Dead Wrong

originally published February 2, 2009

In most criminal cases defendants have a choice: they can be tried by a jury or a judge.

But in Judge Gale E. Rasin’s courtroom they have the best of both worlds, for they can be tried by a jury and a judge. If a jury acquits them, they walk. And if a jury convicts them, and Judge Rasin disagrees, she will throw out the verdict and order a new trial.

At least, that’s what she did in the case of State v. Willie Ferguson, a Baltimore murder trial over which she presided last fall. Ferguson’s second trial is scheduled for February 17th.

Maryland judges have the authority to order new trials after convictions, an awesome power because their decisions can’t be appealed. So if a judge steps outside the law and orders a new trial for improper reasons, nothing can be done about it.

The Court of Appeals, in awarding trial judges the power to weigh the evidence in jury cases and assess witness credibility, very clearly set the boundaries: judges are not to order a new trial “merely because the judge would have reached a verdict different from the jury’s.” Motions for new trials “are not favored” and should be granted only in “exceptional cases.” Most judges follow these guidelines, which is why we see few new trials based on the weight of the evidence.

But Judge Rasin didn’t follow them. Through most of the trial Judge Rasin made fair decisions that were legally supported. But once it became apparent that the jury was likely to convict, both her legal judgment and factual recollection flew out the door.

Willie Ferguson was accused of stabbing to death an acquaintance who lived on his street. Multiple independent witnesses saw the murder and two of them positively identified Ferguson as the killer shortly afterwards. No evidence pointed to anyone else. When arrested, Ferguson said “I hope—I know I didn’t do it, I hope I don’t got no blackout.” He provided a phony alibi that the police exposed. After about a day of deliberation, the jury convicted him.

But Judge Rasin apparently had a reasonable doubt, and she had expected the jury to feel the same way. Referring to herself as “the Court” she said, "This was one of those cases that, well, you know, the Court made its own assessment and had a view of what the jury would do and the Court was dead wrong."

Dead wrong, but it was the jury’s decision to make. Nevertheless, she found a reason to overturn the verdict. If only the defense attorney had shown the jury a DVD recording of a key witness’s prior testimony, she reasoned, they might have made a different decision. It wasn’t good enough that the witness had admitted in front of the jury that he had said something different earlier. They had to see it for themselves. Otherwise the whole trial was “unfair.”

As a legal justification, this is just bogus. The “exceptional” reason to order a new trial becomes commonplace. Any time a judge disagrees with a defense attorney’s trial tactics in hindsight, a conviction would be “unfair.” The State would try the case over and over again until a jury acquitted.

But if the legal basis was bogus, the factual justification was missing altogether. Referring to the witness’ prior testimony, Judge Rasin said, “…as I recall he definitely couldn’t identify Mr. Ferguson in court, and he was even loathe to identify the picture in the photo array…What is much more striking is his testimony at the motions hearing that sitting right here that far away from Mr. Ferguson he couldn’t identify him. But we all saw it.”

They all saw no such thing, because the witness was never asked to make a courtroom identification in his prior testimony. When asked what photo he had picked out shortly after the murder he said, “I forget.” No one followed up on this response, and no one asked him whether the killer was in the courtroom. Yet Judge Rasin insisted that he could not identify the defendant sitting in his seat. The DVD was missing both the drama and the event on which she tossed aside the jury verdict.

Though this was her main justification, Judge Rasin offered two more reasons for granting a new trial, each increasingly speculative. For those who are interested, I discuss them in more detail below. But individually and taken together, her reasons amounted to no more than an excuse to substitute her judgment for the jury’s. That made Judge Rasin, for the second time in the case, dead wrong.

No evidence came into the trial that unfairly prejudiced Ferguson. Nothing was kept out that favored him. It is up to the fact-finder to assess the credibility of witnesses.

And this was no To Kill a Mockingbird trial, where the prosecution witnesses were so thoroughly discredited that the trial judge shirked his duty by not tossing out the verdict. These witnesses did not know the defendant, did not even know each other, had no reason to lie, had a good opportunity to see the defendant before the murder, saw him commit the murder, identified him as the killer without hesitation shortly thereafter, and testified consistently with their statements to the police at trial. Taking them together with Ferguson’s statement to the police, the jury had ample reason to convict him. They did.

At the second trial the odds shoot up that Ferguson will be acquitted. It took a year to get one witness from Florida; it would be shocking if he came back again. Others may go missing, too, either through disgust with the system or relocation. No doubt an acquittal would please Judge Rasin.

But if she really were doing her job she would reconsider her decision. She would go back and look at the DVD herself, she would read the Court of Appeals opinions again, she would examine her motivations. It would take a lot of guts to admit she was wrong and to abide by a jury’s decision that she herself wouldn’t have made. But if a judge doesn’t follow the law, who will?

Overturning a Verdict

Judge Rasin offered three reasons for granting a new trial. Her main reason I discussed briefly above: that Witness A had failed to identify the defendant in court at a prior hearing. In fact, he never was asked to say whether the killer was in the courtroom. He was only asked which photo he had picked out a year earlier and said, “I forgot.” And during most of his testimony the camera wasn’t even on him. The DVD didn’t show whatever demeanor Judge Rasin wanted the jury to see.

At trial Witness A identified both the photo and the defendant in court. The prosecutor, mischaracterizing what had occurred in the prior hearing, asked him why he hadn’t been able to say that Ferguson was the killer. Witness A replied that he “didn’t feel like sitting here,” that he was “nervous,” that he had “nothing to say.” As a matter of fact, had the jury seen the DVD, his explanation would have been corroborated by none other than Judge Rasin herself, who said to him at the prior hearing, “Not thrilled to be here, I can tell.” And Judge Rasin had turned to a new judge who was sitting with her and said, “Welcome to Baltimore.” In other words, fearful witnesses who develop amnesia are nothing new.

In granting Ferguson a new trial Judge Rasin described Witness A’s testimony before the trial as “surprising… a la Perry Mason.” What was surprising—for Baltimore--was that a witness who appeared poised to recant his statement to the police changed his mind, or as he put it, “got [himself] together.” So his account of the murder did not change after all. He was tempted, but in the end held fast. Even his reluctance to be a witness was consistent from the time of murder to the trial. He testified that he tried to hide in his shop after the murder—a “punk move”—but someone had given his name to the police who brought him down to the police station. So he gave his statement and beat it out of there.

Judge Rasin also believed that the jury should have seen the DVD recording of Witness B’s prior testimony, that this would have made a difference. She said that his testimony as to what medications he was on at the time of the murder and what treatment he was under for drug abuse and depression was “all over the map” and made her head spin. My head was spinning, too, but not from Witness B. The judge and attorneys went back and forth repeatedly over what they could ask Witness B, and at one point Judge Rasin even directed counsel to write her rulings down “verbatim” because she couldn’t remember them. “I have my memory of what I said and madam clerk will tell you it’s not always that great.”

As Witness B was testifying at both the prior hearing and trial it appeared that he was trying to answer questions about treatment and medications as honestly as he could but really wasn’t sure. No one had asked him those questions a year before. What he remembered was the traumatic event he had witnessed which he recounted with care and consistency. Whatever medications he was taking on the day of the murder, he had been able to drive his motorcycle to a mechanic’s shop, worked on it, witnessed a murder while he was there, and made a statement and identification consistent with other witnesses. Frankly, I found him a compelling witness, and I saw both his pretrial and trial testimony. His inconsistencies on the side issues were barely relevant, let alone damning to the prosecution’s case.

Judge Rasin’s third reason for granting a new trial was the most speculative of all. After four hours of deliberation the jury sent a note that 11 of them voted guilty on two counts and one juror wouldn’t decide. It appeared that Judge Rasin interpreted this as one juror as holding out for not guilty, even though the note was clear that the juror just wouldn’t make a decision. (The juror was undecided even on a count on which 11 voted not guilty.) She decided that she was going to protect this juror from “Friday afternoon coercion” and declare a mistrial. Ultimately she changed her mind and after a couple of more hours the jury convicted.

But she voiced her “extreme concern” about the “Friday afternoon 12th juror” in granting a new trial. This means that without any facts at all, she believed that 11 jurors had possibly coerced the 12th juror into reaching a verdict. I am not sure how Judge Rasin defines coercion and how she distinguishes it from persuasion, which is the essence of jury deliberation. And I am unaware of any authority for granting a new trial on such utter speculation.

I want to make clear, however, that I consider Judge Rasin a conscientious, professional judge. I think she made a mistake, letting her own subjective view of the witnesses interfere with her legal judgment. It’s my hope and belief that she will review her actions, motivations, and responsibilities with a view to the future.

The same can’t be said for all of our judges. Let’s take Alfred Nance, for example. He’s a Baltimore Circuit Court judge who twice has been up on charges before the judicial disabilities commission on allegations of inappropriate conduct towards female attorneys and others. (He was reprimanded one time.) And when he exceeds his legal authority, he does it with arrogance.

In one case before him the defendant had shot a gun multiple times into a car full of people. By a miracle no one was injured, so prosecutors offered a plea bargain of five years without parole for using a gun in a felony assault, the mandatory sentence for that charge. The defendant could have gotten much more time for the assault itself.

But Judge Nance believed that the sentence was too harsh. When the prosecutor refused to drop the charge and the defendant pled guilty, Judge Nance found him Not Guilty and set him free. As in, take that. It was the prosecutor’s job to call the charge, the Legislature set the penalty, and the defendant wanted to take it. The judge had no authority to acquit the defendant on a guilty plea but felt himself unbound by law or procedure.

Now that’s a scary judge.