As soon as Wednesday, Nichols will first decide if Alston was appropriately ousted from her seat when she was convicted in October of misconduct in office, a conviction that technically vanished a month later when she paid a fine, completed community service and received what is known as a probation before judgment.
If he decides she was, Nichols will then sort out the legal morass that has become her successor’s appointment.
That legal morass took center stage Tuesday. Alston sat with her attorney, whispering in his ear frequently during the proceedings; Gregory Hall, the man tentatively picked to replace her, sat amid reporters, leaning forward and nodding along with his attorney’s arguments.
Lawyers first took up whether Alston’s seat needs to be filled at all — which, seemingly, could render all other questions moot. Alston pleaded guilty in October to misconduct in office, which triggered her automatic removal under Maryland’s constitution. The next month, after she paid $800 restitution and completed 300 hours of community service, a judge gave her probation before judgment — a result that is technically not a conviction.
Her attorney now says the October “conviction” was not really a conviction at all — or, at least, not a final one — and Alston should never have lost her seat.
“Finality occurs when there is no possibility of that conviction being changed through any means,” said Raouf Abdullah, Alston’s attorney. He argued that probation before judgment was expected when she pleaded and her conviction was effectively “gone.”
“It can be expunged as if it never existed,” Abdullah said.
Matt Fader, an attorney for the governor’s office and speaker of the Maryland House of Delegates, argued that Alston had agreed as part of her plea to waive all appeal rights, effectively finalizing her conviction.
The probation before judgment, he said, was a reward for completing “certain rehabilitative requirements” and did not “reverse” or “overturn” her conviction. He noted that the judge who gave her the probation before judgment made that point explicitly.
“There was no intention to reverse the verdict or overturn the verdict,” Fader said.
If Nichols agrees with Fader, he will then have to decide what happens to the vacant seat. On Nov. 2, the Prince George’s County Democratic Central Committee picked Hall by a 12 to 10 vote, a controversial selection because Hall has admitted to being a former crack dealer — and he was convicted of a misdemeanor gun charge for his role in an early 1990s gun battle that killed a 13-year-old boy.
The Hall pick was sent to Gov. Martin O’Malley (D) for what some expected would be rubber-stamp approval. But the governor stalled and eventually asked the committee to withdraw its nomination. Hall, in turn, took legal action to force O’Malley’s hand.
Walter Green, Hall’s attorney, argued Tuesday that the governor was bound by Maryland law to approve Hall.“The duty is for the governor to make the appointment,” Green said. “He has no say. He has no discretion whatsoever.”
The law, Green said, says the governor has a “duty” to put forth the pick of the Democratic Central Committee — and it does not spell out ways he can either reject the pick or the committee can withdraw it.
Attorneys for O’Malley and the Democratic Central Committee argued that while the state constitution might not explicitly address the committee’s ability to withdraw Hall’s name, that should not burden them with a legislator they do not want.
Joe Sandler, an attorney for the Democratic Central Committee, said committee members would have already taken Hall’s name off the table had Hall not filed legal action — though he acknowledged that it was mere “chaos and confusion,” rather than any binding legal ruling, that had given them pause on doing so.
He said committee members learned of Hall’s past from news articles only after they had selected him, and those articles changed their minds.
Fader said that language in the constitution saying the governor had a “duty” to approve the committee’s selection only meant that the responsibility of picking a replacement delegate was his, not that he was legally obligated to rubber-stamp the committee’s selection.
Nichols asked only a few questions during the hours-long hearing, and none betrayed how he might be leaning. A few times, he joked that whatever he decided was likely to be appealed. He asked attorneys to give him 24 hours and said he would e-mail them a decision.