EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, September 16, 2015

The Law Behind the Possible Transfer of Jay's Case to Baltimore County

In Monday's eleventh episode of the Undisclosed Podcast, we noted how Jay's defense counsel believed that, if he did not plead guilty to accessory after the fact to murder in Baltimore City, his case would have been transferred to Baltimore County, where he would have been charged with murder and faced the death penalty. Given time limitations, I just briefly touched upon why such a transfer would have been possible. In this post, I will flesh out this analysis.

The Sixth Amendment states in relevant part that

“in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law….”

There's a lot to unpack in this language, but one thing is clear: Some crimes are continuing crimes. At the federal level, the jurisdiction over such crimes is covered by 18 U.S.C. Section 3237(a), which states in relevant part that

Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

One example based upon this statute that I give to students goes as follows:

Hector Sandoval and others kidnap Frank Rivas in Davenport, Iowa. The evidence established that Rivas was then driven from Davenport, Iowa, across the Mississippi River on a bridge in the Quad Cities, and into the Central District of Illinois, before being taken to Chicago in the Northern District of Illinois. Can the trial be held in the Central District of Illinois? See United States v. Sandoval, 347 F.3d 627 (7th Cir. 2003).

The answer to this question is "yes" because kidnapping is a continuing crime. It begins in the district in which the victim was abducted, continues in any districts through which the victim is taken, and concludes when the victim is taken to the district where she is finally found.

This same type of analysis applies at the state level, and we know that the State's theory of the case was murder based upon kidnapping by fraud. This kidnapping allegedly started at Woodlawn High School in Baltimore County when Adnan Syed got into Hae Min Lee's car based upon a lie. Based upon this theory of the case, Jay (and Adnan) could have been prosecuted in Baltimore County even though Hae was "buried" in Leakin Park in Baltimore City and possibly murdered in Baltimore City as well. As such, Jay's case easily could have been transferred to Baltimore County if he refused to make a deal.



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When you say Jay's defense counsel believed this, at what point are you suggesting they believed this? During the ten minutes Benroya met with Jay (presumably even with Urick there as well) and decided what his strategy was going to be?

I think you give his counsel too much credit. When was there time to develop a strategy?

Posted by: hoovill | Sep 16, 2015 10:21:54 AM

But since the kidnapping charge is separate from the murder (Adnan was not convicted of felony murder with kidnapping as the underlying felony, rather the two offenses were separate counts), wouldn’t the state be limited to charging only the kidnapping in Baltimore County, in which case the death penalty would not apply? This case seems different from, say, Heath v. Alabama, where double jeopardy did not bar prosecution of a murder in Alabama, after acquittal in Georgia, due to the dual sovereignty doctrine. In that case, the crime was chargeable as an offense in Alabama, even though the killing took place in Georgia, because the charge in Alabama consisted of murder during a kidnaping, and the kidnapping itself had commenced in Alabama. Heath v. Alabama, 474 U.S. 82, 85 (1985). Here, kidnapping is not an element of the murder charge. Certainly, if Adnan and Jay had been tried for conspiracy to commit murder, and any acts in the conspiracy took place in Baltimore County, the conspiracy (and crimes committed in the course of the conspiracy) would be triable in the County. Similarly, a felony murder charge probably could have been brought there. But how likely are those scenarios under the facts of the case?

Posted by: Josh | Sep 16, 2015 10:29:32 AM

hoovill: Benaroya first talked to Urick and then later talked to Jay outside of Urick’s presence.

Josh: The State’s theory was that Adnan lied to Hae to get in her car (false imprisonment by fraud), drove with her in the car to Best Buy under false pretenses (kidnapping by fraud) and then killed her during the false imprisonment/kidnapping.

Posted by: Colin | Sep 16, 2015 10:49:13 AM

Right, I’m just not sure whether the theory of the case (which is that Adnan started with kidnapping, and then later committed murder) suffices to make the two distinct offenses part of the same “crime” for the purposes of the 6th Amendment. I agree that, as kidnapping is a continuing offense, it could have been prosecuted in Baltimore County or in Baltimore City. However the murder charge, while connected to the kidnapping, did not (unlike in Heath v. Alabama) include kidnapping as an element, and murder itself is not a continuing crime. Thus, I don’t know that the murder charge could have been prosecuted in the County, absent a conspiracy allegation or felony murder charge (which would have incorporated the kidnapping into the murder as a part of the same “crime”). Since Jay, according to the State’s theory, was not involved in the kidnapping, his conduct may only have been chargeable in Baltimore City. I could be wrong, the 6th Amendment may only require that a defendant be tried by an impartial jury “of the state and district wherein the crime [or connected crimes that form the theory of the case for how the crime was accomplished] shall have been committed.” I haven’t seen a lot of cases involving the district issue. Still, the language of the Amendment seems to restrict the prosecution to the district where the conduct comprising the elements of the “crime” itself (in the case of murder, the killing while having the requisite intent) took place.

Posted by: Josh | Sep 16, 2015 11:14:44 AM

I was under the impression that the vicinage clause wasn't incorporated against the states.

Posted by: Ryan | Sep 16, 2015 11:28:11 AM

Yes, that's correct, so the 6th Amendment isn't really the issue. The relevant statute, Md. Code, CP § 4-201(a), provides that “[i]n the District Court, a prosecution for a crime shall be brought in the district that includes the county where the crime was committed, and the trial shall be held in that county unless the case is lawfully removed.” Thus, the issue of what constitutes the “crime” of murder remains. However Md. Code, CP § 4-201(h) states that “[e]xcept as otherwise provided by law, a prosecution of a person for being an accessory after the fact to murder or other felony shall be brought in the county in which the person became an accessory.” This explains why Jay was charged as an accessory in the City, regardless of where the crime(s) took place.

Posted by: Josh | Sep 16, 2015 11:56:05 AM

So, Jay would have been prosecuted in City, contrary to what Benaroya was led to believe. Ineffective assistance of counsel, maybe? :-)

Posted by: Daniel | Sep 16, 2015 12:16:54 PM

Md. Code, CP § 4-204(d) provides that “[i]f a crime is committed in the State, an accessory before the fact may be charged, tried and convicted, and sentenced in a county where: (1) an act of accessoryship was committed; or (2) a principal in the crime may be charged, tried and convicted, and sentenced.” Like most states, Maryland has done away with the functional distinction between accessories before the fact and principals, and the former may be prosecuted for the crime itself. Thus if Jay had been an accessory before the fact (which meant he would have had to have helped Adnan before the killing), he could have been charged with murder. If any of his relevant acts, before the killing, had taken place in Baltimore County (if, for example, he had helped with the kidnapping), then he could have been charged with murder in the County (though only if he knew he was helping with a murder, or if the felony murder rule was implicated). Alternatively, he could have been charged in the County if Adnan could have been charged in the County for that same crime; in that case, the question would remain whether Adnan could be charged for the murder, as opposed to the kidnapping, in the County.

Posted by: Josh | Sep 16, 2015 12:23:32 PM

Actually, in looking at things again, the Woodlawn Best Buy was in Baltimore County:


So, there's really not an issue at all. The case actually really should have been in Baltimore County.

Posted by: Colin | Sep 16, 2015 1:17:18 PM

Baltimore City looks like a miniature Nevada

Posted by: dw | Sep 16, 2015 1:54:46 PM

The state's theory of the case was that the murder occurred in the county.

Posted by: Bacchys | Sep 16, 2015 4:44:27 PM

Colin - I am confused as to what charges Jay faced and were rapidly given a 'stet.' Do you have any docket entries, or paperwork of any kind on this? Thanks for your months of yeoman's work on this case.
One wonders what such a thorough defense would cost, if hired in the typical manner? Three (!) seasoned lawyers, giving their all? The mind reels....

Posted by: Fancy Nancy | Sep 16, 2015 8:10:22 PM


How much time could Benroya really have talked to Jay alone? It couldn't have been very long. And she talked to no one else involved in the case.

Furthermore, Jay claimed that he was told he was being introduced to several attorneys, not just Benroya, and that he could choose one. Who were these other attorneys? And does that mean Urick told them also, that this is the deal they have to take for Jay? How many people did Urick tell this to?

Doesn't that seem very unlikely?

Posted by: hoovill | Sep 17, 2015 2:59:32 AM

Do they have to give a formal reason for "kicking it to the county"? Was their stated reason that Jay wouldn't cooperate? That they didn't have a case? Did it seem suspicious to Benaroya?

Posted by: Teresa | Sep 17, 2015 10:52:31 AM

Fancy Nancy: Jay was charged with disorderly conduct and resisting arrest.

hoovill: We answer both of those questions on next week’s Addendum.

Teresa: Often times, a crime can be prosecuted in multiple jurisdictions. All it takes is for some crucial element of the crime to have been committed in the jurisdiction, and a crime could have several crucial elements.

Posted by: Colin | Sep 18, 2015 5:08:12 AM

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