Monday, February 24, 2014

Press Conference Statement

I am Page Croyder. I am running for Judge of the Circuit Court of Baltimore. I stand for truth, transparency and fairness in the court system, and I put those principles into action both as an assistant state’s attorney and through the blog I have written for the past 6 years.

What I do not stand for, what the public should not stand for, are judges who embarrass and degrade the jurors, witnesses, and attorneys who appear in court before them. For that reason I am running against Judge Alfred Nance.

Judge Nance’s inappropriate behavior was known inside the courthouse 15 years ago, prior to his first election as judge. But in a conspiracy of silence from the courthouse and from the bar, the information never reached the public and he was elected.

He continued with his subtle sexual harassment of women, and finally he was investigated and reprimanded by the Judicial Disabilities Commission. But like a runaway train that can’t stop, neither did Nance. He was again investigated for harassment as well as for the disrespectful and bullying behavior he has come to be known for, such as berating a juror because Nance believed he was wearing his yarmulke crooked. Yet Nance was allowed to continue to sit as a judge because the Disabilities Commission lacks the will to take meaningful action against judges who misbehave. 

Through the years Nance has continued to enhance his reputation for the disrespectful and degrading way he treats people. Despite this, Governor Martin O’Malley has appointed him to a second 15-year-term, an action the governor should be called upon to explain.

We can now expect the legal establishment to do what it did last time: pretend that Nance is the best candidate possible because he is part of a slate of sitting judges that it picked. It will support Nance because it wants to pick the judges, not leave it to the people.

Today I say to the people of Baltimore: electing judges is the only protection you have from a legal establishment that refuses to admit that it was wrong. A legal establishment so stubborn it would rather repeat its mistake than protect you from a bad judge.

I call upon the bar to do the right thing: withdraw its support of Nance, and support a ticket without him. But I don’t expect it. So I am offering the citizens of Baltimore the opportunity to do what the governor and legal powers have failed to do: get an ill-tempered, harassing and bully of a judge off the bench.

I have practiced law as a legal aid attorney, a Coast Guard law specialist, and an assistant state’s attorney in Baltimore. I worked hard in my career to improve the criminal justice system, even when those efforts came at my own personal expense. I understand the impact of crime on citizens. I also understand the impact of the criminal justice system on the individuals who go through it. We need a fair and balanced system, one that does not discriminate against the poor, one that protects citizens from violence, and one that gives offenders a realistic chance to change their lives and become productive citizens.

As a judge I will work hard to achieve this. And I will always treat citizens, whether they are witnesses, victims, defendants, jurors or attorneys, with the respect and dignity to which they are entitled.

Monday, February 17, 2014

Keep Your Vote

If these two judges were up for election, what would voters do?

Askew Gatewood defied the Maryland Constitution by moving out of Baltimore where he sits as a judge and by running a real estate business.  A few years ago the state criminally convicted Gatewood of illegally dumping construction debris into the Patapsco River around his Anne Arundel County home.  As part of the cleanup, 240 dump trucks carried away 4800 tons of debris from the river.  That was only what could be gotten out.  Who knows how much actually went in?

Alfred Nance, not long after his appointment 15 years ago, became the subject of numerous complaints by female attorneys for inappropriate, sexually-based conduct towards them.  He was reprimanded by the Judicial Disabilities Commission, brought up again on charges, yet has continued to serve as a judge, where he has enriched his reputation for rude, arrogant behavior and inappropriate comments towards women, lawyers, jurors and witnesses.  He's made news for berating a potential juror for wearing his yarmulke crooked ordering a woman to be locked up for yelling "I love you"  to a defendant.

It's my bet that if given the chance and the facts, voters would kick out Gatewood and Nance.  But only in Nance's case is there any possibility.  Nance is a Circuit Court judge, the only type of Maryland judge that must be elected by Maryland voters.  Gatewood sits on the District Court which is, for all practical purposes, a lifetime appointment.

The election of Circuit Court judges probably has its roots in early American history when citizens elected local, trusted citizens to preside as judges in their small communities.   Circuit judges preside over all jury trials and the most important civil and criminal cases in Maryland's court system. The governor appoints them and then they "stand for election."  Most of the time they are not challenged because the bar associations throw their weight and money behind the "sitting judges." To challenge the sitting judges risks significant legal ostracization for practicing attorneys.

Many in the legal establishment want to get rid of Circuit Court judicial elections, fearing that politics will corrupt what is supposed to be the independent branch of our government.  Attorney General Doug Gansler, now a gubernatorial candidate, made a big push to eliminate Circuit Court elections in Maryland a couple of years ago.  He failed, largely because black legislators opposed his effort.  It was thanks to the vote that African Americans finally obtained representation on Baltimore's Circuit Court.

In theory I oppose electing judges.  In practice, I have concluded that voters should never give up the right to vote for Circuit Court judges until the legal establishment shows the will to boot out the bad ones.  

Anyone who thinks that the appointment of judges produces better, less-political judges doesn't know Maryland's system.  Many of the judicial applicants that I have personally known worked harder trying to get appointed than they ever did at their jobs.  It isn't about the best, most qualified candidates, as the system pretends.  It's about those who best develop connections and satisfy the governor's political purposes.  As a result we have an average--at best--judiciary in Maryland.  (One notable exception is new Chief Judge Mary Ellen Barbera, a ray of hope for the future.)

The worst part is that once judges are appointed, citizens are stuck with them, no matter how badly they behave.   When Gatewood was charged with dumping all those tons of debris into the Patapsco, the Judicial Disabilities Commission didn't even bother to wait until the criminal case concluded.  They issued a little "tsk tsk" (a reprimand) and sent him back to the bench.  And although the Maryland Constitution requires the governor to remove a judge convicted of a crime, Governor O'Malley did nothing after Gatewood was pronounced guilty.  Next year, by law, the governor will have to appoint Gatewood to a new 10-year term when his current term expires.  Only the failure of the Maryland Senate to confirm his appointment could stop Gatewood from serving, a rare occurrence.  

As for Nance, despite his documented behavioral issues, was very quietly reappointed by Governor O'Malley, who knows better.   

So the only ones left to act are the voters.  I don't fool myself into thinking that they will kick Nance out come this year's election. The law firms and bar associations stand ready to purchase advertising and space on the ballots of other candidates, and the sitting judges will hold hands with Nance and ask voters to vote for all of them.  Citizens will re-elect Nance not because they approve of him but because they won't know about him.  He bears the legal establishment's stamp of approval as "best qualified" to be judge.  

But voters should never give up their vote.   They couldn't do any worse than the legal establishment in selecting our Circuit Court judges, not if they played eenie-meenie-miney-mo in the voter's booth. Maybe, just maybe, someone or some group will rise up, get their attention, and get a bad judge off the bench.  A small chance is better than no chance.  

Since the original publication of this post two matters have been brought to my attention. Judge John Arnick left the District Court bench in the early 1990s when racist and sexist remarks he made were revealed prior to his confirmation hearing in the Senate.  

And I apologize to the Baltimore Judicial Nominating Commission for originally stating that it renominated Judge Nance.  (I stand by my original remark that Baltimore's commission has made many poor choices over the years, including Nance the first time around, whose behavior on the bench should have been no surprise.)  Governor O'Malley reappointed Nance without going through the commission, so the responsibility rests entirely with him. 

Monday, September 30, 2013

Cleaning up the Court of Appeals' Mess

Maryland's Court of Appeals sure did make a mess of things.  It ruled that poor defendants must get free lawyers when they see commissioners to have their bail set.  I have written more than once about why--despite what sounds like a 'good idea'--this ruling is woefully misguided.

If this was a decision without an economic impact, that would be one thing.  However, if legislators try to fit this ruling into the current bail system, taxpayers will suffer huge financial consequences.

Right now District Court commissioners process defendants 24 hours a day, 365 days a week.  They do this to give defendants the chance to get out of jail as quickly as possible, either by releasing them on their promise to come to court or by setting bail.  Only those who can't make bail are then seen by judges on the next court day.

But if we now add free lawyers to the process, we have to staff every single booking center in the state with public defenders...24 hours a day, 365 days a year.  Yikes!  And the local jails will have to find room for these lawyers to meet with all arrested persons to find out if they are poor and then to attend the commissioner hearings. 

What an economic and logistical nightmare.  But as promised in my last blog, I have the solution. Maryland lawmakers should amend the law to make judges, and only judges, set bails.  

You see, the rules for processing arrested persons were made by the Court of Appeals.  It decided that defendants have to be seen within 24 hours.  (Many states use 48 or 72 hours, though I like 24 hours.)   And it decided that commissioners would do the dirty work of the court, sitting in jails and working around the clock.  Now that is has found a flaw in the system, it should solve the problem

If Maryland lawmakers revoked the power of commissioners to set bails, judges would have to do it.  And I guarantee they won't be sitting in little rooms in local jails 24-hours per day,  365 days a year.  So we won't  need to hire lawyers to do that, either.

Instead, bail determinations will be held in open court, either with the defendants present or through remote video hook-up.   The Public Defender's Office is already funded for bail representation, and its lawyers will be readily available.  No economic nightmare, and better representation for defendants.

And this plan has so many other advantages.  Critics have long complained, with justification, that commissioners are not equipped to do what they are charged with doing. Determine probable cause?  They are not trained lawyers. Advise defendants of their rights to representation?  The Court of Appeals has ruled that the advice that commissioners give to defendants doesn't legally count. Advice only counts when judges give it.  So let them give it. 

The private defense bar should like this plan.  It gives them a more realistic opportunity to represent clients at an earlier stage.  And prosecutors can more easily and cost-effectively provide their input when bail-setting is done in open court.

The district court judges will finally earn their pay.  Right now they are very cozy in their part-time jobs as glorified magistrates with little meaningful work to do.  They review bails, advise defendants of rights, postpone cases, and put people on probation.  Instead of getting away early every day for shopping or golf, they can set the bails.  

And they will then have the direct responsibility for evaluating and improving Maryland's bail system, one that currently--and will continue under the Court of Appeals ruling--to discriminate against the poor.  The commissioners who currently set the bails have little, if any, guidance on how to do it, and bails are wildly inconsistent.  Judges only "review" bails that defendants can't post, and they use the commissioner's bails as a starting point to go up or down.  If they had to set the baseline, they would have powerful motivation to devise a thoughtful and rational system that protects public safety while ensuring equal treatment for the poor. Instead of ordering other people to protect the rights of the poor, they would have to do it.

Will commissioners have to lose their jobs?  Nope.  Instead of setting the bails, they can be very useful in gathering information that will assist the judges in their decisions, such as gathering criminal records and verifying personal information.  They could prepare lists of defendants who they recommend be released without posting bail, for judges to handle first and quickly.

What's the downside?  Well, although this plan will save millions, agencies will still project their costs in a vacuum and grab for money, as usual.  But judges and public attorneys working at the district court level are already underutilized.  If the new system strains their resources, let them prove it with statistics, bench hours, and especially an independent audit.  

More fundamentally, it would be totally premature to award anyone any money at the outset because we don't know what the system will look like.  Once the General Assembly shifts the burden of setting bail to the judges, the Court of Appeals will have to make new rules.  Lawmakers must resist the temptation to make the rules themselves. They will just make a new mess.  Let the judges of Court of Appeals clean up the mess they made. 

And if, while they figure out how to do that, defendants are committed to jail by commissioners without having representation, those judges can do what they would do to anyone else who failed to obey their orders: they can hold themselves in contempt.


Technical note for Maryland lawmakers:

1.  Amend Criminal Procedure 5-201 by adding a new (a)(1) that state: "Notwithstanding any other law or rule, only a judge of the District Court or a Circuit Court of Maryland may determine the conditions of pretrial release." Renumber the current (a)(1) to (a)(2) and eliminate the words "district court commissioner."

2.  Amend Courts & Judicial Proceedings to eliminate 2-607(2) and amend the language in (3).