Former Hogan aide’s pre-trial statements carry risk, legal experts say

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Most people facing serious criminal charges are reluctant to speak publicly before their case goes to court. Other defendants, those who feel the urge to fight back through the media, are usually convinced by their lawyers to keep quiet.

Not Roy McGrath.

Gov. Lawrence J. Hogan Jr.’s former chief of staff, who was indicted in October on charges of misappropriating government funds and misconduct in office, has given interviews to the Washington Post and Baltimore Sun — and has written two op-ed columns in his own defense.

McGrath served as chief of staff for only three months. He stepped down in August 2020, just days after the Baltimore Sun reported that he convinced his previous employer, the Maryland Environmental Service, to award him a year’s salary — $233,647.23 — as severance pay.

Although he left MES of his own accord to join the administration, at an identical salary, McGrath maintained that the payout was both customary agency practice and a reward for stellar performance.

Members of the environmental service’s board of directors later told a legislative panel that they were uncomfortable giving a McGrath a severance but did so after he insisted that Hogan “anticipated” the payout, a charge Hogan has long denied. In addition to the severance, McGrath received $55,000 in travel and expense reimbursements after hastily submitting a mountain of receipts in the waning days of his tenure.

In public statements prior to his indictments — and since — McGrath has appeared eager to convince the public that he has done nothing wrong. In a commentary that ran in the Sun on Tuesday, he veered into new territory, asserting that Hogan has “a problem correctly remembering facts.”

“While I remain incredibly proud of our historic success during my time at MES, after more than a year of being maliciously maligned and silently listening to countless facts be dishonestly misrepresented by Mr. Hogan and others with obvious political and personal agendas, I am compelled to begin setting the record straight,” he wrote.

The comments were notable because the two men have known each other 30 years, dating back to Hogan’s bid for Congress in the early 1990s. “We parted, I thought as friends, and with a hug,” McGrath wrote of his departure last summer.

To bolster his argument that Hogan has “misrepresented important facts,” McGrath noted that when he left the government, Hogan praised him for his leadership.

“It is with regret that I have accepted Roy McGrath’s resignation as chief of staff,” the governor said at the time. “Roy has been a deeply valued member of our administration, and our state is better for his dedicated service.”

More recently, however, Hogan said McGrath was “terminated within a matter of days” of the Sun story. To McGrath, the governor was “calculatedly shifting his explanation until finally washing his hands of me, like a modern-day Roman governor.”

He also accused the governor of “disingenuous spin” with regard to a text message that Hogan sent to him. “I know you did nothing wrong,” the governor wrote. “I know it is unfair. I will stand with you.” A Hogan aide claimed the governor was unaware of all the facts when he sent that message, even though details surrounding the severance were by then public knowledge.

Legal analysts said McGrath’s public statements — and his apparent desire to litigate the past in the court of public opinion — risk undermining his attorney’s efforts to defend him in court.

“It’s a nightmare for a lawyer, because he creates such fertile ground for cross-examination,” said Paul F. Kemp, a veteran Montgomery County defense attorney. “He’s just a train wreck. That’s just not good for a defendant.”

A. Scott Bolden, a longtime defense attorney in the District of Columbia, said it’s “rare and unique” for a defendant to speak publicly while under investigation.

“Everything you say can and will be used against you by the feds or by the prosecutors,” Bolden said. “So most defendants follow their legal advice and they don’t speak to the public.”

When defendants do speak publicly, Bolden said, their statements better be factually accurate, because “you’re going to hear your words again. And if you’ve lied to the public, the government can use that against you as a prior inconsistent statement.”

In an interview on Thursday, McGrath defended his decision to make public comments prior to his upcoming trials.

“For a number of reasons, I was previously unable to share my side of this matter, nor do I plan to share more outside of the legal process,” he said. “However, certain, substantial misrepresentations have stood unchallenged for a year too long already, and it demanded the record be set straight.”

He declined to comment further.

When the General Assembly hired a special counsel to probe McGrath’s severance last year, he hired longtime Prince George’s County defense attorney Bruce L. Marcus to represent him. The two have since parted ways. Marcus declined a request for an interview, but associates described him as an old-school attorney who prefers to argue his cases in the courtroom.

Joseph Murtha, a highly-regarded Baltimore County attorney who has handled high-profiles cases throughout his career, is McGrath’s new attorney.

Kemp said that some of McGrath’s claims appear contradictory, such as his assertion that Hogan was aware of his severance but wanted to be spared the details. “Either he (Hogan) anticipated it and supported it, or he wanted to be kept out of it; the two things can’t possibly co-exist.”

Kemp said it’s usually better for a defendant’s lawyer to file court motions on a client’s behalf than to have the accused speak publicly. “It’s obviously strategically better to keep your defense to yourself as to what it’s going to be and how it’s going to play out. Leave yourself all the options in the world.

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