criminal Court of Baltimore under indictment 17401949

(Rasin, J., specially assigned, presiding). Initiated as a

three count indictment, the State entered a nolle prosequi

as to the second count prior to commencement of trial. At

the conclusion of the State’s evidence a Motion for

Judgment of Acquittal as to the third count was granted.

The jury convicted under the first count and the appellant

was sentenced to fine and imprisonment.

*595 On appeal, appellant makes the following

contentions:

‘I. The Special Prosecutor Was Appointed Illegally.

II. Denial Of Access To Grand Jury Minutes Was

Unwarranted.

III. The Evidence Was Insufficient To Support A Charge

of Malfeasance In Office.

IV. Submission Of Count One To The Jury After

Dismissal Of Counts Two And Three Was Error.’

I. The Prosecutor

On November 27, 1974, the State’s Attorney of Baltimore

City filed a petition requesting the court to appoint ‘an

Assistant State’s Attorney’ pursuant to the Annotated

Code of Maryland, Courts and Judicial Proceedings

Article, s 2-102. On the same date twelve judges then

assigned to and serving in the twelve parts of the Criminal

Court of Baltimore, by joint order appointed John Henry

Lewin, Jr., Esquire, as ‘Assistant Counsel for the State for

the purpose of prosecuting the (Chester) case with full

powers authorized under the laws of Maryland.’ Under

the signature of each of the said judges there was typed

46

‘JUDGE CRIMINAL COURT OF BALTIMORE.’

Appellant contends that Mr. Lewin’s appointment and

subsequent service as assistant counsel for the State

constituted reversible error. He maintains: (a) that

appointment to such an office must be made by the

Supreme Bench of Baltimore City-not by the Criminal

Court of Baltimore; (b) that the failure to accord him

notice and hearing prior to the appointment denied him

due process under the Maryland and United States

Constitutions; (c) that an order passed by the Chief Judge

of the Court of Appeals on November 22, 1974

designating1 the Honorable George B. Rasin, Jr. (who was

not a signatory to the *596 appointment order) to preside

as the trial judge in the case, operated to deprive the other

judges of the Criminal Court of the power to appoint

assistant counsel in that case; and (d) that Mr. Lewin was

qualified to act as assistant counsel for the State only

during the regime of the Honorable Milton B. Allen as

State’s Attorney, his authority terminating as a matter of

law with the qualification of the successor State’s

Attorney.

(a) The appointment [1]

The case of State v. Ensor and Compton, 277 Md. 529,

356 A.2d 259, is dispositive of this contention. The judges

of the Criminal Court of Baltimore possessed the power

to appoint assistant counsel for the State.

**608 (b) Due Process [2]

One accused of crime has no constitutional right to

notice or hearing upon the question of who shall

prosecute the case against him, when the assigned

prosecutor regularly was appointed pursuant to a valid

general law.

(c) The designation of Judge Rasin [3]

The designation of Judge Rasin in pertinent part

authorized him ‘. . . to sit, either alone or with one or

more other Judges, as a Judge of the Supreme Bench of

Baltimore City assigned to the Criminal Court of

Baltimore in the case of State of Maryland v. Paul L.

Chester . . ..’

The order of designation neither diminished the powers of

the other judges assigned to the Criminal Court of

Baltimore nor limited essential judicial action in the case

exclusively to Judge Rasin.

(d) Duration of the appointment [4]

The appointment of Mr. Lewin was stated to be ‘for the

purpose of prosecuting the (Chester) case with full powers

authorized under the laws of Maryland.’ The statute

authorizing passage of that order plainly intended the

powers of such an appointee to extend through the

completion of the assigned duty. The fact that a change in

*597 the office of the State’s Attorney occurred

subsequent to the passage of the court order in no way

attenuated its legal effect.

II. Grand Jury Minutes

On June 11, 1975, approximately four weeks prior to the

commencement of trial, counsel for appellant filed a

Motion for Disclosure of Grand Jury Minutes. The

motion, after asserting that such Minutes were ‘needed for

the purposes of impeaching and/or testing the credibility

of key prosecution witnesses,’ alleged: (a) that ‘all the

testimony bearing on the alleged unlawful acts will be

concerning numerous private meetings and conversations

over many months’; (b) ‘That from the posture of the case

it is rather obvious that such key prosecution witnesses

have already committed perjury’; and (c) ‘That a

‘particularized need’ for disclosure has been shown, as

more fully set forth in the accompanying Memorandum of

Law.’2

In Silbert v. State, 12 Md.App. 516, 280 A.2d 55 (1971),

cert. den. 263 Md. 720, Chief Judge Murphy (now Chief

Judge of the Court of Appeals of Maryland) for this Court

collected and discussed the cases dealing with the

circumstances under which grand jury transcripts will be

required to be disclosed to an accused. After pointing out

that a ‘particularized need’ must be demonstrated before

access to grand jury minutes may be had, Judge Murphy

declared that the issues ‘is one of fact to be decided in

each case; there is and can be no general test.’ Id. at 523,

280 A.2d at 60.

We shall examine the record to determine whether a

‘particularized need’ has been shown. It appears from the

record that the State, pursuant to an order of the trial

judge, filed in the proceedings a bill of particulars of the

first count of the indictment reading in pertinent part as

follows:

‘1. The names of those persons whom the State contends

were the subjects of Defendant’s attempt *598 to coerce

and intimidate are: Roland Keller, Peggy J. Washington,

Patricia Bertorelli, John Wankmiller, Francis Sherry,

Randall Carroll, Arthur Sindler, Nicholas Possidente,

Lolita Fales, Genevieve Salfner, John Henry Winkler and

Krystal Marie Garner Halloway.

**609 2. The circumstances under which the State

contends that Defendant engaged in the conduct and acts

charged are a meeting held at approximately 4 p. m. on

January 11, 1974 in his office on the first floor of the

Courthouse at which time Defendant made some of the

statements which are described generally in the State’s

Answer to Item 2 of Defendant’s Motion for Discovery.’

Moreover, the record shows that upon application of the

appellant, the trial judge, inter alia, required the State (a)

to furnish the names and addresses of the witnesses

against him whom the State intended to call to prove its

case in chief;3 (b) to furnish the defendant with the

substance of the alleged oral statements attributed to the

defendant;4 and (c) to furnish the defendant with all

evidence whether verbal or written which is exculpatory

in nature.5

47

It is manifest that al of the witnesses disclosed in the

State’s bill of particulars and in the State’s answer to the

discovery motion were available for interviews by the

appellant prior to trial. There is no substantial departure

by the witnesses from the particularization of the events

as recited in the State’s bill of particulars, or answer to

Motion for Discovery. The witnesses at trial were

sequestered. Extensive cross-examination produced

neither substantial *599 conflict in the testimony of any

witness individually nor substantial disagreement in the

totality of the testimony of all witnesses inter sese. No

witnesses were called in behalf of the appellant. In sum,

the evidence of what was said and done by the appellant

is without contradiction. [5]

[6]

Claim to a ‘particularized need’ requires delineation

of the facts tending to support the contention. Something

more must be shown than mere surmise or speculation

that the testimony of a witness at trial may be inconsistent

with his testimony before the grand jury. In the subject

case no factual base supporting the claim has been shown.

In such circumstances, what we said in Grimm v. State, 6

Md.App. 321, 331-32, 251 A.2d 230, 236-37 (1969), cert.

den. 255 Md. 741 (1969), U.S. cert. den. 397 U.S. 1001,

90 S.Ct. 1150, 25 L.Ed.2d 412 (1970), is particularly

applicable here:

‘Finally, appellant contends that the trial court erred in

denying his motion for the production of the Grand Jury

testimony of Sergeant Louis Roemer. The contention

appears based on the proposition that Roemer’s testimony

at trial revealed that he was the only witness who testified

before the Grand Jury and that his testimony was

insufficient to justify the indictment. Appellant claims

that he was therefore seriously prejudiced by his inability

to impeach Roemer at the trial through use of his

testimony before the Grand Jury.

‘It is the well settled rule that the competency of

testimony before the Grand Jury will not be inquired into

by the courts and the alleged insufficiency of such

evidence is no ground to dismiss an indictment. Costello

v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.

397; Pick v. State, 143 Md. 192, 121 A. 918; Wilson v.

State, 4 Md.App. 192, 242 A.2d 194. Equally well settled

is the **610 proposition that there is no absolute right to

inspect the testimony of a witness before a Grand Jury.

Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16

L.Ed.2d 973; *600 Pittsburgh Plate Glass Company v.

United States, 360 U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d

1323. At the very most, Dennis makes clear that it is only

upon a showing of a ‘particularized need’ that an accused

might be entitled in a proper case to such disclosure. See

Wilson v. State, supra (Footnote 10), and Chesley v.

State, 3 Md.App. 588, 240 A.2d 342 (Footnote 7). We

think the trial judge was entirely correct when, in denying

appellant’s motion, he said:

‘* * * there is no showing in this case of any

particularized need nor anything about this case that

would bring it within the exception. If this defendant is

entitled to a transcript of the Grand Jury proceedings then

I cannot think of any criminal cases, be it felony or

misdemeanor, where a defendant could not obtain the

Grand Jury testimony, and that is not the law of

Maryland.“

See also: Sutton v. State, 25 Md.App. 309, 334 A.2d 126

(1975).

We perceive no error.

III. Sufficiency of the Evidence

There was evidence from which the jury could find:

That Paul Chester, elected Clerk of the Court of Common

Pleas, in January 1974 called a meeting of the clerical

staff of his office in room 140 of the Court House in

Baltimore City. After preliminary comments about office

policy respecting absenteeism and tardiness, he advised

the group that he was running for re-election; that he

intended to win the election and that he expected his

employees to purchase $150 worth of tickets for a

political fund raising affair. He indicated disappointment

with his employees’ response to an earlier fund raising

attempt and declared that he would not be undermined

from within. He terminated the meeting with a statement

to the effect that he would be in office after the next

election and that if the clerks did not cooperate they

would not be, and declared that an earlier *601

memorandum that he circulated to the employees

indicating that nothing would happen to the clerical staff

by reason of the forthcoming election ‘was strictly for the

press, television and radio.’

Appellant contends that an essential element of the

offense charged is a showing that the misconduct of a

public officer related solely to the conduct of official

matters or interfered with the administration of his public

duties and responsibilities. From this premise he argues

that where ‘no direct interference with public duties has

been proven, even if the conduct in question constitutes

criminal behavior, the public official, albeit responsible

for his acts, has not, however, committed the crime of

malfeasance.’

His principal reliance for that position stems from the

decision of the Superior Court of Pennsylvania in the case

of Commonwealth v. Blatstein, 231 Pa.Super. 306, 332

A.2d 510 (1974), wherein the Court said 332 A.2d at 515:

‘In order to show misconduct in office, it is not sufficient

to show that Blatstein solicited or even accepted a bribe.

The Commonwealth must demonstrate that Blatstein

followed the course of conduct which the bribe sought to

secure. As Professor Perkins has said:

‘The corrupt receipt of a bribe by an officer, for example,

is criminal misconduct of one while in office, but such a

48

recipient is clearly not acting in the exercise of the duties

of his office, nor is this wrongful act under color of his

office, and bribery has always been recognized as a

separate offense. In fact, in an officer corruptly receives a

**611 bribe and then corruptly does what he has been

bribed to do, he is guilty of both bribery and misconduct

in office.’ (Emphasis added.) R. Perkins, Criminal Law

482 (1969).

Since proof of solicitation of a bribe does not necessarily

entail proof of misconduct in office, the Commonwealth

had to show that Blatstein acted upon his offer to Sherry

in advising the committee. *602 In failing to do so, which

the Commonwealth virtually admitted at trial, it failed to

prove that Blatstein was guilty of misconduct in office.

The Commonwealth having failed in its proof of this

necessary, additional element, the lower court erred when

it dismissed appellant’s motion in arrest of judgment on

the indictment charging malfeasance, misfeasance and

nonfeasance in office.’

A quite different view of the offense was taken in Wallace

v. State, 8 (58 Del.) Storey 521, 211 A.2d 845 (1965),

wherein the Court said 211 A.2d at 850-51:

‘The crime of malfeasance in office is

intended to deter public officers

acting in their official capacities from

committing corrupt and unlawful acts

in disregard of the high standard of

integrity to which such officers are

held by virtue of the fiduciary nature

of their duties. To hold, as the

defendant contends, that there was no

evidence of malfeasance in this case

simply because there was no evidence

of wrongful performance of a

required official act, i. e., the casting

of a vote, would be to take an unduly

narrow view of malfeasance in office.

Sufficient evidence to support a

charge of malfeasance is presented

when it is shown that the defendant

has committed an unlawful act and

such act may affect or is connected

with his official duties. State ex rel.

Martin v. Burnquist, 141 Minn. 308,

170 N.W. 201, 609 (1918); State ex

rel. v. Ward, 163 Tenn. 265, 43

S.W.2d 217 (1931).’

The late Judge Ogle Marbury, speaking for the Court of

Appeals of Maryland, in State v. Carter, 200 Md. 255, 89

A.2d 586 (1952), discussed in considerable depth the

common law offense of misconduct in office, in the

course of which he said 200 Md. at 262, 89 A.2d at 589,

et seq.:

‘The indictment in this case is captioned: ‘Malfeasance in

Office’, but, as the Court of Appeals of Georgia has well

said in a similar situation: ‘* * * it is well established by

numerous decisions *603 of the Supreme Court and this

court that the name of a crime given in an indictment does

not determine the offense alleged to have been committed

by the accused, but the offense is determined by the facts

stated in the indictment.’ Cargile v. State, 67 Ga.App.

610, 21 S.E.2d 326, 327. Nearly one hundred years ago

(1855), the Supreme Judicial Court of Massachusetts

announced the following definitions, with its authority

therefor: ‘Nonfeasance is the omission of an act which a

person ought to do; misfeasance is the improper doing of

an act which a person might lawfully do; and malfeasance

is the doing of an act which a person ought not to do at

all. 2 Inst.Cler. 107. 2 Dane Ab. 482. 1 Chit.Pl. (6th

Amer. ed.) 151. 1 Chit.Gen.Pract. 9.’ Bell v. Josselyn, 69

Mass. 309, 311, 3 Gray 309, 311. These are the

definitions which, with some enlargement, seem to run

through all of the text books and cases. See Words and

Phrases, Permanent Edition, Vol. 26, p. 139, et seq., Title,

Malfeasance, and Vol. 28, p. 722, et seq., Title,

Nonfeasance, and the numerous cases cited which make

the same distinction.

In Webster’s International Dictionary, 2nd Edition,

malfeasance is defined as: ‘The doing of an act which a

person ought not to do; evil conduct; an illegal

deed;-often used of official misconduct or an instance of

it.’ Misfeasance is defined as: ‘The doing wrongfully and

injuriously of an act which a person might do in a lawful

manner; the doing of a lawful act in an unlawful manner,

or the wrongful and **612 injurious exercise of lawful

authority.’ The State contends that malfeasance carries

with it the connotations of wilfulness, evil intent or

motive, and corruption, and cites a number of cases to

support this view, but all of these cases contain in one

form or another the definitions above mentioned. Carlisle

v. Burke, 82 Misc. 282, 144 N.Y.S. 163, 164. State, ex

rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046. *604

Lucas v. Central Missouri Trust Co., 350 Mo. 593, 166

S.W.2d 1053, 1056. State v. Bolitho, 103 N.J.L. 246, 136

A. 164, 172. State, ex rel. Hardie v. Coleman, 115 Fla.

119, 155 So. 129, 92 A.L.R. 988. It is undoubtedly true

that the doing by a public official of an act which he

ought not to do carries with it some measure of wilfulness

and bad intent, and may be induced by corrupt motive, but

these are only necessary or probable accompaniments.

They may also accompany the doing of a lawful act

unlawfully, which is misfeasance. The test seems to be in

the nature of the act, and not in the motive by which it is

done.

‘The cases in this court do not always call misconduct in

office by either one of the two terms, malfeasance or

misfeasance, but when they do use the words, they seem

to recognize the distinction. In Consolidated Gas Co. v.

Commor, 114 Md. 140, 78 A. 725, 32 L.R.A., N.S., 809, a

civil case, nonfeasance and misfeasance are given the

usual definitions above mentioned. Hiss v. State, 24 Md.

556, was an indictment against a justice of the peace. A

defendant had been brought before this officer, accused of

49

setaling bank notes. He was searched and certain bank

notes were taken from him and delivered to the justice.

The justice, however, refused to turn them over to the

person entitled to them, and the indictment said that this

was done ‘unlawfully, wilfully, oppressively, corruptly,

and in violation and contempt of his duty.’ The court

there held that all the elements of crime were enumerated

in the indictment and upheld it, but it did not describe the

crime charged by any particular name. It said: ‘It is

immaterial whether the law imposed upon him the duty to

receive the property, (of which we express no opinion,) it

was received by him, under color of his office, if not

‘virtute officio’, and there can be no doubt of his legal

obligation to restore it to the person entitled.’ (24 Md.

562.) The court expressly *605 declined to decide, as

immaterial, whether the defendant was doing something

he had a right to do, unlawfully, or whether he was doing

something which he had no right to do at all.’

Although Blatstein, supra, cited a portion of its text to

support the decision, Perkins Crim.Law 2d Ed.-UTB, at

482-83, in dissertation upon the common law offense

makes clear that its impact is wide ranging and

comprehensive:

‘D. MISCONDUCT IN OFFICE (OFFICIAL

MISCONDUCT)

The prevention of outside influences, tending toward

corruption is not the only social interest in the official

action of public officers. It is socially desirable, so far as

reasonably possible, to insure that no public officer shall,

in the exercise of the duties of his office or while acting

under color of his office, (1) do any act which is wrongful

in itself-malfeasance, (2) do any otherwise lawful act in a

wrongful manner-misfeasance, or (3) omit to do any act

which is required of him by the duties of his

office-nonfeasance. And any corrupt violation by an

officer in any of these three ways is a common-law

misdemeanor known by some such name as ‘misconduct

in office’ or ‘official misconduct.’

1. UNDER COLOR OF OFFICE

The mere coincidence that crime has been committed by

one who happens to **613 be a public officer is not

sufficient to establish official misconduct. For this offense

it is necessary not only that the offender by an officer, or

one who presumes to act as an officer, but the

misconduct, *606 if not actually in the exercise of the

duties of his office, must be done under color of his

office. On the other hand the act of one who is an officer,

which act is done because he is an officer or because of

the opportunity afforded by that fact, is under color of his

office despite his gesture of removing his badge plus his

statement that he is not acting in the name of the law.’

(Emphasis added; Footnotes omitted.)

Hochheimer, Crimes and Criminal Procedure 2d Ed., also

emphasizes the breadth of the offense, saying at s 383:

MALFEASANCE AND MISCONDUCT IN OFFICE

s 383. General Doctrines.-Any act or omission in breach

of official duty and any act of oppression under color of

official authority by any public officer is, as a general

rule, punishable as a misdemeanor. ‘Public officer’ means

anyone holding employment or appointment under the

government. A de facto officer is a public officer within

the meaning of this section. An officer is not, however,

punishable for the acts of his deputies or subordinates in

which he does not participate.

The following acts and omissions of public officers are

misdemeanors: neglect or non-performance of any

positive duty imposed by law; oppressive and wilful

abuse of authority (to be distinguished from mere error of

judgment); extortion; fraud or breach of trust affecting the

public, such as rendering, passing or procuring false

accounts, or wilfully neglecting to account for money

received, or corruptly retaining money found upon a

prisoner; grossly indecorous conduct, such as sitting as a

justice while drunk, or getting drunk during time of

service as a grand juror.’ (Emphasis added; Footnotes

omitted.)

*607 Elrod v. Burns, — U.S. —, 96 S.Ct. 2673, 49

L.Ed.2d — (1976), although not precisely apposite serves

to illustrate the basic impropriety of the course of action

followed by the appellant. In Elrod, the Supreme Court of

the United States held that threats to discharge non-merit

system employees of a county sheriff for the sole reason

that they were not affiliated with or sponsored by the

party of the newly elected sheriff, was impermissible

action. Indeed, the plurality opinion by Mr. Justice

Brennan (Justices White and Marshall concurring) urged

that constitutional limitations forbade resort to such a

course, saying at —, 96 S.Ct. at 2681:

‘Since the average public employee is hardly in the

financial position to support his party and another, or to

lend his time to two parties, the individual’s ability to act

according to his beliefs and to associate with others of his

political persuasion is constrained, and support for his

party is diminished.

‘It is not only belief and association which are restricted

where political patronage is the practice. The free

functioning of the electoral process also suffers.

Conditioning public employment on partisan support

prevents support of competing political interests. Existing

employees are deterred from such support, as well as the

multitude seeking jobs. As government employment, state

or federal, becomes more pervasive, the greater the

dependence on it becomes, and therefore the greater

becomes the power to strave political opposition by

commanding partisan support, financial and otherwise.

Patronage thus tips the electoral process in favor of the

incumbent party, and where the practice’s scope is

substantial relative to the size of the electorate, the impact

on the process can be significant.’

50

**614 The plurality opinion went on to say at _ _, 96

S.Ct. at 2683:

‘Patronage practice falls squarely

within the *608 prohibitions of

Keyishian6 and Perry.7 Under that

practice, public employees hold their

jobs on the condition that they

provide, in some acceptable manner,

support for the favored political party.

The threat of dismissal for failure to

provide that support unquestionably

inhibits protected belief and

association, and dismissal for failure

to provide support only penalizes its

exercise. The belief and association

which Government may not ordain

directly are achieved by indirection.

And regardless of how evenhandedly

these restraints may operate in the

long run, after political office has

changed hands several times,

protected interests are still infringed

and thus the violation remains.’

The concurring Justices (Stewart and Blackmun) although

declining to adopt the constitutional limitation, said at _ _,

96 S.Ct. at 2690:

‘The single substantive question

involved in this case is whether a

nonpolicy making, nonconfidential

government employee can be

discharged from a job that he is

satisfactorily performing upon the

sole ground of his political beliefs. I

agree with the Court that he cannot.’

[7]

Although Clerks of Court have a considerable

constitutional autonomy, Maryland Constitution Article

IV, ss 25 and 37, the employment of deputy clerks is not a

matter directed to a Clerk’s discretion. In State, use of

Smith v. Turner, 101 Md. 584, 61 A. 334 (1905), it was

said at 590-91, 61 A. at 337:

‘There is no discretion as to the employment of deputy

clerks. Under the 26th section of Art. 4 of the

Constitution, the duty to appoint is imperative. There is

no absolute discretion as to whom the clerk shall appoint.

He can appoint no one without the approval of the Judge

of his Court, nor can he *609 retain him if found by the

Judge to be incompetent or negligent, and the only reason

for these provisions is that the proper performance of the

duties of the office, so many of which can only be

performed with due promptness by the aid of deputies,

may be guaranteed to the public. He cannot appoint a

greater number of deputies than the court deems

necessary for the discharge of the deputies of the office,

and he cannot refuse to appoint such number as the court

may require. He cannot himself fix and limit the salaries

to be paid to his deputies, but must allow such as the

Comptroller of the State shall determine to be just and

proper. The manifest purpose of this provision is to

prevent the wrongful absorption of the receipts of the

office by excessive salaries on the one hand, and to secure

the services of competent persons by the assurance on the

other hand of just and reasonable compensation. In no

clerk’s office in the State would it be possible for the

clerk unaided to perform all the clerical work when and as

it should be done for the protection of the public, and it

was this consideration which caused the framers of the

Constitution to embody in that instrument the duty of

appointing deputies, and the power of confirmation and

supervision conferred upon the court. Deputies are not

mere servants or agents of the clerk; they are agents and

officers of the court, being appointed, in the language of

the Constitution, ‘to perform together with (the clerks)

themselves the duties of the said office.‘‘

See also: Maryland Constitution Article IV, s 26.

The Clerk of Court occupies a particularly sensitive

position of public trust. The proper administration of his

office entails **615 the closest relationship and

cooperation of his staff with the courts themselves. Public

confidence in the even and equal administration of justice

will be eroded unless the highest standards of official

conduct are *610 recognized and heeded by judges and

the agents and officers of the court alike. [8]

We are persuaded that the described actions of the

appellant making demand for political contributions and

coupling that demand with the threat of discharge from

office unless that demand is met, fall within the

boundaries of the common law offense of misconduct in

office. We have no doubt that the conduct ascribed to the

appellant by the witnesses is calculated to affect the

efficient operation of the clerk’s office and to destroy the

indispensable insulation of the courts from political

activity. The threat itself is the gravamen of the offense,

its implementation not an essential. The evidence was

legally sufficient to convict.

IV. Submission of Count One to the Jury

Appellant contends that actions taken in the trial court

upon counts two and three of the indictment compel

reversal of the conviction under count one. Resolution of

the question requires recitation of the material language of

the several counts.

Count one, after reciting that appellant was elected,

qualified and acting as Clerk of the Court of Common

Pleas, alleged that appellant ‘while acting under color of

the said office, unlawfully, wilfully, corrputly, knowingly,

contemptuously and improperty . . . did unlawfully

obligate certain employees in the said office of the Clerk

of the Court of Common Pleas (a) to contribute money to

his political campaign for re-election to said office and

render political services to him in connection with his said

campaign for re-election to said office. . . . and (b) did

51

unlawfully engage in acts and conduct for the sole

purpose of coercing and intimidating certain employees in

the said office of the Clerk of the Court of Common Pleas

to contribute and donate goods, materials, services and

monies to his campaign for re-election to the Clerkship of

the said Court of Common Pleas, . . .’ The count went on

to state that the two allegations were in violation of Code

Article 33, s 28-1 and Code Article 27, s 562A,

respectively.

*611 Count two charged that the accused had violated

Article 33, s 28-1 subsection c.8

Count three charged that the accused had violated Article

27, s 562A.9

**616 [9]

The pre-trial nolle prosequi as to the second

count was declared by the State to have been entered

because the subsection ‘fails to state a criminal offense

under Maryland law.’ Such an entry as to one count of an

indictment does not bar prosecution under another.

Williams v. State, 7 Md.App. 241, 245, 254 A.2d 376,

378 (1969), cert. den. 256 Md. 749 (1970).

[10]

The trial court granted the motion for acquittal as to

the third count upon the ground that ‘this Court cannot

find that this evidence supports the facts that there was a

political association or organization involved in the

election of the Defendant, and the Court does not believe

that this *612 language is sufficiently descriptive to

include an individual who is soliciting contributions from

others for election.’ Otherwise stated, the trial judge

granted the motion for acquittal as to the third count

because he believed that there had been a failure of proof

as to one of the necessary elements of the statutory

offense. That decision having been favorable to the

accused, its correctness is not before us. Accordingly, we

shall assume, without deciding, that an essential element

of the statutory offense was lacking. Nonetheless, the

grant of the motion for acquittal as to the third count did

not affect the validity of the conviction as to the first

count. The missing element of the statutory offense was

not a necessary element of the common law offense.

There is not the slightest indication that the legislature, by

the passage of Article 33, s 28-1, subsection c or Article

27, s 562A, intended to eliminate or to amend the

common law offense of misconduct in office. The

allegations of fact contained in the first count of the

indictment are sufficient to constitute a charge of common

law misconduct in office.

Under quite similar circumstances, it was said in Lutz v.

State, 167 Md. 12, 17, 172 A. 354, 357 (1934):

‘It follows that, as the first count of each indictment

describes an offense cognizable at common law, and since

that law as to that offense has not been repealed, and since

each count concludes ‘against the peace, government and

dignity of the state,’ the demurrers to them were properly

overruled. The additional allegation in the Lutz case that

the offense charged was against the form of the statute

may be disregarded as surplusage.’

In the subject case also, the allegation that the offense

charged was in violation of Article 33, s 28-1, subsection

c and of Article 27, s 562A properly may be disregarded

as surplusage. The first count sufficiently charged a

common law offense. The proof was legally sufficient to

support the charge.

JUDGMENT AFFIRMED. COSTS TO BE PAID BY

APPELLANT.

All Citations 32 Md.App. 593, 363 A.2d 605

52

Footnotes

*

Associate Judge, First Judicial Circuit, (Specially Assigned).

1

Authorized by Maryland Constitution Article IV, s 18A; Maryland Rule 1202 a. 1.

2

The memorandum of law contained no further recitation of facts to support a ‘particularized need.’

3

The State’s answer listed the names and addresses of 17 persons, of whom eight ultimately were called as witnesses for the State.

4

The statement detailing the alleged comments of the appellant at the office meeting on January 11, 1974 was substantially as recited infra in the summary of the testimony of the witnesses under Part III hereof.

5

The State’s answer listed the names and addresses of five employees of the clerk’s office who had claimed ‘either (a) that Defendant did not make the oral statements generally described in answer to Item 2 herein, (b) that they do not recollect or recall Defendant having made said

statements, or (c) that if said statements were made, it was not heard because (1) the listener was not paying attention, (2) the listener’s mind

‘phased off’ or (3) said oral statement did not concern the listener.’

6

Keyishian v. Board, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).

7

Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

8

Article 33, s 28-1. reads as follows: ‘Participation in politics or political campaigns and the free expression of political opinions by employees of this State or of any county,

municipal corporation, city, political subdivision, public authority, body political or board of education shall not be prohibited, and each

employee shall retain all rights and obligations of citizenship provided in the Constitution and laws of the State of Maryland, and in the Constitution and laws of the United States of America; however, no such employee shall:

(a) Engage in political activity while on the job during working hours;

(b) Advocate the overthrow of the government by unconstitutional and violent means; or (c) Be obligated to contribute or render political service.’

9

Article 27, s 562A. reads as follows: ‘(a) Prohibited acts.-It is unlawful for any person, group or organization to engage in any act or conduct for the sole purpose of coercing or

intimidating another person to contribute or donate any goods, materials, services, or moneys to any social, economic, or political association or

organization. (b) Labor picketing not prohibited.-Nothing herein shall be deemed to prohibit any picketing assembly in connection with a labor dispute as that

term is defined in Article 100, s 74 of the Annotated Code of Maryland (1964 Replacement Volume), title ‘Work, Labor and Employment,’

subtitle ‘Injunction,’ as amended from time to time. (c) Penalties.-Any person found guilty of violating this section shall be punished by a fine of not more than $100 or by imprisonment for not

more than 90 days or both. Each day in which a violation of this section occurs constitutes a separate offense. (1972, ch. 721.)

Only the section from Leopold v. State 216 Md. App. 586, 88 A.3d 860 (2013) included below, may be used for the purpose of this mock trial competition: “The Maryland cases have recognized that the corrupt behavior can be characterized in various ways such as the doing of an act which is wrongful in and of itself, malfeasance, the doing of an act otherwise lawful in a wrongful manner, misfeasance, or the omitting to doing an act which is required by the duties of the office, nonfeasance. Within each of the misconduct counts the State acknowledges that it must show that the Defendant acted corruptly and in violation and perversion of his duties as County Executive. And it also acknowledges that it must show that the Defendant committed each count knowingly, willfully, and intentionally. What corruptly means in this context has not been well defined. Some guidance is supplied by the commentary to the Maryland Pattern Jury Instructions in support of its instruction on misconduct in office.” - Leopold v. State 216 Md. App. 586, 88 A.3d 860 (2013)

B. Jury Instructions MPJI-Cr 4:23 MISCONDUCT IN OFFICE (MALFEASANCE, MISFEASANCE, AND NONFEASANCE)

1

The defendant is charged with the crime of misconduct in office. Misconduct in office is corrupt behavior by a public

1 MICPEL, Maryland Criminal Pattern Jury Instructions, Copyright 2013 by The Maryland State Bar Association, Inc. Available at; http://www.mdmunicipal.org/DocumentCenter/Home/View/262 Copyright © 2013 The Maryland State Bar Association, Inc.

53

official in the exercise of [his] [her] duties of office or while acting under color of office. In order to convict the defendant, the State must prove: (1) that the defendant was a public officer; (2) that the defendant [[acted in [his] [her] official capacity]] [took advantage of [his] [her] public office]]; and

(3) that the defendant [corruptly did an unlawful act] [[corruptly failed to do an act required by the duties of [his] [her]

office]] [corruptly did a lawful act] The specific [act] [failure to act] alleged in this case is ____________________. For this count, the state alleges that the defendant failed to notify _______ that ___________, as is required by _______________. Notes on Use Use this instruction if the defendant is charged with common law misconduct in office. Comment: Misconduct in office, a common law misdemeanor, consists of corrupt behavior by a public officer while in the exercise of official duties or while acting under color of law. Duncan v. State, 282 Md. 385, 387, 384 A.2d 456, 458 (1978); Chester v. State, 32 Md. App. 593, 601-10, 363 A.2d 605, 610-15 (1976). See generally ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 540-50 (3d ed. 1982); RICHARD P. GILBERT & CHARLES E. MOYLAN, JR., MARYLAND CRIMINAL LAW: PRACTICE & PROCEDURE §§ 20 et seq., at 219-23 (1983 & Supp. 1990). Although the commentators have referred to the crime, alternatively, as malfeasance, misfeasance, and nonfeasance, PERKINS & BOYCE, supra, at 544, the Committee omitted these distinctions because they may confuse the jury. A public officer includes anyone employed by or holding appointment under the government. E.g., Resetar v. State Bd. of Educ., 284 Md. 537, 399 A.2d 225 (junior high school teacher), cert. denied, 444 U.S. 838 (1979). “The word ‘corruption,’ as an element of misconduct in office, is used in the sense of depravity, perversion or taint.” PERKINS & BOYCE, supra, at 542. Thus, the conduct must be a willful abuse of authority and not merely an error in judgment. HYMAN GINSBERG & ISIDORE GINSBERG, CRIMINAL LAW & PROCEDURE IN MARYLAND 152 (1940); see State v. Schultz, 71 N.J. 590, 601, 367 A.2d 423, 429 (1976) (“[T]he word ‘corrupt’ does not necessarily . . . mean financial dishonesty [but] rather connotes that the wrongful act ... is done with ‘evil motive or in bad faith and not honestly.” (quoting State v. Begyn, 34 N.J. 35, 50, 167 A.2d 161, 169 (1961))). The Committee did not define or explain “corrupt” or “corruptly,” believing that the words “corrupt” and “corruptly” communicate their meaning better than a definition would. See United States v. Reeves, 752 F.2d 995, 998 (5th Cir. 1985) (defining “corruptly” as an act “‘done with an intent to give some advantage inconsistent with the official duty and rights of others” (emphasis in original) (quoting United States v. Ogle, 613 F.2d 233, 238 (10th Cir. 1979))); United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971) (defining ““corrupt” as with “evil or wicked purpose” and stating that [s]pecific intent to impede the administration of justice is an essential element”). Comment: Criminal Misconduct in Office. There are instances in which public officials and employees have been prosecuted for committing acts that are corrupt. Although many state and federal laws have an impact on the conduct of local officials, the common law crime of misconduct in office is the significant enforcement tool that prosecutors use in dealing with office misconduct. Misconduct in office is generally defined as “corrupt behavior by an officer in the exercise of the duties of his or her office or while acting under color of office.” This definition is also found in case law, and there are no statutory penalties prescribed in Maryland for this offense. Therefore, misconduct in office is, at common law, a misdemeanor. Punishment for the offense is entirely within the discretion of the judge subject to constitutional proscription against cruel and unusual punishments. Applicability. The crime of misconduct in office can only be committed by a public officer or official and the commission or omission of the alleged acts must be in the performance of duties related to the office held by the offender. If a public officer commits a crime unrelated to the duties of his office, such as theft in a private matter, he cannot be charged with misconduct in addition to the theft charge. The fact that a person is employed by the State or local government does not, by itself, establish that person as a public officer. Maryland law has no clear definition of what constitutes a public officer, but five factors have been set forth in case law. They are as follows:

54

1. The position was created by law and the duties are continuing and not occasional.

2. The incumbent performs an important public function.

3. The position has a definite term for which a commission is issued, a bond posted, and an oath

required.

4. The position is one of dignity and importance.

5. The position calls for the exercise of some portion of the sovereign power of the State.

Of these five characteristics, the most important one is whether the position calls for the exercise of some of the government’s sovereign power. Government employees who do not have such authority usually will not be held to fit the legal definition of a public officer. Types of Misconduct. Misconduct in office is a general term which refers to three types of offenses.

Specifically they are:

malfeasance—an act which is wrongful in itself or which should not be done at all.

misfeasance—an act which is otherwise legal but performed in a wrongful manner.

nonfeasance—the omission of an act which is required by the duties of the office.

The difference between malfeasance and misfeasance is clarified in the following example. A public official awards a contract for the corrupt purpose of enriching a friend. If the official has no authority to award the contract, he can be charged with malfeasance. If awarding such contracts is one of his duties, he can be charged with misfeasance. Nonfeasance can be charged when the duty is ministerial and mandated by law. A ministerial duty is one prescribed by law or superior authority and which does not involve discretion or the exercise of judgment. When the act is discretionary, it would be necessary to show that the failure to perform the act was corrupt. However, any intentional forbearance or deliberate refusal by an official to do what is unconditionally required by the obligation of the office is corrupt. An official mandated by law to perform a certain act is not permitted to judge in opposition to that which is required. Elements of Misconduct. In order to demonstrate that the crime of misconduct has been committed, the prosecution must prove that the offender was a public officer at the time of commission or omission of the alleged act. The act or omission must be proven to have been in the exercise of public duties or under color of office. Under “color of office” denotes that the offender was able to do the unlawful act because the person is a public officer or because of the opportunity afforded by that fact. In addition, the prosecution must show that the offender had a corrupt motive except where there was a failure to perform a nondiscretionary duty required by law.

Limitations and Procedures. Maryland law provides that the prosecution of malfeasance, misfeasance, nonfeasance, or a conspiracy to commit such offenses shall be instituted within two years after the offense is committed. If the offense is nonfeasance or if it is continued over time, the statute of limitations would not begin to be calculated until the duty ends or the offender resumes performance of the duty.

Ethics agencies may seek to enforce ethics sanctions for these offenses in addition to sanctions under other Maryland law. It should be noted that ethics agencies will defer to a prosecuting authority at least until the case is completed before adjudicating an ethics violation. Ethics laws do not generally carry a statute of limitations.

II. RECKLESS ENDANGERMENT

A. Statutory Law Md. CRIMINAL LAW Code Ann. § 3-204 (2016)

B. Case Law State v. Kanavy 416 Md. 1, 4 A.3d 991 (2009) (discussing failure to act and the conduct requirement for reckless

endangerment)

55

C. Jury Instructions MPJI-Cr 4:26A

A. Statutory Law § 3-204. Reckless endangerment

(a) Prohibited. -- A person may not recklessly: (1) engage in conduct that creates a substantial risk of death or serious physical injury to another; or

(b) Penalty. -- A person who violates this section is guilty of the misdemeanor of reckless endangerment and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $ 5,000 or both.

(c) *Exceptions- Omitted, not relevant for purposes of this competition*

(d)(1) To be found guilty of reckless endangerment under § 3-204 of this subtitle, a defendant must be charged specifically with reckless endangerment.

(2) A charging document for reckless endangerment under § 3-204 of this subtitle is sufficient if it substantially states:

“(name of defendant) on (date) in (county) committed reckless endangerment in violation of § 3-204 of the Criminal Law Article against the peace, government, and dignity of the State.”.

(3) If more than one individual is endangered by the conduct of the defendant, a separate charge may be brought for each individual endangered.

The crime of reckless endangerment does not require the defendant actually cause harm to another individual. State v Albrecht 336 Md 475 (1994) To commit the crime of reckless endangerment, a defendant need not intentionally cause a result or know his conduct is substantially certain to cause a result; recklessness in causing a result exists when one is aware that his conduct might the result, though it is not substantially certain to happen. Minor v State 85 Md App 305, aff’d 326 Md 436 (1992)

The mens rea of reckless endangerment, far from intending, striving, desiring or purposing to bring about a harmful consequence, or any consequence for that matter, is one’s being blithely unconcerned with the possible consequences; the state of mind of recklessness, in the context of reckless endangerment, as well as in other criminal contexts such as depraved heart murder and possibly grossly negligent manslaughter, is variously described as an attitude wherein the criminal agent, conscious of the life endangering risk involved, none the less acts with a conscious disregard of or wanton indifference to the consequences. Williams v State 100 Md App 468 (1994) § 3-201. Definitions

(d) Serious physical injury. -- "Serious physical injury" means physical injury that:

(1) creates a substantial risk of death; or

(2) causes permanent or protracted serious: (i) disfigurement; (ii) loss of the function of any bodily member or organ; or (iii) impairment of the function of any bodily member or organ.

§ 3-209. Defenses

A person charged with a crime under § 3-202, § 3-203, § 3-204, or § 3-205 of this subtitle may assert any judicially recognized defense.

§ 3-208. Evidence of serious physical injury

56

Expert testimony is admissible to prove, but is not required to prove, serious physical injury.

B. Case Law

416 Md. 1 Court of Appeals of Maryland.

STATE of Maryland v.

Brian Gerard KANAVY, Shadi Sabbagh, Dennis Harding, Mark Richard Sainato, and Jason Willie

Robinson.

No. 129, Sept. Term, 2009. |

Sept. 21, 2010.

Synopsis

Background: Defendants, five employees of a juvenile

facility who were on duty when a juvenile confined in the

facility died, were charged with reckless endangerment.

Defendants filed motions to dismiss the indictments on

the ground that the reckless endangerment statute did not

proscribe the failure to act. The Circuit Court, Carroll

County, Michael M. Galloway, J., granted defendants’

motions to dismiss the indictments. State appealed. The

Court of Special Appeals affirmed. State filed petition for

writ of certiorari.

Holdings: The Court of Appeals, Murphy, J., held that:

[1]

defendants had duty to provide juvenile with

appropriate medical care;

[2]

the conduct proscribed by the reckless endangerment

statute includes the wilful failure to perform a legal duty;

and

[3]

indictment was legally sufficient to charge offense of

reckless endangerment.

Judgment of Court of Special Appeals reversed; case

remanded with directions.

Bell, C.J., dissented and filed opinion.

Attorneys and Law Firms

**992 Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F.

Gansler, Atty. Gen. of Maryland, Baltimore, MD), on

brief, for petitioner.

Jason W. Shoemaker (Shoemaker & Conner, Bethesda,

MD), on the brief, for respondents.

Joshua R. Treem (Nicholas J. Vitek of Schulman, Treem,

Kaminkow & Gilden, P.A., Baltimore, MD), on the brief,

for respondents.

Argued before BELL, C.J., HARRELL, BATTAGLIA,

GREENE, MURPHY, ADKINS, and BARBERA, JJ.

Opinion

MURPHY, J.

*4 In the Circuit Court for Carroll County, a Grand Jury

returned five identical indictments that charged Brian

Gerard Kanavy, Shadi Sabbagh, Dennis Harding, Mark

Richard Sainato, and Jason Willie Robinson

(Respondents) with the offense of reckless endangerment.

Each indictment contained the following assertion:

STATE OF MARYLAND, CARROLL COUNTY,

TO WIT:

The Grand Jurors of the State of Maryland, for the

body of Carroll County, do on their oaths and

affirmations present that [the Respondent] late of said

County, on or about January 23, 2007 at 999 Crouse

Mill Road, Keymar, Carroll County, Maryland, did

recklessly engage in conduct, to wit: did fail to

contact emergency services (9–1–1) in a timely

**993 manner that created a substantial risk of

death and serious physical injury to Isaiah

Simmons, III, while in Defendant’s care and custody

and a duty to do so existed, in violation of the

Criminal Law Article, Section 3–204, A–1, contrary to

the form of the act of the assembly in such case made

and provided and against the peace, government and

dignity of the state.

(Emphasis supplied).

Respondents filed motions to dismiss the indictments on

the ground that the reckless endangerment statute does not

proscribe the failure to act. The Circuit Court entered an

“ORDER” dismissing the indictments “pursuant to Md.

Rule 4–252 for failure to charge the Defendants with a

crime,” and the Court of Special Appeals affirmed that

decision in an unreported opinion. State v. Kanavy, et al.,

Nos. 3008–3012, September Term, 2007, filed August 10,

2009. The State then filed a Petition for Writ of Certiorari,

in which it presented this Court with three questions:

*5 1. Where the indictments contained all the elements

required to charge reckless endangerment, did the

lower courts err in focusing on surplus language

regarding the manner and means by which defendants

committed the crime to find that the indictments failed

57

to charge an offense?

2. Alternatively, if it was appropriate to consider the

manner and means alleged in the indictments in

determining their sufficiency, does the “conduct”

required for reckless endangerment include acts of

omission where there is a duty to act?

3. Did the trial court err in going beyond the four

corners of the indictments to find a basis for dismissal,

contrary to the Court of Appeals decision in State v.

Taylor, 371 Md. 617[, 810 A.2d 964] (2002)?

We granted the petition. 411 Md. 599, 984 A.2d 243

(2009). For the reasons that follow, we shall reverse the

judgment of the Court of Special Appeals and direct that

the cases be remanded to the Circuit Court.

Background

On January 23, 2007, Isaiah Simmons, III, a juvenile who

had been committed to the Department of Juvenile

Services, died at the Bowling Brook Preparatory School

in Carroll County. Respondents are employees of that

juvenile facility who were on duty when the juvenile died.

The record shows that, at the conclusion of a Grand Jury

investigation, the State’s Attorney for Carroll County

requested that the Grand Jury return a three count

indictment against each Respondent. “Count 1” would

have charged each Respondent with manslaughter as a

result of the deadly force he allegedly used against the

deceased; while “Count 2” would have charged each

Respondent with the lesser-included offense of reckless

endangerment as a result of the deadly force he allegedly

used. The Grand Jury, however, elected to charge each

Respondent only with “Count 3,” the indictment quoted

above.

*6 The Circuit Court’s Order was accompanied by a

“MEMORANDUM OPINION” that included the

following findings and conclusions:

The State contends that the statutory definition of

conduct includes an omission, which would violate a

specific duty owned by the Defendants to Isaiah

Simmons.

Maryland appellate courts have considered numerous

cases concerning reckless endangerment.

**994 The general patterns of these cases consistently

show convictions for reckless endangerment stemming

from direct actions taken by the Defendants. This court

is unable to find a single case in which a Defendant

was convicted of reckless endangerment based on the

omission of a duty.

The State argues that the Craig case serves as the basis in

holding that criminal liability can be assessed against a

Defendant for the omission of a duty. In Craig, the

Defendants were convicted of the involuntary

manslaughter of their infant child for failing to obtain

proper medical care for their child because of their

personally held religious beliefs. Craig v. State, 220 Md.

590, 593, 155 A.2d 684, 686 (1959). The State contends

that since the crime of reckless endangerment has been

held to constitute a lesser form of gross involuntary

manslaughter, that omitted actions which serve as a basis

to charge a Defendant with the crime of involuntary

manslaughter must also be applicable to charge the

Defendants with reckless endangerment. This court

disagrees. In Craig, the State was able to prove that under

Article 72A, Section 1 of the old Maryland code, that a

statutory duty existed for a parent to care for a child, and

therefore “inaction” in failing to obtain medical treatment

for a child who eventually dies would leave the parents

liable for manslaughter. Id. at 596–97[, 155 A.2d at

687–688]. Here, this court finds no case in which any

court in Maryland has even construed the definition of

“conduct” *7 under the reckless endangerment statute to

include an omission.

Assuming for purposes of this argument however, that the

Court found that a person may be found guilty of reckless

endangerment for failing to perform a legal duty, the court

would still need to find evidence that such a duty legally

exists. At common law there is no legal duty to assist a

person in distress. See Pope v. State, 284 Md. 309,

324–25, 396 A.2d 1054, 1064 (1979). Statutes have

affirmatively imposed criminal liability for the failure to

act on a duty.... Here, the State would not need to prove

at this stage of the proceedings that the Defendants

failed to perform a legal duty. The State would only

need to show some authority for the proposition that a

duty exists, the violation of which renders the

Defendants guilty of reckless endangerment. But, this

court finds no such evidence that any statutory duty

exists in this case.

In this case, the sole count is based upon an alleged

omission of failing to call emergency services in a timely

manner rather than the actual commission of any act by

the Defendants. Therefore this court finds that the

indictment fails to adequately allege or charge the

Defendants with a crime, and accordingly dismissal of the

indictment is warranted under Md. Rule 4–252.

(Emphasis supplied).

While affirming the decision of the Circuit Court, the

Court of Special Appeals stated:

There is no doubt that the Grand Jury’s indictments would

have been sufficient to allege the commission of a crime

if the Grand Jurors had simply followed the formula set

forth in section 3–206(d). As can be seen, the indictments

set forth each defendant’s name, the date of the act, the

county, and alleged that the defendant “did recklessly

engage in conduct” in violation of section 3–204(a)(1) of

the Criminal Law Article. The problem arises because the

58

*8 **995 indictments went on to describe how the State

contended that the reckless endangerment statute was

violated, i.e., by describing the defendants’ passive

conduct (failure to call 911 in a timely manner where a

duty to make the call existed).

Because the State elected to describe the conduct

alleged to be wrongful, the defendants were presented

with an opportunity to raise the issue of whether the

indictments, as worded, charged them with a crime.

We agree with the State that there are circumstances

(e.g., where the defendant engages in an act of

commission) where reckless endangerment has been

held to be a lesser included offense of negligent

manslaughter. See State v. Albrecht, supra, 336 Md.

[475] at 477–78[, 649 A.2d 336, 337 (1994) ]. (proof

that shotgun was recklessly held by police officer when

it accidently discharged and killed a citizen was

sufficient to prove the crime of reckless endangerment

and negligent manslaughter). But no case cited by the

State stands for the proposition that the statutory crime

of reckless endangerment is a lesser included offense to

manslaughter in situations where the defendants are

accused of passive conduct.

State v. Kanavy, et al., Nos. 3008–3012, September Term,

2007, slip opinion, pp. 2–3, 6–7.

Discussion

I. Respondents’ Duty to the Deceased [1]

[2]

[3]

It is clear that, while the deceased was confined at

the Bowling Brook facility, the United States Constitution

imposed a duty to provide him with medical care. The due

process clause of the Fourteenth Amendment requires the

State to provide medical care to injured persons who are

in the custody of State agents. Revere v. Massachusetts

Gen. Hosp., 463 U.S. 239, 244–45, 103 S.Ct. 2979,

2983–2984, 77 L.Ed.2d 605 (1983); *9 Buffington v.

Baltimore County, 913 F.2d 113, 119 (4th Cir.1990). As

the United States Supreme Court stated in DeShaney v.

Winnebago County Dept. of Social Servs., 489 U.S. 189,

109 S.Ct. 998, 103 L.Ed.2d 249 (1989):

When the state by the affirmative

exercise of its power so restrains an

individual’s liberty that it renders

him unable to care for himself, and

at the same time fails to provide for

his basic human needs—e.g., food,

clothing, shelter, medical care, and

reasonable safety—it transgresses

the substantive limits on state

action set by the Eighth

Amendment and the Due Process

Clause.

Id. at 200, 109 S.Ct. at 1005–06.

[4]

[5]

It is also clear that the laws of Maryland imposed a

duty to provide the deceased with appropriate medical

care. The Courts and Judicial Proceedings Article (CJ)

and the Human Services Article (HS) impose on the

Department of Juvenile Services the duty to provide a

child in the Department’s custody with appropriate

medical care. The purposes of the Juvenile Causes

Subtitle include the purpose of providing children in State

care and custody with a safe, humane, and caring

environment, as well as access to required services. See

CJ § 3–8A–02(a)(7). HS § 9–223 requires that the

Department comply with the provisions of CJ § 3–8A–02.

HS § 9–237 requires that the Department provide children

in its custody with a safe and humane environment. As

employees of the Department, Respondents had a legal

duty to comply with the applicable laws.

II. “Conduct” Includes “Omissions”

[6]

In Williams v. State, 100 Md.App. 468, 641 A.2d 990

(1994), while holding that a reckless endangerment

conviction merged into an assault conviction, the Court of

Special Appeals stated:

A reckless endangerment resulting

in death will constitute either a

grossly negligent involuntary

manslaughter or a depraved-heart

second-degree murder. In either

event, *10 the reckless

endangerment will merge into the

greater inclusive criminal

homicide.

Id. at 485, 641 A.2d at 998. We agree with this statement.

In Criminal Homicide Law, Judge Moylan states:

With gross negligence manslaughter ..., the act of

killing may be by omission as surely as by commission.

See § 1.9 supra. A finding of guilt is subject to the

general limitation that for a homicide by omission to be

criminal, the homicidal agent must have owed a duty to

the homicide victim, such as the duty owed to a patient

by a doctor or nurse; to a child by a parent, guardian,

teacher or baby-sitter; to a person placed in a position

of danger by the person creating such danger. In State

v. Albrecht [, 336 Md. 475, 499, 649 A.2d 336, 347

(1994),] Judge Raker defined the gross negligence

variety of involuntary manslaughter in terms that

included both the modality of commission and that of

omission.

In Maryland, involuntary manslaughter is a common

law felony, generally defined as an unintentional

killing done without malice, in negligently doing

some act lawful in itself or by the negligent omission

59

to perform a legal duty.

(Emphasis supplied [in treatise] ).

Craig v. State [, 220 Md. 590, 155 A.2d 684 (1959) ]

and Palmer v. State [, 223 Md. 341, 164 A.2d 467

(1960) ] were cases in which the defendants were

[convicted of] gross negligence manslaughter for the

acts of omission that led to the deaths of their children.

Judge Charles E. Moylan, Jr., Criminal Homicide Law, §

12.9, pp. 235–236 (2002).

[7]

According to Respondents, reckless endangerment is a

lesser-included offense of gross-negligence manslaughter

only if the reckless conduct is “active” rather than

“passive,” because a reckless endangerment conviction

requires proof beyond a reasonable doubt that the

defendant did engage in conduct that created a substantial

risk of death or serious physical injury to another.1 We

conclude, however, that the *11 conduct proscribed by the

reckless endangerment statute includes the wilful failure

to perform a legal duty. This conclusion is consistent with

the following authorities.

The word “conduct” is defined by Black’s Law

Dictionary as “personal behavior, whether by action or

inaction; the manner in which a person behaves.” Black’s

Law Dictionary 292 (7th ed.1999). The entry continues

with a case quotation which states, “The word ‘conduct’...

covers both acts and omissions.” Id. (alteration in

original, citation omitted). Our reckless endangerment

statute is derived from the Model Penal Code, in which

the term “conduct” is defined as “an action or omission

and its accompanying state of mind, or where relevant, a

series of acts **997 and omissions[.]” Model Penal Code,

§ 1.13(5) (1985). New York’s reckless endangerment

statute provides that “[a] person is guilty of reckless

endangerment in the second degree when he recklessly

engages in conduct which creates a substantial risk of

serious physical injury to another person.” McKinney’s

Penal Law (N.Y.) § 120 (2009). In People v. Sanford, 24

A.D.3d 572, 808 N.Y.S.2d 274 (2005), cert. denied, 6

N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981 (2006),

the Appellate Division of the Supreme Court of New

York reversed the dismissal of a multi-count indictment

that included (first degree and second degree) reckless

endangerment counts based upon “the defendant’s

knowledge of her mother’s age and health, the seriousness

of the fall as shown by her mother’s injuries and

subsequent death, and the defendant’s failure to have

rendered or summoned aid for approximately five hours,

although she was a geriatric nurse[.]” Id. at 275.

According to the appellate court, the State’s evidence “if

unexplained and uncontradicted at trial, would support a

jury verdict that the defendant recklessly or with criminal

negligence caused the death of or injuries to her mother,

or recklessly created a substantial risk or serious injury to

her mother.” Id.

*12 Section 163.195 of the Oregon Revised Statutes, in

pertinent part, provides that “(1) A person commits the

crime of recklessly endangering another person if the

person recklessly engages in conduct which creates a

substantial risk of serious physical injury to another

person.” In State v. Nelson, 224 Or.App. 398, 198 P.3d

439 (2008), while reversing a reckless endangerment

conviction on the ground that the State’s evidence was

insufficient to establish an essential element of the

offense, the Court of Appeals of Oregon stated:

Thus, to obtain a conviction under the reckless

endangerment statute, the state generally has to prove,

first, that the defendant performed an act, or omitted to

perform an act as required by law. ORS 161.085(3),

(4); second, that the act or omission created a

substantial risk of serious physical injury to another

person; third, that the act or omission presented such a

substantial and unjustifiable risk of serious physical

injury that only a person demonstrating a gross

deviation from a reasonable standard of care would so

act or omit to act; fourth, that the defendant was aware

of the risk; and fifth, that the defendant consciously

chose to disregard the risk.

Here, we agree with the state (and defendant concedes)

that allowing a two-and-one-half-year-old child to

wander unattended in a commercial and residential

neighborhood for six hours put the child at substantial

risk of sustaining serious physical injury. We also agree

that doing so is a gross deviation from a reasonable

standard of care. Id. at 442.

[8]

[9]

To convict a Respondent of the reckless

endangerment offense charged in the indictment,2 the

State must prove beyond a reasonable doubt that (1) the

Respondent owed a duty to obtain emergency medical

care for the deceased, (2) *13 the Respondent was aware

of his obligation to perform that duty, (3) the Respondent

knew that his failure to perform that duty would create a

substantial risk of death or serious physical injury to the

deceased, (4) under the circumstances, a reasonable

employee **998 of the Department of Juvenile Services

in Respondent’s position would not have disregarded his

or her duty to (in the words of the indictments) “contact

emergency services (9–1–1) in a timely manner,” and (5)

the Respondent consciously disregarded his duty. The

wording of the indictments at issue is legally sufficient to

charge the offense of reckless endangerment.

JUDGMENT OF THE COURT OF SPECIAL

APPEALS REVERSED; CASE REMANDED TO

THAT COURT WITH DIRECTIONS THAT THE

CASE AGAINST EACH RESPONDENT BE

REMANDED TO THE CIRCUIT COURT FOR

TRIAL; COSTS IN THIS COURT AND IN THE

COURT OF SPECIAL APPEALS TO BE PAID BY

60

RESPONDENTS.

BELL, C.J., dissents.

BELL, C.J., dissenting.

At issue in this case is the sufficiency of the indictments,

filed against the petitioners Brian Gerard Kanavy, Shadi

Sabbagh, Dennis Harding, Mark Richard Sainato and

Jason Willie Robinson, employees of the juvenile facility

at which a detainee of that facility, the victim in this case,

died, to charge the crime of reckless endangerment. On

motion of the petitioners, the Circuit Court for Carroll

County ruled that the indictments were insufficient, as to

each, “the sole count [being] based upon an alleged

omission of failing to call emergency services in a timely

manner rather than the actual commission of any act by

the Defendants.”

The Court of Special Appeals affirmed. Although it

recognized, therefore agreeing with the State, that

reckless endangerment may be a lesser included offense

of negligent manslaughter and thus presumably, in that

circumstance, would support an indictment so charging, it

was not persuaded that *14 it could sustain an indictment

where the only conduct charged was passive conduct.

Indeed, the intermediate appellate court pointed out that

“no case cited by the State stands for the proposition that

the statutory crime of reckless endangerment is a lesser

included offense to manslaughter in situations where the

defendants are accused of passive conduct.”

I believe the Circuit Court and the Court of Special

Appeals got it right. Accordingly, for the reasons they

expressed, I dissent.

All Citations 416 Md. 1, 4 A.3d 991

Footnotes

1) Md.Code Ann. (2002), Crim. Law Art., § 3–204, in pertinent

part, provides:

(a) Prohibited.—A person may not recklessly;

(1) engage in conduct that creates a substantial risk of death

or serious physical injury to another[.]

2) Obviously, no Respondent can be convicted of reckless

endangerment based upon the force used against the

deceased. Evidence of the injuries sustained by the deceased

will be admissible, however, for the limited purpose of

establishing the Respondents’ awareness of the duty to obtain

emergency services for the deceased.

61

C. Jury Instructions

MPJI-Cr 4:26A RECKLESS ENDANGERMENT

The defendant is charged with the crime of reckless endangerment. In order to convict the defendant of reckless endangerment, the State must prove:

(1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another;

(2) that a reasonable person would not have engaged in that conduct; and

(3) that the defendant acted recklessly.

The defendant acted recklessly if [he] [she] was aware that [his] [her] conduct created a risk of death or serious physical injury to another and then [he] [she] consciously disregarded that risk.

Notes on Use: Use this instruction if the defendant is charged with reckless endangerment under. Md. Code Ann., Crim. Law I § 3-204 (2012).

Comment: In 1989, Maryland enacted a reckless endangerment statute, prohibiting recklessly engag[ing] in conduct that creates a substantial risk of death or serious physical injury to another.” Md. Code Ann., Crim. Law I § 3-204(a)(1) (2012). The actus reus is the “reckless conduct and not the harm caused by the conduct ... .” Minor v. State, 326 Md. 436, 442, 605 A.2d 138, 141 (1992). Whether the defendant's conduct created a substantial risk of death or physical injury is an objective determination and is not dependent upon the subjective belief of the defendant. Id. at 443, 605 A.2d at 141. “The test is whether the ... misconduct, viewed objectively, was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish.” Id. The requisite gross departure is satisfied by negligence that is “gross or criminal, viz., such as manifests a wanton or reckless disregard of human life.” Mills v. State, 13 Md. App. 196, 200, 282 A.2d 147, 149 (1971) (interpreting voluntary manslaughter), cert. denied, 264 Md. 750 (1972). A substantial risk of harm must be created and then disregarded in order for a defendant to be guilty of reckless endangerment. Williams v. State, 100 Md. App. 468, 503-04, 641 A.2d 990, 1007 (1994).

Intent to cause harm is not a necessary element of reckless endangerment. Instead, the court must merely view the evidence in the light most favorable to the State and then apply the objective test described above. In State v. Albrecht, 336 Md. 475, 649 A.2d 336 (1994), the Court of Appeals expressed clearly that, to determine whether or not conduct rises to the level of reckless endangerment, a court must decide whether or not the defendant's conduct is reasonable under the circumstances, adopting the objective test created in Mills. See Mills, 13 Md. App. 196, 282 A.2d 147 (holding that a police officer's drawing and racking of a shotgun and aiming the gun, with finger on trigger, at an unarmed individual who did not present a threat, recklessly endangered nearby bystanders); see also Boyer v. State, 107 Md. App. 32, 666 A.2d 1269 (1995) (holding that possession of a loaded machine gun, with no intent to cause bodily harm, justified a conviction of reckless endangerment), cert. denied, 341 Md. 647, 672 A.2d 622 (1996); Minor v. State, 326 Md. 436, 605 A.2d 138 (holding that giving a loaded shotgun to another and daring that person to shoot himself supported a reckless endangerment conviction); cf. Kilmon v. State, 394 Md. 168, 905 A.2d 306 (2006) (holding that, although the Legislature intended to reach a broad range of conduct under the reckless endangerment statute, it did not intend it to apply to a pregnant woman who ingests cocaine). Because the elements of self-defense, an honest and reasonable belief of imminent danger of serious bodily harm, negate the elements of reckless endangerment, “a self-defense instruction, if generated, is relevant to a charge of reckless endangerment.” Jones v. State, 357 Md. 408, 430 745 A.2d 396, 408 (2000).

If the injury or harm does occur, the count of reckless endangerment will merge, for sentencing purposes, into the resulting homicide or assault. Alston v. State, 101 Md. App. 47, 61, 643 A.2d 468, 475 (1994) (holding that reckless endangerment merges into any homicide conviction), aff'd, 339 Md. 306, 662 A.2d 247 (1995); Williams v. State, 100 Md. App. at 510-11, 641 A.2d at 1010-11 (same); see Lamb v. State, 93 Md. App. 422, 426, 613 A.2d 402, 404 (1992) (affirming lower court's ruling that reckless endangerment merges into conviction for assault), cert. denied, 329 Md. 110, 617 A.2d 1055 (1993); Holbrook v. State, 364 Md. 354, 374, 772 A.2d 1240, 1251 (2001) (finding that it does not violate double jeopardy to sentence a defendant separately for arson and reckless endangerment because reckless endangerment is a general intent crime and does not merge with arson, a specific intent crime.)

62

63

Guidelines for Competition Judges

I. Procedures for Scoring Competitions Rankings are determined by both wins and points. Therefore, it is essential that the presiding judge carefully rate

each team on all elements listed on the Performance Score Sheet. A. Tie Point

Always award the Tie Point immediately after the close of the trial, and before adding the scores. This point will be used only in the event of a tie.

B. Decorum Please be sure to score each team’s overall performance in decorum in the space provided.

C. Announcing Your Decision 1. After awarding, tallying and double-checking the rest of the scores, your first announcement to the

teams should focus on the general student performance, decorum, and legal understanding that you just witnessed.

2. Your second announcement should be which team prevailed, based on the merits of the case. 3. Your last announcement should declare who prevailed based on the score sheet.

D. Providing Feedback to the Team

Please be mindful that students have often traveled considerable distance for the competition, and still have other obligations (E.G. HOMEWORK). Feedback should be limited to a maximum of 10 minutes.

II. Time Limitations Students have been asked to limit their presentations to the timeframes listed in #2 of the Organizational Rules (page 1). It is particularly helpful for teams to know in advance how you will handle the time guidelines. Some judges prefer to give a warning, for instance, when there is one minute left; others expect students to mind the time on their own. Your jurisdiction may also incorporate a student bailiff(s); in this case, the bailiff will keep time throughout the match.

Competitions will last approximately 2 hours INCLUDING your deliberation and feedback! III. Mock Trial Simplified Rules of Evidence

The rules of evidence governing trial practice have been modified and simplified for the purposes of mock trial. Other more complex rules are NOT to be raised during the trial enactment. Attorneys and witnesses may neither contradict the Statement of Facts or Affidavits, nor introduce any evidence that is not included in this packet of materials. As with any perceived violation of a rule of evidence, opposing team members should object or request a bench conference if this occurs.

IV. Trial Procedures A. Motions to Dismiss

The purpose of the competition is to hear both sides; therefore, motions to dismiss are not allowed. There shall be no sequestration of witnesses at any time during the trial. If such a motion is made, the motion MUST be denied.

B. Opening/ Closing Arguments

Competition procedures permit only one opening statement and one closing argument for each team. In Mock Trial Competition, the Defense Team will always make the first closing argument, followed by the Prosecution/Plaintiff. There is no rebuttal in Mock Trial.

C. Direct and Cross Examinations Each attorney (three for each side) must engage in the direct examination of one witness and the cross-examination of another.

Mock Trial Performance Rating Sheet  

Schools:___________________________________________vs._________________________________________                         Plaintiff/Prosecution                                  Defense  1=Fair    2=Satisfactory    3=Good             4=Very Good            5=Excellent  Please note that you are asked to give each attorney a composite score for their overall presentation: direct and re‐direct or cross and re‐cross. If re‐direct or re‐cross is NOT used, the attorney should NOT be penalized for not using this technique if there was nothing to be gained by using re‐direct or re‐cross.  

**Please do not use fractions in scoring.**  

  Prosecution/ Plaintiff 

Defense 

 

Opening Statements     

Direct & Re‐Direct Examination by Attorney     

Cross & Re‐Cross Examination by Attorney     

 PLAINTIFF/PROSECUTION First Witness  Witness Performance     

Direct & Re‐Direct Examination by Attorney     

Cross & Re‐Cross Examination by Attorney     

 PLAINTIFF/PROSECUTION Second Witness  Witness Performance     

Direct & Re‐Direct Examination by Attorney     

Cross & Re‐Cross Examination by Attorney     

 PLAINTIFF/PROSECUTION Third Witness  Witness Performance     

Direct & Re‐Direct Examination by Attorney     

Cross & Re‐Cross Examination by Attorney     

 DEFENSE First Witness  Witness Performance     

Direct & Re‐Direct Examination by Attorney     

Cross & Re‐Cross Examination by Attorney     

 DEFENSE Second Witness  Witness Performance     

Direct & Re‐Direct Examination by Attorney     

Cross & Re‐Cross Examination by Attorney     

 DEFENSE Third Witness  Witness Performance     

Closing Arguments     

Decorum/ Use of Objections: Students were courteous, observed courtroom etiquette, 

spoke clearly, demonstrated professionalism, and utilized objections appropriately. 

   

                                                                                                                                                    TOTAL 

   

Tie Point (Before totaling score sheet, please award one point to the team you think gave the best 

overall performance. This point will be used ONLY in a tie.) 

   

                                                                                                                                        TOTAL WITH TIE POINT (provide this score only in a tie) 

   

  

I have checked the scores and tallies, and by my signature, certify they are correct:  Presiding Judge:__________________________________________________       Date:____________________________________________      Teacher Coach, Defense:____________________________________ Teacher Coach, P:____________________________________________ 

Maryland State Bar Association/ CLREP 2016-2017 Statewide High School Mock Trial Competition

Note: All competition dates are final. A change by the Chief Judge of the State of Maryland is the only exception.

Organizing Local Competitions

The Citizenship Law-Related Education Program will: provide Mock Trial Guides and rules for each State competition; disseminate information to each circuit; provide technical assistance to Circuit Coordinators; provide certificates to all registered participants who compete for the season; assist in recruitment of schools; act as a liaison in finding legal professionals to assist teams;

The role of the Bar Association is: to advocate involvement of local attorneys in preparing teams and hearing trials; to provide support to schools; to assist the Circuit Coordinator.

The role of the Circuit Coordinator is: to make decisions/ mediate at the local level when problems or questions arise; to establish the circuit competition calendar; to arrange for courtrooms, judges, and attorneys for local competitions; to inform and attempt to recruit all schools in the circuit; to work with the local Bar Associations to set court dates, recruit attorney advisors, and establish local guidelines; to arrange general training sessions if necessary.

The role of the individual school/teacher coach is: to DEMONSTRATE that winning is secondary to learning; to coach and mentor students about the “real-world” aspect of judging in competitions- to teach sportsmanship, team etiquette and courtroom decorum; to recruit students for the team; to arrange training sessions and scrimmages; to arrange transportation to and from competitions to supervise the team during practices and competitions; to work with partners to recruit attorney advisors; to ensure that the team arrives at all scheduled mock trial competitions.

Registration Deadline Friday, November 4th, 2016

Case Mailed to Paid & Registered Teams Thursday, November 10th, 2016

Circuit Competitions (1st level of competition) January 3rd -March 22nd , 2017

Circuit Champions Declaration Date Thursday, March 23, 2017

Regional Competitions (2nd level of competition) The Eight Circuit Champions Compete in Single Eliminations

April 3rd and 6th , 2017

Semi-Final Competitions: Anne Arundel Circuit Court, 4pm Thursday, April 27th, 2017

State Championship: Maryland Court of Appeals, Annapolis 10 am *Live webcast,

http://www.mdcourts.gov/coappeals/webcast.html

Friday, April 28th, 2017

MOCK TRIAL STATE CHAMPIONS

2016: Annapolis High School (Anne Arundel County)

2015: Severna Park High School (Anne Arundel County)

2014: Richard Montgomery High School (Montgomery County)

2013: Annapolis High School (Anne Arundel County)

2012: Park School of Baltimore (Baltimore County)

2011: Park School of Baltimore (Baltimore County)

2010: Severna Park High School (Anne Arundel County)

2009: Allegany High School (Allegany County)

2008: Severna Park High School (Anne Arundel County)

2007: Severn School (Anne Arundel County)

2006: Severna Park High School (Anne Arundel County)

2005: Richard Montgomery High School (Montgomery County)

2004: Park School of Baltimore (Baltimore County)

2003: Elizabeth Seton High School (Prince George’s County)

2002: Towson High School (Baltimore County)

2001: DeMatha Catholic High School (Prince George’s County)

2000: Broadneck High School (Anne Arundel County)

1999: Towson High School (Baltimore County)

1998: Pikesville High School (Baltimore County)

1997: Suitland High School (Prince George’s County)

1996: Towson High School (Baltimore County)

1995: Pikesville High School (Baltimore County)

1994: Richard Montgomery High School (Montgomery County)

1993: Elizabeth Seton High School (Prince George’s County)

1992: Oxon Hill High School (Prince George’s County)

1991: Westmar High School (Allegany County)

1990: Bishop Walsh High School (Allegany County)

1989: Lake Clifton/ Eastern High School (Baltimore City)

1988: Pikesville High School (Baltimore County)

1987: Thomas S. Wootton High School (Prince George’s County)

1986: Old Mill High School (Baltimore County)

1985: High Point High School (Prince George’s County)

1984: Worcester County Team