Monday, December 13, 2010

The End of Bail, and a New Beginning

Our bail system is disconnected to its purpose. It neither ensures that persons accused of crimes show up in court nor protects the public from further criminal activity. It exists because, well, that's the way we've always done it. And by making liberty dependent upon financial resources, it discriminates against the poor.

So what do we do? Circuit Judge Brooke Murdoch, chair of Baltimore's Criminal Justice Coordinating Council, has convened a committee to look at the city's bail system. I don't know what its marching orders are, but I expect little to come from it. Committees that lack the power to actually do anything usually just tinker with the status quo. They don't foster radical rethinking.

I did hear that the bail committee won't be seeking new legislation, a wise decision. The profitable bail bond industry exercises a formidable influence on our elected politicians. According to one witness, Joe Vallario, Chair of the House Judiciary Committee actually apologized to bondsmen for wasting their time at a hearing on bill to close a licensing loophole. Vallario had no intention of letting even modest reform come to a vote.

Fortunately, we don't need politicians to fix the pre-trial release system. Change can be driven from within. And it needn't burden taxpayers the way that bail reform advocates like Doug Colbert of the University of Maryland law school would have it. Colbert thinks the public should (a)pay for defense attorneys to tell the commissioners to set lower bails, and (b)pay for prosecutors to tell commissioners to set lower bails. That's three people to do the job of one person already paid to set bails.

Commissioners work for the District judges. The judges train the commissioners in setting bail, and they set bail themselves. It's their job, and they should do it. But what is it that they should do?

First, end the pretense that the bail system does anything other than enrich bail bondsmen. No more bails.

Second, change the decision from how much bail should be set to can the accused be released pending trial. In the majority of cases the answer should be yes, though it can't reflect a simplistic criteria, such as whether the alleged crime is violent or not. A person may commit a non-violent act but pose a serious danger. A person may be accused of a violent act but can still be released.

Those we are now willing to release on reasonable bails would (for the most part) continue to be released, only without having to post a financial bail. The risk to public safety remains the same. Likewise, the population of those who get "no bail" would mostly stay the same as well.

The real issue for commissioners and judges would be those persons who now get high bails or who should otherwise be perceived as high risk. And therein lies the opportunity for a new beginning. For the same considerations that go into pre-trial release decisions would go into prosecution, sentencing, probation violations and parole. By articulating who we need to focus upon we could have a rational, explainable, justifiable criminal justice system from top to bottom, not one that exists because, well, we just do it this way.

I can think of a million issues that would need addressing. If a released person fails to appear in court or is re-arrested, he should be held no bail the second time. Accused persons are now frequently released multiple times, which rightfully frustrates citizens. One bite at the apple would be fair to rich, poor, and the public.

A new pre-trial release system should bring with it an arraignment court in the District Court to reduce the number of unnecessary appearances by victims and witnesses. Citizens should not be able to obtain warrants against other citizens like they do now without prosecutor review. The State's Attorney's central booking division, reduced to a skeleton crew under Jessamy, must restock and refocus. Alternatives to pre-trial detention like curfews, reporting requirements, home monitoring, and stay away orders need shared information, better technology and police involvement to make them effective, not the joke they are now. Simplified fingerprinting should be available to police on the street to allow citations rather than arrests. And there is so much more.

These terms and concepts will mean more to criminal justice professionals than they do to the public. My point is that there's much work to do and many details to consider and address. We should not plunge into a new system, and we should measure what we are doing along the way, something the criminal justice system does so poorly now.

But it can be done. What it needs is visionary, energetic and sustained leadership. Leadership that thoroughly understands the current system and doesn't think it can just impose a 'good idea' (a la one former Mayor Martin O'Malley, who knew just enough to make him arrogantly confident in his ideas but little enough that they failed.)

That leadership must come from the the State's Attorney's Office, the agency that decides who to prosecute. It must take the lead in focusing criminal justice efforts on those who most pose a threat to public safety. That decision starts with pre-trial release and detention, and continues on throughout the entire criminal justice system.

In a few weeks, Baltimore will have a new state's attorney, Gregg Bernstein, who has promised change. There's so much he can do. He's our chance for a new beginning.

Monday, November 15, 2010

Of Bail and Bondsmen

In my favorite Robert DeNiro movie,
Midnight Run, DeNiro plays a bounty hunter attempting to bring a bail jumper from New York to L.A. for trial.

Entertaining but fanciful in many aspects, the movie embodies popular conceptions about the bail system: get arrested, pay a bail bondsman to get out of jail, have the bondsman come after you if you skip out.

It sounds very efficient, maybe even fair. But Maryland's bail system serves neither efficiency nor fairness. It exists primarily to make profits for bail bondsmen.

The bail system involves two distinct components: the practice of requiring bail as a condition of release before trial, and the bail bonds industry. Since persons charged with crimes are presumed innocent, allowing them to be free pending trial is consistent with that presumption. Bail functions as an incentive for defendants who are set free to show up for trial. They put up something of value that they get back when they come to court.

But it's easy to see that requiring bail discriminates against those without cash or property to post as collateral. Liberty before trial depends on sufficient wealth to post bail. That is, or ought to be, offensive to American sensibilities.

So into that breach stepped the American genius for making profits. For a fee, usually a small percentage of the required bail, private companies will post a "bond," a written guarantee to pay the bail if the accused person fails to show up in court.

As the New York Times pointed out
in a 2008 article, the United States and the Philippines are the only two countries that give private enterprise a central role in their pre-trial release systems. And the bail bonds system has been, according to the Times, condemned by the American Bar Association and the National District Attorneys Association, not to mention outlawed in four states. But it has a firm foothold in Maryland.

What do bondsmen accomplish? Well, they allow more people of lesser means to get out of jail. But while they lessen the inherent discrimination of the bail system, they do not eliminate it. If bondsmen won't take a bail, or if the accused cannot afford even a small fee, the accused still stays in jail.
And bondsmen take money from people who can least afford it and can't get it back. Under a true bail system, bail is an incentive to show up for trial. Under the bail bonds system, bail becomes a penalty for being arrested.

Bondsman will claim that they bear the risk of defendants who don't appear for court and the cost of tracking them down. But in reality the bondsman's risk is low. If a defendant skips court, a judge will issue an order "forfeiting" the bail, which triggers the right of the local prosecutor to take the bondsman to court and enforce his promise to pay.
But in Maryland bondsmen can have the forfeiture "stricken" when the defendant is arrested. It doesn't matter what he is arrested for or whether the case is no longer feasible thanks to the delay in the trial. As long as the defendant is returned to custody for any reason the bondsman is released from responsibility.

Midnight Run, not only was DeNiro looking for the bail jumper but so was the FBI. A Maryland bondsman would have just let the FBI do their work, because unlike the premise of the movie, no 5-day deadline exists that would cause the bondsman to lose his money.

The bail bonds system, in theory, transfers from government to private industry the decision of risk and the burden of capture. I can imagine a time, say in the old West, when perhaps this made sense. In the absence of photos and fingerprints, not to mention social security numbers, and without a professional and ubiquitous law enforcement system, bondsman might really have performed a function that the state could not have done as well.

But not anymore. With technology, information systems, and modern police forces, bondsmen can just wait for police to find or happen upon their no-shows for them.
And while bondsmen can get more poor people out of jail, they gouge them with non-refundable fees. It's still a system of greater liberty and justice for the well-to-do.

The Times article states, without providing evidence, that the bail bonds industry "is remarkably effective at what it does." The evidence, of course, is critical to that claim. But more fundamentally, what does the industry do? It decides that some persons are worthy risks for release. And makes a profit on its judgment.

The state is already supposed to decide that risk. It serves neither logic nor justice to have a bondsman make a second judgment for profit. Unfortunately, the state makes bail decisions
inconsistently and badly, fueling the perceived need for bail bond companies.

I'll talk about those bail decisions next time.

Tuesday, November 2, 2010

Accountability in the Bail System

Now Peter Hermann's on the right track.

At least that's what I thought when I began to read his article in the Sun last Sunday. He described three young people from Canada arrested for misdemeanor theft in Baltimore, one of whom got a bail of $1,000 and the other two bails of $175,000. Here was a good example of injustice in the bail system that needs addressing.

But my enthusiasm waned when Hermann used the case to beat the drum again for taxpayer-paid lawyers at commissioner hearings as the solution. (At least that's what he appeared to do. Allowing journalists to drift back and forth between reportage and opinion pieces, like Hermann does, makes it hard to discern their perspective sometimes.)

Hermann cited, once again, those who want taxpayers to pay for lawyers to tell commissioners what they should do (which will always be to release defendants.)

How about we just get well-trained commissioners?

Commissioners are supposed to see defendants within 24 hours of their arrest primarily to determine whether they can be released from jail pending their court date. They can release them on their promise to come to court, which happens for just under half of those arrested in Maryland. They can require a defendant to post some form of bail. And there are some defendants that commissioners cannot release by law, such as those charged with first degree murder. (Only judges can release those defendants.)

If a commissioner sets a bail and the defendant does not post it within 24 hours, judges are supposed to review the bail at the next session of the court. But over a weekend, defendants can wait 2-4 days for a judicial review, so the initial bails are very important to defendants. And likewise, a commissioner can let a dangerous offender out before a judge ever sees the case, so initial bails are important to public safety, too.

As the Hermann piece makes clear, commissioners can set wildly divergent bails for similar crimes and similar past records of defendants, and they can set excessive bails. They also can set grossly inadequate bails for dangerous offenders, a side of the issue Hermann fails to mention.

Why do they do this? Because like most of the rest of the criminal justice system, commissioners have little real idea how to identify and evaluate risk factors. They are allowed to pull numbers out of a hat. And that's not their fault. They work for the judiciary, which is responsible for training them and monitoring what they do. Judges lack a consistent process for setting bails, too.

Setting bails is only one part of a commissioner's job. Taking bails is another, also important to defendants getting out of jail. And if my personal experience with the bail process is any indication, the judiciary may have problem areas there as well.

I happened to bail out an acquaintance of mine this past summer. I went down to Central Booking with my Mastercard, only to be told they only took Visa. I went home, retrieved my Visa, and this time was told by another commissioner that they only took Mastercard. Fortunately I still had it with me, but they used some convoluted telephone process that didn't work. I was forced to go out and find cash in the evening, and since the bail was more than my ATM limit, had to find my acquaintance's daughter to help.

When the daughter and I returned with our combined ATM cash the commissioner would not give change for $760, insisting upon the exact amount of the $750. We got change from a jail employee, sparing us from going out in an unsafe neighborhood in the dark with that cash. We finally posted the bail after a multi-hour ordeal.

But my acquaintance was not released that evening. Instead, she spent an extra 17 hours in the detention center. When she arrived there from Central Booking the toilet paper had already been handed out, so she got none. Jail officials turned off the water in her section all morning for repairs, so none of the 3 toilets for 35 women were flushed of any waste. Officers filled a large garbage can with water for both drinking and washing for the inmates. A correctional officer kept referring to the women as "bitches." A large young woman attacked a skinny old one without interference from staff. I could go on.

I called the next morning when I found out that my acquaintance was still in jail and was told that they didn't release anyone between midnight and 8 a.m. When I investigated on what authority the jail could hold someone who had been bailed, I was eventually told (over a month later) that this had been going on for three months but the problem was now fixed thanks to my e-mails to Public Safety.

But that wasn't even why she wasn't released, because we had posted her bail at 7 p.m. It turned out that
the commissioner--who was handling a personal call during the whole bail transaction--failed to turn the paperwork in to the jail staff.

A lawyer for the defendant wouldn't have gotten my acquaintance out any faster than I did. Heck, I am a lawyer and she was held in jail. No, sometimes it just comes down to plain old human competence, caring, supervision, training and accountability. That's the first thing we need to fix the bail process.

The second is a coherent, consistent philosophy of who should be released pending trial and by what mechanism. We don't have such a philosophy, and the mechanism that's now in place stinks.

More on that to come.

Tuesday, October 26, 2010

Bad judge, Bad bail review..and then there's Prevas

Reporter Justin Fenton was attending the bail review of a high-profile case when he caught the bail review of one William Campbell. And from that we get a column from Peter Hermann about the unfairness of the bail review system.

Hermann had something good to write about, but it wasn't about the unfairness of the bail review

Hermann (and Fenton in his blog) describe a bail review where a defendant had his bail amount tripled when he tried to represent himself. Cue Doug Colbert, the law professor who thinks Marylanders should pay for lawyers for all arrested persons before a bail commissioner. And of course, Colbert tells Hermann that a lawyer would have made all the difference.

Except that in Baltimore a lawyer was already supposed to be representing Campbell. Under a funding agreement with the state, the public defender's office represents jailed defendants who don't post their initial bails and appear before a judge to review those bails. Hermann and Fenton don't tell us why the assistant public defender in court that day didn't speak for Campbell.

Did Campbell refuse public defender representation, as some defendants do? Did he fail to cooperate? Did jail officers deny access to a lawyer? Did the public defender's office screw up? Without this piece of the story, we can't draw any conclusions about what difference "the right to a lawyer" made or could have made for Campbell.
The reporters also don't give us enough facts about Campbell's background and charges to suggest he could have gotten his bail lowered enough to make it. [Subsequent to my original post, I found out more about Campbell. See More to the Story, below.]

Lacking all the facts, this isn't a story about a defendant railroaded by a speeding locomotive of a bail review system, as Hermann tells it. It's really a story about a bad judge.

When a private lawyer predicted to Fenton that Judge Charles Chiapparelli would raise Campbell's bail to "no bail" after Campbell raised "a fuss", it meant that he had seen Chiapparelli in action before. Chiapparelli has a mean little streak, and it comes out when defendants interfere with his first purpose in court: to get out of there as soon as possible.

I mentioned Chiapparelli in The Greatest Part-time Job in the World, Part I racing through his docket so he could leave for the day at 12:15. I left out a little scene I witnessed that's relevant to tell now. A man pleaded not guilty to the charges of driving through a stop sign and failing to yield the right of way. After the police officer gave her side of the story, the man testified that he stopped for the sign but because it was set so far back he only looked like he ran it. He then started to explain his failure to yield but Chiapparelli cut him off, finding him not guilty of the stop sign violation, guilty of failing to yield, and giving him probation before judgment (which meant no points on his driving record.)

The man protested that he hadn't had a chance to speak about the second charge. An angry Chiapparelli ordered the court clerk to look up the man's driving record (which he didn't do for anyone else) and ranted about the ungrateful man's attitude. Message to everyone else in courtroom: shut up.

Chiapparelli's explanation to Hermann for raising Campbell's bail was that if a defendant talks then he looks "more closely at the facts in the case." Apparently it wasn't important to look closely at them at the beginning of bail review, when the defendant's liberty and public safety should have been just as much a concern. Chiapparelli doesn't have time for defendants who want to talk. It's next case, next case, then he's outta there.

A couple of more points about the Hermann/Fenton pieces:

1. Judge Alfred Nance did not rule that "Maryland's anachronistic system that emphasizes speed over fairness needs reform." Please. This is interpretative license taken way too far. Nance ruled that defendants have a right to a lawyer at a hearing where a commissioner sets an initial bail (based on his questionable interpretation of a Supreme Court case.)

2. Fenton wrote that "a pretrial services official and the prosecutor got to talk about what bail should be set for Campbell" before Judge Chiapparelli increased the bail without hearing from Campbell. Some could take this to mean that defendants are routinely railroaded.

The pretrial services official is a neutral party charged with investigating the defendant's ties to the community and making recommendations to city judges about whether to release defendants. And prosecutors speak at a minority of bail reviews in the city (and rarely in the rest of the state.) They are funded by War Room funds to focus on violent offenders. Only occasionally will a prosecutor appear without a defense attorney because the public defender is supposed to represent city defendants. It is far more often the other way around.

I don't oppose lawyers at bail reviews, by the way (which is different from lawyers at the time bails are set by commissioners) so long as the public defender's office doesn't get a zillion more dollars to staff bail reviews. They already are under-employed in the district offices and can spare the time. I think they can make a difference for some defendants who can be safely released after further reflection and investigation. I just don't think the Campbell incident makes the case, though I'm glad to see Judge Chiapparelli exposed.

I promised to offer my own views on what reforms are needed for the bail system. I hope to start on that next time.


Judge John N. Prevas

In striking contrast to lazy judges like Chiapparelli, there was Baltimore Circuit Court Judge John N. Prevas, a man passionately dedicated to the law, to justice, and to his job. While controversial at times due mainly to his manner, Prevas could never be criticized for his work ethic and devotion to making legally correct decisions. In poor health for many years, Prevas refused to retire, continuing to judge through considerable pain.

Judge Prevas died yesterday, with his boots on. He will be missed.


More to the Story

Subsequent to my original posting, I obtained this statement of charges against Campbell:

[Police officer responds for a domestic assault call.] Upon arrival, I observed a black female...crying in the living room...[She] advised me that her boyfriend assaulted her by pushing her around and choking her while in the top floor bedroom. [She] also advised me that herself and her boyfriend were having a dispute. Her boyfriend started to push her around the bedroom. [The victim] landed on her bed and her boyfriend got on top of her and began choking her with both of his hands around her neck. [She] could not breathe and began to get light-headed as a result of being choked. [Her] ten-year-old daughter walked into the bedroom and observed the suspect assaulting her mother. An anonymous neighbor also came into [the house] as a result of hearing screaming. The suspect let go of [the victim] after hearing the anonymous [neighbor] inside the dwelling yelling for the victim. [The daughter] called 911...

Once I entered the location, I located the suspect in the top level hallway. After ordering him downstairs, same gave me a name of Michael Smith...Further investigation revealed his that the suspect's name is Willliam Campbell...I observed numerous bruises and scratches around the neck and chest areas of the victim...
So Campbell allegedly assaulted his girlfriend by strangulation in front of her daughter. He gave a phony name to the police officer. He has two prior convictions for assault, violating probation in one of them. He had prior charges for armed robbery dismissed, and was recently acquitted of illegal possession of handgun.

No wonder his bail was raised. Too bad Chiapparelli only read the facts when Campbell spoke up. Rather than creating a call for bail reform, he might have allowed Campbell back on the street where he could further harm the victim, leading to a call for domestic violence reform.

Friday, October 15, 2010

The Price of Enlightenment

This week's cover story in the City Paper is a must-read for anyone interested in how vicious predators can continue to prey on citizens even though they've been caught. Written by Hal Riedl, a frequent commentator on this blog, it details the journey of a sexual predator and murderer through a criminal justice system that just doesn't get it.

I first met Riedl in 1998 after I had filed to run against the "Nine Trusted Judges" of Baltimore's Circuit Court who were standing for election. Riedl called me, introduced himself, and explained that he worked for the Department of Public Safety, from which vantage point he could see how judges were sentencing criminals. As we talked, it became eerily clear that his top three "least-trusted' judges were the same top three on my list, though our reasons and perspectives were different.

Riedl tried to help my underdog, unsuccessful campaign as judicial candidate, just as he worked hard for state's attorney candidate Gregg Bernstein. He puts his money where his mouth is.

And on
his own professional front, he constantly advocated for more appropriate handling of violent criminals. He saw not only what judges did with sentences and probation violations, but how hearing officers handled prison violations and parole commissioners parole and revocation hearings. He understood the significance of criminal backgrounds when others didn't or didn't care.

He became a gadfly to his employers. And this year, before writing his article Freeing Willie, Riedl was fired.

The excuse? He had sent an e-mail to Peter Hermann of the Sun regarding a prisoner that corrections officials mistakenly released after he impersonated another inmate. It hit the media last winter, and Riedl provided some factual details to Hermann about the release along with his interpretation of those facts, namely, that they "point glaringly to our stupidity in DOC" and that the release was due to "gross monumental incompetence."

Hermann, this year's "Best Journalist'" (along with Justin Fenton) in the City Paper's Best of Baltimore edition, then inquired about it with Public Safety officials with enough lack of delicacy that they instantly delved into Riedl's e-mail and fingered him.

And despite Riedl's clear First Amendment rights to speak on an issue of public importance, Secretary Gary Maynard fired Riedl. First Amendment rights apply only to those who can pay a lawyer to protect them.

Some will now perceive Riedl as a 'disgruntled' employee, even though Maynard was the disgruntled one. And others will view him with suspicion because he spoke out, because he didn't protect his own interests first like most of the rest of us do.

But Riedl is the kind of guy the public needs to shed light on how their government operates. And even though Maynard took away Riedl's livelihood, he did the rest of us a favor.

Because Riedl can now speak freely. And now we know about Willie Featherstone, and our monumentally incompetent system.

Saturday, October 9, 2010

The Non-Fix to the Bail System

How would the citizens of Maryland like to pay the many millions it would cost to provide a lawyer for every single person arrested throughout the state?

That's the prospect created by Baltimore Circuit Judge Alfred Nance's decision last week in Richmond v. District Court, in which he ruled that the poor are entitled to a lawyer at their first appearance before a bail commissioner after arrest. While the decision in theory applies to the poor, in reality the state would have to make lawyers available 24 hours a day, 365 days a year throughout the state at every commissioner hearing.

In reversing a decision he first made in 2007, Nance relied upon a 2008 Supreme Court case that arose out of Texas. A defendant arrested for a handgun offense was taken to a magistrate (the Texas version of a commissioner) where he was told of the charges against him and given a bail. He posted the bail but was denied an attorney because he wasn't in jail and prosecutors hadn't yet decided whether to pursue the case.

The justices held that his appearance before the magistrate made the defendant eligible to have an attorney appointed for him to handle his case. They did not rule
that he had the right to an attorney at the hearing itself. (Much like turning 16 makes one eligible for a driver's license but doesn't award the license on the 16th birthday.) Maryland already offers free attorneys to poor defendants who are released after seeing a commissioner.

Nance is known more for inappropriate conduct towards female attorneys and rude, boorish behavior towards persons in his courtroom than for his legal acumen. In any event, his decision will be appealed, and whoever loses before the state Court of Appeals will probably appeal to the U.S. Supreme Court, so the final decision will take awhile.

As I pointed out in
Lots of Money, Little Justice, appointing lawyers to represent defendants before bail commissioners would bring enormous cost to taxpayers while providing little benefit in return. 46% of defendants already are released statewide without posting any bail (and 47% in Baltimore.) Adding lawyers would slow the commissioner process down significantly and hold people in jail longer without appreciably changing the results.

The driving force behind the Richmond v. District Court lawsuit is Doug Colbert, a law professor specializing in bail issues. Colbert's a darling of radio talk show host Marc Steiner and is frequently published in the Baltimore Sun, but his credibility within the criminal justice system suffers from the fact that he obscures and omits facts that are inconvenient to his point of view. He also merges two distinct issues in his advocacy: the unfair impact of the bail system upon the poor, and his belief that more people should be released before trial regardless of their economic status.

For example, in the Richmond case he presented all his clients as being inappropriately incarcerated, failing to mention when they had failed to appear for their trial, had committed more crimes while waiting for trial, or really weren't poor and unable to make bail. To Colbert, these facts aren't relevant and are harmful to his argument, so he leaves them out.

And his solution is to throw public money at the bail system by adding another layer to the process. Actually, Colbert suggests two 'reforms': give every arrested person a lawyer at the bail hearing, and have prosecutors recommend the release of defendants. In other words, let's spend millions and millions of dollars to hire extra defense attorneys and prosecutors around the clock throughout the state of Maryland to do what bail commissioners are already paid to do.

I will give Colbert this: he has called attention to the fact that our bail system does need reform. While he undermines his cause and credibility with misleading descriptions of his clients, dubious claims about cost-savings, and expensive, unproven solutions, he's right that something needs to be done.

And it won't cost a thing, except the willingness to dispense with the status quo. I'll expand on this in my next blog on the bail system.

Monday, September 27, 2010

Reflections on the Election

Anyone who has followed my blog knows how I feel about the change in the Baltimore state's attorney's office that's coming this January.

But I
was glad to see the compliments bestowed upon the defeated incumbent, Pat Jessamy, after the voters pronounced their verdict. As sharply and persistently critical as I have been of her professional performance, I have always respected her personally. Never did I question her commitment to public service. Never did I see her personal or political concerns influence an individual case.

I remember one time when a city prosecutor was arrested for disorderly conduct. I called Jessamy late at night to tell her about the arrest and to discuss how to charge the case. She asked what I wanted to do, and I told her that to be consistent with our charging practices I would decline to charge the case because there was little point to prosecution. (The prosecutor was drunk and interfering with police and gave them no choice but to arrest her. A classic "abated by arrest" scenario.) However, I said, perhaps Jessamy would be concerned about public perception.

Immediately she said that she would not want to treat the prosecutor differently than any other member of the public. That was always my personal experience with Jessamy, making the case decision she thought was best whatever the consequences.

Her downfall came with the people she surrounded herself with, yes-people chosen for their personal loyalty rather than for competence and ability. In particular, she gave unfettered authority to Margaret T. Burns, the most disingenuous and divisive person I have ever met in my professional life.

Burns provided the public a small glimpse of her style in the Zach Sowers case, when she tried to undermine the widow of a murder victim who had criticized the handling of the case. Burns suggested that the victim hadn't been murdered after all, and that the widow had blocked the truth by refusing an autopsy. Had Jessamy been wise enough to repudiate Burns for these ridiculous, even malicious comments she probably would still be state's attorney. Instead she hitched her wagon to Burns and went down to defeat.

It's time now to look to the future, and I see a new energy and creativity coming for the prosecutor's office. Bernstein has a huge challenge before him, facing a culture
that's entrenched not just among prosecutors but throughout the criminal justice system. But he had the guts to take on an incumbent that no one gave him a chance to beat, so I have to like his chances.

One thing that shouldn't take too long to improve will be the police-prosecutor partnership. Reading Peter Hermann's opinion piece on Sunday, one would think the problem's been a wide philosophical divide that needs to be bridged. He writes, for example:

"And sorry, it's not the bickering that causes the suffering [for city residents], as a colleague has repeatedly and rightfully pointed out to me. The bickering is a result of what has been a fundamental difference in how Jessamy and various top officers and mayors have wanted to police and protect the city."

Sorry, it is the bickering that caused the suffering. The bickering reflected a refusal to work together, first by O'Malley excluding Jessamy from formulating his crime strategy, then by Jessamy for rejecting every idea emanating from the police while failing to offer her own concrete plan. Had they been talking, they even could have come to consensus on "zero-tolerance", finding better ways to accomplish the intended purpose. It wasn't a philosophical divide between police and prosecutors, it was plain old personal in-fighting. I was there. I saw it.

Besides, once O'Malley left for Annapolis Jessamy did come on board the Gunstat program (while Burns continued to sling arrows, albeit more subtly.) There was no divide on the philosophy of fighting guns and violence. The dispute boiled down to mutual effectiveness and ineffectiveness, and who to blame.

So there shouldn't be far to go to form a working partnership now. That won't make Bernstein a "rubber stamp" for police. It just means that they can talk and work out differences professionally and in the best interest of the public.

And one false issue raised by the campaign rhetoric was the idea that one must choose between treatment and prevention programs and locking up criminals. Not so.

Bernstein can and should keep staff assigned to alternative, problem solving programs such as Drug Treatment Court, Mental Health Court, and prostitution diverson. These programs handle those whose behavior may be treatable and preventable, and they do good work. Bernstein doesn't need to divert resources from these programs, he just needs to work smarter and more effectively at prosecuting the violent criminals. He must tap into the strategical resources available to better target those criminals. He already brings the trial expertise needed to make more charges stick.

January can't come soon enough. In the meantime, I will be writing this fall about aspects of the criminal justice system that the Maryland General Assembly should address when it convenes, also in January. And no doubt won't.

Friday, September 10, 2010

TIme for Change

So voting time has come.

Just a little over two months ago I didn't expect the city to be in this position. Whatever happens, the city owes Gregg Bernstein its gratitude for opening up debate and offering a real choice on such a crucial office as State's Attorney. The campaign forced Jessamy to respond to issues in a very illuminating way, confirming much of what insiders have known for a long time.

Sheryl Lansey filed to run for State's Attorney, too, and I heard her speak at the University of Baltimore debate. She's a mature, educated, thoughtful, woman, but the more she spoke the more it was obvious that she couldn't begin to run the State's Attorney's office. It would be like me applying for school superintendent. I may have my opinions on education, but that doesn't qualify me to run the schools.

But Bernstein, he's another story. He's intimately familiar with the issues and challenges, he's a top trial attorney, and when he talks it's obvious to those inside the system that he knows his stuff. How effective will he be at accomplishing his goals? Well, we always take a chance on that when we elect someone. But we have Pat Jessamy's actual record to tell us that it's time to try someone new.

So here's my summary of the reasons for change:

1. Jessamy exhibits a personal lack of trial skill and judgment. A prosecutor who thinks she has to subject the victim of a robbery to cross-examination at a preliminary hearing, even when she has a videotape of the robbery, is clueless. A prosecutor who pursues an announced policy of not prosecuting single witness cases, instead of evaluating each case individually, is likewise clueless.
Not to mention dangerous to public safety.

2. Jessamy rejects accountability. In her own words: "I don't do conviction rates..." "I don't accept blame." She cannot even say what she could do better. All of us can do better, but not Jessamy.

3. Jessamy ignored her own, state-funded program to focus attention on repeat violent offenders, the War Room. She can't tell us what happened to the cases of those offenders. She contends that to do so would be "smoke and mirrors."

4. Jessamy fights with the police through her spokesperson, Margaret T. Burns. Burns takes pathological delight in torturing the police by tossing all blame their way. Jessamy expressed surprise, which stuck me as genuine, that Police Commissioner Fred Bealefeld supports Bernstein. Another sign of how clueless and insulated Jessamy is from what happens in her office.

5. If Jessamy is re-elected, the blame game and tension will become even more unbearable, as Burns will exact revenge. She loves that stuff, I've seen it first hand. And maybe the best police commissioner we've had in a while will retire to find a less thankless job.

Jessamy pretends that her conflicts with the police are about protecting citizens from police. Ironically,
if she worked with the police she could be much more effective at reigning in bad practices than she is now. Ultimately, however, the State's Attorney has no power to protect citizens from police, other than to prosecute bad cops (something Jessamy can boast little success at doing.) Her conflicts are really about excusing her own failings.

6. Jessamy raised images of the pre-civil rights 1950s, essentially asking black voters to vote for her because she is black. (And we, black and white, don't need any commentators or professors to interpret for us what she was doing. It was clear.)

Jessamy and the even more overt Frank Conaway ("They are trying to steal a seat from us") are attempting to inject fear that black voters would lose all power if a white person comes to office. The power isn't in the office, it's in the vote. City residents, who are predominately African American, voted in white O'Malley for mayor, then black Dixon and Rawlings-Blake. Their power didn't go anywhere. And if Bernstein fails them, they can kick him out.

Candidates like Jessamy and Conaway are phonies. It isn't about racial pride. It's about keeping their own butts in office.
Jessamy's act is old and undistinguished, and the most she can offer now is racial fear. If her record supported her re-election, she wouldn't even have needed to go there.

For all these reasons, its time for change. It's time for Gregg Bernstein.

Tuesday, September 7, 2010

The Sun and Pat Jessamy

The Sun accused Gregg Bernstein Tuesday of "unethically" stealing its "credibility." Apparently some Bernstein campaign materials cited "The Baltimore Sun" as the source of a campaign claim without clarifying that the information came from a Sun columnist, not from the Sun's editors or reporters.

I almost had to laugh. For years the Sun has received unethically leaked charging documents from State's Attorney Pat Jessamy. But it never reported on her unethical behavior because it was the beneficiary.

As for credibility, this is a newspaper that knows that Jessamy's press aide, Margaret Burns, is ethically challenged. It also knows that she has fed them stories for years to make the police look bad. But it's done nothing to enlighten the public about it, making it a bit ironic for the Sun to complain about stolen credibility. It can't be stolen unless one has it.

But originally I had planned to revisit a previous editorial suggesting that it wasn't quite fair for Bernstein to focus on Jessamy's conviction rate because "police, judges, witnesses and juries (not to mention the caseload, budget and other resources provided to the prosecutor's officer) bear some of the blame..."

I wonder how the editors feel now knowing that Jessamy doesn't "accept blame" at all. Or that she believes conviction rates are "smoke and mirrors" and she doesn't "do" them. Or that she can't tell us what happened to the repeat violent offenders in the War Room program.

They know these things now because Gregg Bernstein challenged Jessamy and forced her into the public eye. Because she said these things in response to campaign questions on radio shows and in debates and can't hide behind the spin of Burns. Statements the Sun has still not reported on.

The campaign was never about whether Jessamy deserved
all of the blame for an ineffective criminal justice system, but about whether she could be doing a better job as state's attorney. It's quite clear from her own words that she is not and never plans to be accountable for her own performance.

But I submit that Jessamy is more to blame than anyone else for the current state of our criminal justice system for two reasons.

First she managed the War Room, which showed her how multiple agencies pursuing their narrow, independent missions failed to identify dangerous criminals and released them repeatedly to the street. When I as the War Room supervisor wrote a comprehensive report in 2004 about this she suppressed it, submitting a vanilla version to the Legislature instead. She assured me that she would handle the issues out of the public eye.

But she never did. She never approached either her own staff or any other agency with War Room data and recommendations.

And so I wrote in a 2007 report: "What the War Room has observed over the past three years is that the culture that led to the need for a War Room has not changed much over the years. The system continues to fail to 'focus' upon offenders that are responsible for violence...The 'war' on violent crime needs to come out of a 'room' and into a way of thinking and acting."

Here's what Burns/Jessamy wrote for the Legislature instead: Over the past three-years [sic], a very capable team of law enforcement and corrections partners have established a coordinated effort to meet these original goals, and it appears their efforts have complimented [sic] the criminal justice partnerships and vision to reduce violent crime in Baltimore and make our community safe through the addition of the War Room project...The War Room is a criminal justice success story..."

An incoherent report (and blatant lie) never challenged or questioned in any way by the Sun, by other news media, by legislators, or by others inside the criminal justice system, before or after I left the prosecutor's office. And Jessamy put my name on it. Talk about stealing credibility.

The murder of off-duty police officer Troy Chesley is just one example of how Jessamy's failure to do anything to effect change led to tragedy. Chesley's murderer was on bail for two separate handgun offenses at the time of the murder. Jessamy had never gone to the District Court judges to discuss War Room bail recommendations. Nor had she ever made her own staff seek bail revocations when violent offenders on bail committed another crime.

The robbery case of John Wagner, who is now accused of murdering Stephen Pitcairn, is another example I've discussed before. Jessamy failed miserably to take basic steps to proceed with a very winnable case against a War Room offender, blaming the police and the victim in a reprehensible way to escape any accountability. She also made sure to point the finger at the probation judge, though again she had never gone to the judiciary to discuss War Room offenders and probation proceedings.

The second reason Jessamy deserves more of the blame is because she has actively undercut her law enforcement "partner," the police department. Some examples include:
  • Spreading the false notion that all arrests for which prosecutors declined to issue charges are "illegal." See The Lie That Won't Die.
  • Planting a story with TV stations that the police were not solving enough homicide cases.
  • Feeding statistics to the Sun and successfully urging it to characterize the police citation program as a failure. The police wanted to write more citations and make fewer arrests to keep people out of jail and police on the streets. Instead of helping to accomplish this worthy goal Jessamy tried to undermine the program.
  • Criticizing a police plan to take fingerprints from offenders on the street. Police hoped to write more citations by enabling positive identifications. Without it, offenders could use a phony name, fail to appear for court, and have the wrong person arrested for it.
  • Tracking the results of cases in which surveillance cameras were used solely for the purpose of arguing that the cameras were a waste of money, even before the program got going.
And this doesn't even count the many times she has blamed poor police investigations for not being able to prosecute, even when, as with John Wagner, the police didn't do anything wrong.

So we have a prosecutor who never formed working partnerships with other criminal justice agencies to address War Room offenders and who has actively worked against the police department when it tries to improve law enforcement techniques. She has used the police and judges to explain her own failures.

And through it all the Sun has remained silent and reported Jessamy's spin.

The Sun can't shift this to witnesses, judges, juries, police or lack of resources. It's all on Jessamy, whether she "accepts" it or not.

Wednesday, September 1, 2010

In Her Own Words

"I don't do conviction rates because I think conviction rates are smoke and mirrors."
Patricia Jessamy, State's Attorney for Baltimore City, 8/30/10

I didn't think Jessamy's appearance on the Marc Steiner Show was going to reveal anything new or interesting, especially when Anthony McCarthy, the co-host, lobbed softballs for her to hit.

He recounted, for example, how the citizens of Charles Village gathered after the murder of Stephen Pitcairn and clamored to hear from Jessamy. I thought he was going to ask why she declined to speak to them. Instead, he wanted to know why they put everything "on [her] shoulders." When he asked about her relationship with the police, it was to find out how the police could be trained to bring her better cases. You get the picture.

But Steiner wouldn't let Jessamy off the hook so easy. When he persisted about her inability to get along with police commissioners she blamed the media for creating that perception, which fit perfectly with a statement she made in another context: "I don't accept blame." She never does.

But it was near the end of the interview that Steiner exposed the essence of Jessamy, her failure to be accountable when it comes to violent criminals. He said he wanted to ask Jessamy a question she had "never answered" namely, what happened to the War Room offenders, the "worst of the worst."

"I don't do conviction rates because I think conviction rates are smoke and mirrors."

Oh, my goodness. Prosecutors charge cases when they believe the evidence shows that a defendant is guilty, and then their job is to convict. It's a fundamental measuring stick of their performance.

Not that conviction rates tell the whole story. For example, I would view with suspicion a prosecutor that boasts a 100% conviction rate since it suggests that he or she will only try slam dunk cases, not those with reluctant witnesses or other obstacles.

But Jessamy doesn't "do" conviction rates at all, meaning she doesn't have to explain anything to anyone. Instead she created a novel, fanciful theory of measuring her success: what percentage of those committed to prison come from Baltimore.

Jessamy trotted this out for the first time in her WYPR debate with Gregg Bernstein, her main challenger. It's her story and she's sticking to it. She told Steiner that 31% of charged cases in Maryland come from Baltimore but 60% of the prison commitments come from there. Therefore Baltimore criminals go to prison twice as much as other citizens for serious offenses, giving her the highest conviction rate in the state.

Talk about smoke and mirrors. Her statistics don't account for the fact that she drops 20-25% of cases before they are charged, something other counties can't do because they don't have prosecutors in a central booking facility like Baltimore's. And that those cases are the minor kind for which people don't go to prison.

And she tells us nothing about the type of crime and rate of crime in each county, or how Baltimore's unique rate of violent crime rate skews the percentages. It boggles the mind to hear her rely on prison percentages, especially when she has her own statistics right in front of her.

But that, of course, is her Achilles heel. For years she ignored the War Room and its mission to focus on violent offenders, and now she's stuck with its sorry conviction rate. And Bernstein cites her own reports to support his claim that in 2010 she convicted only a third of those she charged with illegal gun crimes.

So Jessamy is running as fast as she can from her conviction rates, using the smoke and mirrors of prison percentages. When did we ever hear her tout them before? Not until someone exposed her performance.

She made other interesting claims during the Steiner Show.
Like how she invented the federal Exile program, and how she changed the national focus of prosecutors from drug interdiction to violence. Jessamy deserves about as much credit for these claims as Al Gore does for inventing the internet.

She claimed she knew how to try cases and didn't need to "grandstand" by doing it now. But Jessamy never prosecuted violent offenders. She was first hired in Baltimore to handle white collar fraud cases, and after just a few years doing that became the deputy state's attorney in charge of administration, then State's Attorney. She hasn't tried a case for 22 years, but claimed she advises prosecutors about courtroom matters.

I never saw her do it, but perhaps things have changed in the 32 months since I retired from her office. Perhaps she gave courtroom advice to the prosecutor who dropped the John Wagner robbery case, leaving Wagner free to murder a young Hopkins researcher in a subsequent robbery. She certainly stands by it, insisting to a caller that the victim had to testify under oath at a preliminary hearing for her to proceed with the case. When any other competent prosecutor would have done everything possible to avoid the victim's testimony at the hearing.

And finally, when asked if there was anything that she could have done better, Jessamy resorted to her old lack-of-resources complaint, citing furloughs and vacancies that impede her job.

But that hasn't stopped her from employing a $102,000 a year media spokesperson. And an assistant to that spokesperson who makes $75,000, more than many prosecutors. That's for an office of only 400 people. The police department, an agency that's in the news every day, with a police and civilian force of nearly 4,000 people, employs a director of public affairs who makes less than six figures.

But these are corollary issues next to the fundamental revelation of the Steiner interview. And that's that Pat Jessamy doesn't "do" accountability.

Sunday, August 29, 2010

The Dawson Tragedy and its Failed Response

Just as I was about to write a blog on state senator Nathaniel McFadden and the 2002 Dawson murders, presto! There he was all over the news
, talking about the Dawson murders.

But my perspective differs radically from McFadden's. He accused state's attorney candidate Gregg Bernstein of exploiting the deaths of the Dawsons by airing an ad featuring the former witness protection coordinator for incumbent Pat Jessamy. In it, she criticized Jessamy's lack of effort to protect the Dawsons.

McFadden, who has endorsed Jessamy, railed about the impact of the ad on the Dawson relatives, even though he hadn't talked to any of them. And the one relative who could be contacted by the Baltimore Sun wasn't upset at all.
So who was exploiting whom?

But I had something much more fundamental in mind for this blog.

When the seven Dawsons were firebombed to death in retaliation for reporting on drug-dealing activity, it was Senator McFadden, who represented their neighborhood, putting himself in the forefront of the movement to 'do something.' He helped spearhead and fund the creation of the "War Room" to identify and focus upon violent offenders, and was visible at press conferences and tours when the War Room began operation.

But politicians move on, and so did McFadden once the spotlight faded. It apparently doesn't matter to him now that his response to the terrible Dawson tragedy went down the toilet
for lack of effort by the person he endorses, Jessamy. He shows the same lack of courage as the other city politicians who have either endorsed Jessamy or said nothing, even when in a position to know better.

But the Dawsons were murdered in McFadden's very own district. He told his constituents that he found a way to improve their safety through the War Room. And then paid it no attention whatsoever. Every year its funding got renewed without a meaningful review by McFadden or any other legislator. Frankly, nobody cared. They all moved on, until Bernstein's ad appeared.

But the War Room, the response to the Dawson tragedy, failed city residents, and one need look no further than the high profile murders of off-duty police officer Troy Chesley and Stephen Pitcairn to see it. I have written on these cases before in
Baltimore's Failed War Room and Shame on Who? But to sum it up briefly:

Brandon Grimes, the murderer of Chesley, was out on bail for two handgun cases at the time of the murder. Although notified by the War Room of his arrest on the second handgun charge while pending the first handgun case, Jessamy's gun unit did nothing to revoke his first bail. War Room arrest notices specifically urged trial prosecutors to try to revoke bail in cases like this, but were ignored in every instance.

The accused murderer of Pitcairn, John Wagner, had been in custody a few months before the murder for a robbery that was caught on videotape. Although he met War Room criteria, prosecutors dropped the case at the first hearing because the victim was not there, even though he wasn't needed. And prosecutors allowed Wagner's probation violation hearing to be dismissed without ever bringing the videotape into evidence.
Had probation judge John Howard seen that videotape perhaps he wouldn't have let Wagner go.

Jessamy has been boasting this campaign about having a unit dedicated to probation hearings. But she had always had prosecutors attend probation hearings. What was new was that Martin O'Malley, as mayor, had given Jessamy funding for four new prosecutors specifically to focus on violent offenders at probation hearings.

As head of the War Room, I was excited. I had sent War Room prosecutors on several occasions to probation hearings, but could not do it on a systematic basis due to staff limitations. I immediately requested a meeting with Jessamy's Circuit Court administrator and presented a plan to introduce evidence normally used only for trials directly at probation hearings for War Room offenders.

Jessamy's administrator refused. First she said she didn't have enough staff because she was supposed to cover all probation hearings. In other words, her vision was to simply do what had been done before with different personnel. When I persisted, she refused again because "the judges won't like it."

Finally I said I would do it myself. Only to have her prohibit War Room prosecutors from taking evidence to probation hearings. Yes, that really happened.

Now Jessamy claims that she does focus on violent offenders at probation hearings. That began to be true in recent years for federal targets, targets like Damian Wilson. But for state War Room offenders like Wagner, well, we can see the results for ourselves.
It's still business as usual. The kind of business that was done at the time the Dawsons were murdered, way back in 2002.

But that's okay with McFadden. Heck, it's even okay that Jessamy walked out on his bill to strengthen penalties against illegal handguns. Because McFadden is doing politics as usual. And politics is more concerned with the perception of results, not their reality.

When Gregg Bernstein brings up tragic murders to illustrate why we need a new state's attorney, that's not exploitation. That's providing information to voters about the very person who is charged, along with the police, of making the city safer. It's information that Jessamy has controlled for years, and that McFadden and his political colleagues have enabled to remain in the dark.

No Accountability, As Usual

I did not work with Jessamy's witness protection unit and cannot provide any insight as to how it worked with respect to the Dawson case. But I hear the same old failure to assume accountability coming from the mouth of Margaret Burns, Jessamy's spokesperson.

Ditanya Madden, Jessamy's witness protection coordinator, told the Sun that the Dawson family protection needs were never brought to her attention.
According to the Sun's interview of Burns, that's because "Madden had set up a system where only those families who agreed to receive assistance would fill out forms for Madden's unit."

So Madden had set up the system all her own? Either Jessamy agreed with it or exercised so little supervision she didn't know about it. One way or another, Jessamy enabled a witness protection unit to operate without having all protection issues brought to its attention.

Perhaps that's justifiable. But to put the responsibility on Madden the way Burns did, isn't. It's exactly the lack of accountability that characterizes Jessamy and her performance as state's attorney.

Sunday, August 22, 2010

Just the Facts, Please

The Baltimore Sun editors weighed in on the city state's attorney election last week after fund-raising reports showed substantial support for challenger Gregg Bernstein. In it, they made sure to blunt Bernstein's two major criticisms of incumbent Pat Jessamy without addressing any of her own claims.

First they said that the whole system, not just Jessamy, is to blame for low conviction rates. (I will address that one soon.) They also surmised that voters don't care about her poor relationship with police commissioners these last 10 years because they re-elected her in 2006 (over an unknown candidate) and must therefore like her "feisty" attitude. They even mentioned their own endorsement of Jessamy four years ago, failing to note their emphatic endorsement of another candidate the election before that.

But my favorite part was how they urged voters to make up their minds based on "all the facts." That's funny, because the Sun has done so little over the years to give us facts about Jessamy's performance. Instead it has focused on conflict-based reporting, the kind that it now wants voters to ignore.

The editors cautioned voters about making too much of yard sign controversies and Jessamy's ill-advised analogy comparing the city courts to public schools. They asked who "would do the best job making the city's streets safer?"

That's the right question. But what guidance are we getting from the Sun? Not much before that editorial. And after it, a front-page article on the race factor, as if that's news to anybody when white and black candidates square off. But for those voters more interested in performance over race, what "facts" and "evidence" does the Sun intend to offer up?

For years now local media outlets have fed off stories spooned to them by Jessamy's office. In Feeding the Press I chronicled an incident where Jessamy spokesperson Margaret Burns extolled an arrest that, upon closer examination, revealed the opposite of what she intended. It showed that Jessamy's office could have but failed to do anything to take a violent criminal off the street prior to his beating up two women. Doesn't that theme sound familiar?

That was two years ago, and nothing has changed. Jessamy issued a press release last week boasting about a prison sentence one Damian Wilson got for violating probation. It seems Wilson was a target of the federal Violent Repeat Offender (VRO) program after citizens complained about his drug-dealing activity, and city prosecutors were tasked with doing something because he was on a city probation.

But a little work on the facts behind the press release reveals that Wilson is a classic example of a revolving door criminal...that his belated incarceration should be credited to the leadership of federal prosecutors...and that Jessamy did nothing meaningful on her own.

Fortunately the City Paper did the work, and here's the story: Wilson accumulated a series of arrests beginning at age 18. (Who knows what his juvenile record told prosecutors.) Car theft, drug dealing, drug dealing with a gun, handgun possession, resisting arrest, assault, armed robbery--the typical pattern of a dangerous offender. None of the criminal charges resulted in convictions. But in 2002, at age 28, Wilson was finally convicted of drug dealing and got--what else?--probation, with six years in prison suspended.

Wilson went out and picked up some assault and harassment charges against his girlfriend, which prosecutors dropped. But police nabbed him again for selling drugs. And all he got was a 2004 plea deal that bundled his probation violation with his new felony drug case for a grand total of two years.

In 2006 Wilson was convicted of driving on a suspended license with no consequence, followed by some more domestic violence incidents. But in 2007 police nailed him again selling drugs, and this time he got...

12 years! Can it be? Nope, 11 years were suspended, and he served the one year he got while waiting in jail for his case to resolve.

Wilson was arrested several more times, including another attempt to sell drugs, and was convicted on two minor charges with little consequence. The judge who had him on probation issued a warrant, but Wilson was allowed to stay on the street while he racked up his arrests. It wasn't until May, 2010 that another warrant for violating probation was issued and Wilson finally put away. And only because the federally-led VRO program got involved.

all of this fiasco Jessamy's fault? Probably not. But with Wilson's criminal history staring her in the face she allowed multiple plea bargains on drug-selling cases that kept him on the street and criminally active. And did nothing to violate his probation as he piled up more arrests for two more years.

Facts like these can be found everywhere. They are why Bernstein is running, why so many have contributed so much to his campaign so fast, and why the police commissioner put a Bernstein campaign sign in his yard.

But it doesn't take experts to recognize these facts. Citizens in the community can see the evidence that the Sun still seems to be searching for, when characters like Wilson keep showing up on their street corners.

They know who's not making them safer.

Thursday, August 12, 2010

A Live Blog of the State's Attorney Debate

Today WYPR Fm 88.1 is hosting a debate between challenger Gregg Bernstein and incumbent Patricia Jessamy for the state's attorney for Baltimore City. The state's attorney is the top prosecutor in the city. My intent is to report on the discussion as it goes along, and then offer some thoughts and observations.

12:03: Dan Rodricks, the moderator, introduces them by saying that Bernstein claims that Jessamy has the lowest rate of conviction in the state and that it's time for a change, while Jessamy touts her record on gun legislation and repeat violent offenders.

12:20: Rodricks, after reviewing their qualifications, clarifies that this is not a formal debate. He plans to throw out some questions and let callers call-in. He asks Jessamy why they should re-elect her, and she says it is to continue the progress and partnerships that she has made. She says that her focus on violent offenders has been proven by "commitments to the Department of Correction," that is, by the numbers of offenders sent to prison by Baltimore. She is running to "dispel the lies" because Baltimore is sending more people to prison than anywhere else.

She goes on to say that she formed a gun team of prosecutors, created a wiretap team, and cross-designated prosecutors as federal prosecutors. "I am tough, I am smart, I am truthful."

Bernstein replies that Jessamy over course of her tenure has "concede[d] our streets" to criminals that revolve through the doors of justice. "I will take personal responsibility" to convict criminals he says, and will not engage in the blame game. When asked how he knows that Baltimore has the lowest conviction rate in the state, he cites an Abell Foundation report on low conviction rates by juries when Baltimore city was compared with other counties.

Jessamy challenged that report as being "unscientific" and returned to her claim that prison statistics is the measuring stick.

12:38: Bernstein replies that her own statistics only show a 45% conviction rate in gun cases.

Jessamy just called Bernstein a liar, saying that "he continues to lie." She doesn't say how and in what way.

Rodricks asked Jessamy how the city would become a "police state" if Bernstein is elected, as she claimed. She begins to ramble and talks about the "natural tension" between police and prosecutors and their different burdens of proof before saying that Bernstein would be a "rubber stamp" for the police.

A citizen e-mails a question to Bernstein about how would we know that he wouldn't be a rubber stamp. Bernstein says he would work independently but also cooperatively with the police. He points out that Jessamy has, at most, successfully prosecuted 1-2 police officers over the years. But that anyone knows the two agencies need to work together.

Jessamy again says Bernstein is lying. When asked by Rodricks to compare her relationship with Bealefeld to past commissioners, she says her relationship with Bealefeld was "outstanding" until this campaign.

A caller named Marty says that it's well-known that the best place to get charged is in Baltimore, because they get the best deals and the least fight from prosecutors. Jessamy goes on again to say that most commitments to prison come from Baltimore. Rodricks points out that that could be caused by high crime or other factors. Jessamy repeated her assertion and called statements that her conviction rate is low "lies."

Bernstein brings up the Pitcairn murder case. He spoke to the witness that Jessamy said was uncooperative. Prosecutors only spoke to him once, and gave up at a preliminary hearing when they didn't even need a witness. Bernstein says this is an example of failing to properly focus efforts.

Jessamy: "He doesn't even understand how the system works." Jessamy says "it would have been better" if police had taken a statement from the victim. And says she wanted to get more witness intimidation legislation from Annapolis.

12:41: Caller from Bolton Hill asks Bernstein about citizen concerns about police conduct and lenient judges. How would Bernstein deal with that? Bernstein says we have to start somewhere, and he would become more strategic. He has watched prosecutors fail to do that, they ask for the same sentence over and over and this makes it hard for judges to make their decisions.

12:48: Jessamy again says that Bernstein has no idea what he is talking about, and that she has units in her office for certain types of cases that know exactly what they are doing.

Jessamy says they have a way to identify who the "worst of the worst" is because she is the "technology queen." She says she connects all the agencies with technology and has won an award.

Bernstein says if she is the queen, her kingdom is in shambles. Her prosecutors don't have voicemail, or blackberries. But the way to target the worst of the worst is to work with the police to identify who they are and to give prosecutors the resources they need.

12:51: Jessamy says her prosecutors identify the worst of the worst at Central Booking. Bernstein responds that the War Room, the program she is talking about, has a conviction rate of only 35%. When Rodricks asks how he knows that, he cites my study of War Room offenders. Jessamy can be heard laughing, but can't respond because Rodricks takes a call.

12:58: In response to a call from a caller, Jessamy touts her domestic violence program and how successful it is. Bernstein states that this represents a disconnect with reality, because 80% of domestic violence cases are dismissed.

Jessamy says we have to look behind the statistics. And that there are elements of the law that have hampered prosecuting domestic violence cases.

A caller asks how Bernstein is going to put people in jail without evidence. Bernstein says he believes in innocent until proven guilty. And that his focus would be on targeting the most violent criminals within the context of the law and the burden of proof. Jessamy says she is already doing that.

In response to an e-mail, Jessamy says she doesn't try cases and has 200 lawyers to do that. She could make "a splash" by going to court but manages her office and knows everything that is going on. In answer to a question about his credentials, Bernstein touts his record as a trial attorney.

Debate concluded.

My observations and comments:

First of all, whew. This was my first experience with live blogging and it was a challenge. I would suggest to anyone interested in this debate and in reaching their own conclusions as to what was said and how the candidates did, to please go to the WYPR website. I personally thought it was enlightening.

When Gregg Bernstein made his opening statement it sounded like he was reading from text, which diminished the message. But as he went on he was clearly the more relaxed and confident of the two. He cited statistics, had answers as to where he got those statistics and appeared familiar and conversant with what is going on in Jessamy's office.

And he continued to repeat that the key to being effective was proper strategy. As a matter of substance, he was exactly right.

I will caution him about this, though: if he thinks he is going to come in as state's attorney and suddenly get all his staff blackberries, he has never dealt with local government and limited budgets. That is a learning curve he will have to master quickly. To Jessamy's credit, she has dealt with a stubborn city bureaucracy for a long time and probably got about as much out it and in finding alternative sources of funding as it was possible to get. But her problem has been, as Bernstein points out, one of strategy and execution of that strategy.

Jessamy spoke in rapid cadence as though she felt stressed or lacked the time to get out all she wanted to say. Because she often used terms and concepts better understood by those within the system, I wonder how much the average citizen "got" what she was saying.

I particularly wonder how the average citizen reacted to the number of times she said Bernstein and others were "lying" and spreading "lies." I find the constant use of these terms against those who disagree with her disturbing. Her own "proof" of her success in convicting violent criminals lay solely in prison statistics. One could point out, as Rodricks did, that prison statistics might just indicate there's that much more crime in Baltimore. Talk about being an "unscientific" measure of her effectiveness.

But Jessamy insisted that those who challenge her on her conviction rate are "lying." For me, this method of debate just validates the view that Jessamy doesn't get along with people. She can't agree to disagree, or to learn from the perspective of other people. They are all liars.

Her other main retort was that Bernstein did not "understand" how the system worked. For example, she said that in the robbery case mentioned by Bernstein, she needed the victim to come to court to testify under oath at the preliminary hearing so that they could have his statement for later.

What an incredibly shocking explanation. No prosecutor wants his or her witness to testify at a preliminary hearing, subject to cross-examination and the probability of having minor differences in their later testimony used against them later at trial. Based on this debate, it is clear that Bernstein understands prosecutorial strategy far better than Jessamy.

I want to say something about the War Room. When Bernstein mentioned my report, Jessamy laughed. Perhaps she would have called me a liar, too, had she had the chance. But here's the rub: where are Jessamy's statistics? She has had the War Room case outcome data in her own database. But she never, ever looked at it or published it. And when given the chance to comment on my report by the City Paper, refused to do so.

Finally, her comment that her relationship with Police Commissioner Fred Bealefeld had been "outstanding" prior to Bernstein's campaign may have been the most revealing of all. Because in my opinion, she may actually believe this. It shows just how much authority she has ceded to her media spokesperson Margaret Burns, and how she refuses to believe that her tactics have sabotaged her relationship with the police. (It also demonstrates how professional Bealefeld has been that Jessamy thought their relationship was great until now.)

Pat Jessamy lives in a world where she does everything right, her critics are all liars and ignoramuses, and there must now be a conspiracy against her because things were hunky-dory with Bealefeld until Bernstein came along.

As I said, I found the debate illuminating.

Last post at 2:09 p.m.

Tuesday, August 10, 2010

The State's Attorney's August 10th Press Conference

The following is a fictional account of the Baltimore state's attorney's August 10th press conference:

Baltimore State's Attorney Patricia C. Jessamy's Opening Statement:

Citizens of Baltimore, I know what you want. Accountability. Integrity. Effort. Results. That is why I am calling today for an investigation of Police Commissioner Fred Bealefeld.

Reporter: I don't understand. You want an investigation of whether, while in uniform, he asked a community activist/politician to meet with Gregg Bernstein, your challenger for state's attorney?

Jessamy: That's right. When the people ask for accountability, I make sure the police give it to them.

Reporter: You once asked all the employees of your office to sign a birthday card for display at your annual fund-raising birthday party. And your office spokeswoman once appeared at a woman's Republican club to denounce Mayor O'Malley's crime statistics, boasting how you were going to expose him. How do you to reconcile your position today with your using city employees to further your political agenda?

Jessamy: That's different. The people elected me. I can do whatever I want.

Reporter: What about your own accountability? Why didn't you take responsibility when your office dropped robbery charges against John Wagner a few months before his arrest for murdering Stephen Pitcairn? You claimed "no victim, no case," but you had a victim who worked for the city and a videotape of the robbery. You even dropped the case at a preliminary hearing, before the victim was even needed.

I am the state's attorney. A case is only as good as I say it is.

Reporter: You are suggesting today that the police commissioner isn't telling the truth about whether he was wearing his uniform when he spoke to a citizen about Bernstein. What about Zach Sowers, who was beaten into a coma by some robbers? Your spokesperson claimed after the trial and after he died that he only fell down between a couple of cars.

Jessamy: The police lied and the jury lied. That man was sleeping like a baby. When his whiny wife criticized my handling of the case, I had to tell the truth.

Reporter: You say you want results. Commissioner Bealefeld has presided over the largest, most sustained drop in violent crime these last few years. On the other hand, the program with which you were entrusted, the violent repeat offender program (War Room), failed because you ignored it. Can you comment on that?

Jessamy: I get credit for all violent crime reductions because I am the state's attorney. Unless crime goes up, of course, in which case the police get the blame. As for the War Room, no one else cared that it failed, not until that Gregg Bernstein brought it up. But I just issued a press release about a war room case that blames the judge, so I am not ignoring it any longer.

Reporter: You have openly criticized and fought with four police commissioners. Can we expect anything different if you are re-elected?

Jessamy: Absolutely not. You see, the only way I can get elected is to pretend that I am protecting the public. And if I can't protect them from criminals like John Wagner, then I will protect them from the police. And if I am re-elected, just wait until I get back at Bealefeld. You ain't seen nothing yet.

Reporter: How will you protect citizens from the police?

Jessamy: First, when police officers make bad arrests or fail to investigate cases to the extent we need, I will publicly blame them and the commissioner. It's a whole lot easier and much more satisfying than trying to work with them to fix the problem. Then when I have sufficiently undermined the public's confidence in all police officers, I will watch juries acquit criminals and blame the police again.

Reporter: What is your most significant accomplishment?

Jessamy: Working to get new gun and gang legislation.

Reporter: So why did you walk out on a Senate committee hearing on gun legislation?

Jessamy: Because I should have had the credit. Stephanie Rawlings-Blake didn't give me the credit. She gave O'Malley the credit. [Getting red in the face, stamping foot.] I should have had the credit! And if I don't get the credit, what good is the legislation?

Reporter: Is investigating the police commissioner for speaking to someone about supporting your opponent the most serious topic on your agenda this campaign?

Jessamy: It most certainly is. I need to get on camera. Gregg Bernstein is raising so much money--don't ask me how--that even appearing ridiculous is better than no publicity at all.