originally published August 11, 2008
Dear Judge Braverman,
As you suggested, I paid my $15 and listened to the recording of the bail review you conducted on Demetrius Smith on July 11. As you recall, and as I wrote about in Part I, the bail commissioner had held Smith without bail on a first degree murder charge. Your job was to review this action. At first you set a $500,000 bail but apparently thought this was too high, because you crossed it out and made it $350,000. Smith posted it and walked free the next day.
The prosecutor told you that the facts described an “execution-type” of murder. You didn’t dispute this, so you should have known that if the allegations were true, Smith would likely post your bail. In fact, his attorney asked you twice for just “any bail.” How telling.
Maryland Criminal Rule 4-216(c) tells you that in cases where a commissioner must hold an accused person without bail, such as for first degree murder, you may only set a bail if “one or more conditions of release will reasonably ensure…the safety of the alleged victim, another person, and the community.”
Yet you never mentioned “public safety” once, let alone why a bail would protect public safety. You mentioned your concern for Smith’s “liberty,” but not for the witnesses who fingered Smith. When the prosecutor reminded you about the witness murder problem we have here in Baltimore, you said “I understand.” You even said you were “not being critical “of the police for not giving you more information about the witnesses. Yet you still demanded “more” in order to hold Smith without bail. As the prosecutor told you, more for you meant more for Smith, who was already accused of a cold-blooded execution.
You called the police statement “skeletal” and asked how the police identified Smith. That was the heart of the issue for you. It wasn’t enough that they said they located “witness[es]” who identified Smith through a photo array, that is, by picking his photo out from among half a dozen photos of different individuals. You said that “eyewitness identifications are notoriously terrible” in your “experience, personal and as a judge and attorney.”
Really? Suppose there was more than one witness who picked out Smith? Or that the witnesses knew Smith? Or saw him on the street every day, so that they easily recognized him? Did you know from your “experience” that police use photo arrays even when witnesses are acquainted with defendants, just so the police can confirm exactly who the witnesses are talking about?
Apparently not. But I know what you are thinking. The police should have given you enough information for you to determine for yourself that the identification was reliable.
Apart from that little issue of witness safety, there’s just one problem. It’s not your job at bail review to make that determination. A judge or grand jury will determine probable cause to believe Smith committed murder within 30 days. Smith can challenge identification by filing motions and during trial. Your colleagues have no trouble telling defendants who want to try their cases at bail review that for purposes of the bail review they must assume the allegations are true. But you have invented a rule of your own. In fact, you actually claimed that the constitution and laws of Maryland required you to do what you did.
Judge Braverman, not only did you not satisfy Rule 4-216(c), you failed to balance the factors listed in section (d). Since you appear unfamiliar with them, here is the information you are supposed to take into account “to the extent available:”
(A) The nature and circumstances of the offense charged: Execution-style, first degree murder.
The nature of the evidence against the defendant: witness[es] identified Smith from a photo array. More information on who they were and what they saw was not available for a darn good reason.
Potential sentence upon conviction: death.
(B)Defendant’s prior record of court appearances and flight: Smith had failed to appear in court before.
(C)Family ties, employment, financial resources, residence history…: The pretrial agent told you that according to Smith he had worked for Personnel Plus for two years and lived with his sister for one year. His attorney told you that Smith was a “homeowner” who had purchased a house on Parrish Street last year. You did not ask one question about this although it raised gigantic questions.
For instance, how does someone allegedly working as a temp for two years buy a house? The answer: he didn’t, at least not in his name. If you had asked his attorney to verify her information (which she should have done before presenting it as fact) you would have learned that the listed homeowner is a woman, perhaps the sister. Judge, in all of your “experience,” taking into account Smith’s felony drug record and the new charges, what does his putting cash into a home that he couldn’t put his name on suggest to you?
(D)& (E): Recommendation of pretrial release agent and prosecutor: No Bail.
(F): Information from the defendant’s lawyer: See above, which you failed to ask her to verify. You did accept her argument that the defendant’s drug-dealing and assault record did not amount to a violent history.
(G) & (H): the danger of the defendant to the alleged victim, another person, the community, or himself. A NO BRAINER.
(I): Any other factor bearing on the risk of a willful failure to appear and the safety of the victim, another person, or the community… His convictions, his pattern of arrests…But really, need there have been more?
You did not talk about these factors, but did order Smith to take urinalysis tests when he made bail, even though he denied having any substance abuse problem. That will certainly make the community safer.
Judge Braverman, you have sat on the bench for 8 years. You make $127,252 to apply these basic rules. Perhaps you should start by reading them. And if you have, and this is the result, then Baltimore needs another judge in two years when your term is up, a judge with the judgment to protect its citizens.