Wednesday, April 21, 2010

Baltimore’s Shadow State’s Attorney

Three things I noticed about last week's conviction of Lamont Davis for shooting 5-year-old Raven Wyatt in a botched attempt to kill a fellow teenager.

First, the work of Diana Smith, the prosecutor who had to battle the alibi provided by the Department of Juvenile Services (DJS) that Davis was home at the time of the shooting under their supervision. Smith is one of a number of dedicated, competent prosecutors whose work is overshadowed by the political nonsense of her superiors at the Baltimore state’s attorney’s office.

Which leads to point two. Police solved the case using evidence gleaned from a stationary outdoor surveillance camera, known as a pole camera, which captured the incident on video. It’s the second time in a month that a pole camera led to a conviction in a shooting case.

Yet as the Sun’s Peter Hermann pointed out, city state’s attorney Pat Jessamy actually used the first conviction to decry pole cameras as a waste of money. As usual, Jessamy herself did not speak on the issue. The press release and subsequent commentary came from Margaret Burns, Jessamy’s press aide.

When pole cameras first went up in 2005 under Mayor Martin O’Malley, Burns ordered prosecutors to identify and track cases in which police arrest reports mentioned cameras. The order didn’t come from trial supervisors, from Jessamy, or from anyone else who should have been interested in maximizing the cameras’ potential. It came from the media spokesperson, then at the height of her personal and political feud with O’Malley.

Burns was busy attacking O’Malley and the police on all fronts, from arrest numbers, to police officer appearances in court, to crime lab issues, to a new citation system designed to reduce the number of arrests Burns was complaining about. She undermined the police at every turn.

From its inception Burns resolved to label the pole camera program a failure. She even sent an e-mail to prosecutors seeking examples of blurry pole camera images for distribution to the media, something Steve Fogleman, a candidate for state’s attorney, exposed in 2006.

But O’Malley’s been gone from Baltimore for three years, and Jessamy’ prosecutors just secured two shooting convictions in one month with the help of pole cameras. So why the continued pokes at the program? Anything that helps Jessamy convict criminals ought to be welcomed.

Perhaps she’s thinking of running for mayor, and is playing politics with public safety to get there. If there’s one thing Jessamy’s behavior over the past decade has demonstrated, it’s Pat's Political Career before the Public Interest.

But I also worked long enough with Margaret Burns to know that she genuinely enjoys the kick-the-police game to which she is now addicted. It’s possible that her curious attacks on pole cameras simply reflect a personal pathology that derives pleasure from conflict.

And finally my third observation. When the Davis verdict came down we didn’t see Jessamy on camera before the media, Jessamy photographed by the Sun, Jessamy quoted, or Jessamy dispensing congratulations to her staff. We saw Burns. Here we had one of the most high-profile convictions by Jessamy’s office in recent memory, and Jessamy’s nowhere in sight.

If and when Jessamy declares her candidacy for mayor, or even if Jessamy confines her political ambition to another run for state’s attorney, her supporters and contributors need to recognize what their eyes tell them: that the candidate behind the candidate—the Manchurian Candidate, for old movie buffs—is Burns.

It’s Burns who forms the strategy, who relentlessly attacks perceived enemies, who puts her candidate forth even as she pulls all the strings, not just about media matters but about prosecution strategies. But unlike Angela Lansbury, who brilliantly played the power behind the candidate in the 1962 movie, Burns can’t quite keep her ego in check.

A good puppeteer, even a good media relations director, would have put Jessamy out in front. And any state’s attorney worth her salt would have spoken to the people herself after such a significant verdict.

Burns grabbed the spotlight instead. The shadow state’s attorney stepped forward.

Voters take heed. A vote for Jessamy, whatever office she runs for, is a vote for Burns.


The Value of Technology

The Baltimore Sun editors took two technologies to task after the Davis verdict.

The GPS monitoring system used by DJS to “supervise” juveniles in the community was proved a joke beyond a reasonable doubt. And despite the nine months DJS has had to fix their home monitoring program since the shooting, it remains inept. A co-worker of mine had her teenage son hooked up to an ankle bracelet for DJS home monitoring this week. He leaves the house when he wants, and nothing happens.

But when it comes to pole cameras the editors appear to suffer from CSI syndrome, lusting for cameras so fantastic they can read license plates from outer space. They neglected, however, to mention the cost. $20 million? $100 million? Are we going to hang technology like that on a pole in East Baltimore?

And the editors appear to adopt the premise that unless camera videotapes can prove the identity of every criminal beyond a reasonable doubt they are not worth the investment. Sounds like they’ve been talking to Burns, but certainly not to police or prosecutors.

Even when video images cannot identify a criminal in a courtroom they can lead to his arrest. And they can demonstrate the manner in which a crime was committed, eliminating the alternative versions that defense lawyers push on juries.

If the cameras just proved how a crime occurred and left only the issue of identification, they still make for valuable tools. And if the clarity of their images can be improved at a reasonable cost, all the better.

But as they are now? They helped bring Raven Wyatt’s shooter to justice by giving police detectives the clues they needed to find him.

Bravo for pole cameras.

Wednesday, April 14, 2010

The Greatest Part-time Job in the World, Part II

Part I I described the District Court of Maryland as a part-time job for its judges.

That’s no reflection on the job most of them actually do while on the bench. With exceptions, including two I named, most of the judges on the District Court handle their work responsibly and conscientiously.

Some even work harder than the job requires. Judge Charlotte Cooksey single-handedly created Mental Health Court, a specialized court to handle the mentally ill who cycle through the criminal justice system in Baltimore. Judge Jamey Hueston made similar efforts to bring Drug Treatment Court to the Baltimore District Court two decades ago.

But the basic demands on a District Court judge in criminal court does not, for the most part, require a full week of work. It’s a court of little consequence, designed for maximum manipulation by defendants charged with misdemeanors. As a result, the Circuit Court, which handles jury trials and felony cases, is manipulated as well.

I once heard Judge Ben C. Clyburn, now the chief judge of the District Court, once describe the District Court as a “postponement and probation court that lacks finality.” He was speaking as a member of a committee created to improve the status quo, and I appreciated both his honesty and his efforts to change things. Too many colleagues of his colleagues are quite content with their job.

Go to a district criminal courtroom in Baltimore one morning and it would appear very busy, a kind of controlled chaos. But underneath the surface, there’s little of substance.

First come the cases dropped for lack of evidence or witnesses. Then, as Judge Clyburn pointed out, defendants get either a postponement of their case or probation. Postponements are wonderful for defendants because witnesses will eventually stop coming to court. And when defendants run out of postponements in the District Court they can, in most cases, demand a jury trial in the Circuit Court, which brings more postponements.

If a prosecutor offers probation in the District Court many defendants will take it. But if the prosecutor doesn’t recommend it, or the judge won’t agree, it’s on to the Circuit Court.

Defendants may opt for a court trial with the hope of an acquittal. Or they may not have the right to a jury trial if it’s a very minor case. But if a District Court judge convicts them after a trial, no problem. They have an automatic right to start over again.

Appeals from convictions in the Circuit Court are based on legal errors or some gross unfairness. But appeals from the District Court are “de novo”, which stands for do-over. An appeal wipes out the first trial and sends it to the Circuit Court, no questions asked. It doesn’t matter how fair the trial or how clear the evidence. The District Court trial merely served as a dress rehearsal.

Victims and witnesses must go through more postponements at the Circuit Court. Assuming they stick around long enough, they have to testify all over again. For them the do-over appeal is a nonsensical, burdensome system.

Even defendants who plead guilty in the District Court can start over at the Circuit Court. They can offer to plead guilty in return for the prosecutor dropping some charges. But on appeal from the guilty plea the dropped charges stay dropped. It’s a nifty little way to manipulate the system.

Defendants can even appeal when they violate a District Court judge’s probation and get a whole new hearing in front of a Circuit Court judge who knows nothing about the original case (and could often care less.)

The bottom line? The Circuit Court matters. The District Court doesn’t.

And a corollary to that: The rights of defendants count. The rights of victims and witnesses don’t.

The District Court is designed in every way possible to inconvenience victims and witnesses and give defendants multiple chances to “beat the charges.” Yet because the District Court is supposed to handle the minor cases in the system, its judges are forced to play the game.

Deny a postponement? Refuse to promise probation? The defendant will just demand a jury trial and burden the Circuit Court with a misdemeanor case. And if by chance a District Court judge actually conducts a trial and convicts someone, who cares? The defendant can just appeal and start over again. There’s little incentive to conduct a proper trial.

None of this benefits the Circuit Court or the criminal justice system. When misdemeanor jury trials come to the Circuit Court in numbers impossible to provide courtrooms for, Circuit Court judges play Let’s Make a Deal.

District Court plea offers and sentences get chopped down to nothing. Defendants on probation for something serious, like a gun or violent crime, can often get Baltimore Circuit Court judges to work out “package deals” that won’t violate their probation if convicted on a new offense.

So misdemeanor cases don’t count in the District because they are not allowed to count, while the Circuit Court is too busy to handle them. The only ones in the criminal justice system who benefit are defendants.

So the District docket dance goes on. The most popular judges are not those who take their time to do careful work, because careful work is neither necessary nor valued. It’s those who finish fastest so everyone can get out of there.

And so we find judges on the golf course, in the stores, at their children’s schools, or employed in other occupations during normal working hours. The judges aren’t needed to actually judge cases, only to preside over a clearinghouse that winnows out cases through attrition of witnesses and manipulation of the system.

The General Assembly created this system. And while it once showed some willingness to change it, it ultimately failed to so.

It needs to act now, and make the District Court mean something to the justice system.