Tuesday, June 29, 2010

Unfounded Rape Reports and Unfounded Excuses

In the face of rumors swirling around that her boss, Patricia Jessamy, may face a serious challenger this year, State’s Attorney spokesperson Margaret T. Burns remains true to form.

With Baltimore leading the nation in “unfounded” rape reports, and various agencies and advocates getting ready to review those reports, Burns disclaims any responsibility or knowledge. Instead, as reported by the Sun, she “points to a longstanding struggle between the Police Department and the prosecutor’s office about who has ‘charging rights’ in sexual abuse cases.”

Who is she kidding? Both agencies have “charging rights.” The police can file a statement of charges. The state’s attorney’s office can take a case to the grand jury and ask for an indictment. In fact, that’s what it did to ruin the investigation of a rape of prostitute by a police officer.

And when an innocent teenager was kept in jail for seven months, Burns claimed that the police charged the case even when her own office obtained the indictment. Burns can’t help herself. The lies just keep on coming.

She claims that “We have no way of knowing about these unfounded cases…Most of the time, these cases are cloaked under the secrecy that is associated with law enforcement investigations.”

“Cloaked” my eye. Burns admits that prosecutors are handling at least one of those unfounded cases, and that nurses at Mercy Medical Center have shared their concerns about how police investigators talk to victims of sexual assault.

In other words, Jessamy had reason to know that there might be a problem and failed to go to Commissioner Fred Bealefeld about it. In trying to indict the police Burns indicted Jessamy instead.

Perhaps all these “unfounded” reports of rape are improper shortcuts to dropping cases that can’t be proved beyond a reasonable doubt. Rape cases are notoriously difficult to prosecute successfully. It nearly always comes down to one person’s word against another.

But it’s even harder than that. Women are expected to behave as if all men are dirty dogs who will aggressively pursue sexual relations with them. If they don’t, if they are na├»ve or careless or trusting or drunk or otherwise not on guard, then juries will hold it against them. It’s the woman’s responsibility to avoid unwanted sex because they should expect men to do whatever it takes to get it. That’s the courtroom dynamic.

So police may be inclined to un-found reports that stand no chance of success in court, especially when the women involved don’t meet their standard of real “victims.” Prosecutors might turn a blind eye rather than add another case to their docket. Who knows at this point what’s behind the large number of unfounded reports?

But I do know that Burns is full of it when she claims that Jessamy’s office knew nothing and could have done nothing about it. And I also know that victims of sexual assault need an ear, whatever the ultimate chances of success in court.

I remember one of my first rape cases, that of a woman who had gone out for the evening with a friend of hers. They met a man who seemed very nice, and he invited the woman back to his place to watch some TV. As soon as he turned it on, he turned on her and had sexual intercourse with her. She was shocked and confused, felt helpless under his weight, and did nothing. When it was over, she left and called the police.

When I heard her story, I knew I didn’t have a case. She hadn’t said “no” in words or action, a legal requirement of rape. But I also knew she was telling the truth and had been traumatized by the incident. I just kept listening until I could figure out what to say. Finally I asked her what she wanted to happen next.

She took me off the hook, saying she didn't want to pursue the case. She felt humiliated and didn't think anyone would believe her. I told her that I was so very sorry that this had happened to her.

She broke down and cried. “It means everything to me that someone believes me,” she said. And added, “Next time I feel lonely I will just stay home and read my Bible.

What victims of sexual assault need is a listening ear. An open mind. Police who behave respectfully. And a State’s Attorney who quits her shameless posturing and acts on their behalf.

Monday, June 28, 2010

The Rosie-Eyed View Even a Feel-Good Movie Rejects

I took my son to see Toy Story 3 last Friday, the same day I read an op-ed piece in the Sun that insisted that practically no juvenile offender be incarcerated.

The villain of the movie was Lots-o’-Huggin’, a stuffed bear that formed a gang to bully other toys at a child care center. Traumatized when he was abandoned as beloved toy, he now compensated by controlling other toys.

When his victims escaped from the day care center with Lots-o’ in pursuit, they fell into a perilous situation and saved Lots-o' from death. But when his chance came to redeem himself and return the favor, he sneered and left them to die.

This took me by surprise. Like my son I had hoped for (and expected) the emotionally damaged bear’s transformation through the power of love and forgiveness. While most of his gang did change their behavior, Lots-o’ didn’t. I admired the movie’s creators for disappointing the audience with this honest dose of reality.

And thought of that polemic by a family mediator from Oregon named Matthew House. House makes the dubious claim that a juvenile courts system created in Chicago in1899 “almost completely eliminated recidivism” and that if we just returned juvenile justice to its historical roots (no punishment, only rehabilitation) we could accomplish the same thing now.

So House, from his Oregonian perspective, opposes the building of a new juvenile jail in Baltimore and assails the life term given to Lamont Davis, who at age 17 shot and maimed 5-year-old Raven Wyatt in an attempt to kill someone else.

He claims (wrongly) that Davis will never have a second chance, and argues that treatment “in the community” is always better than incarcerating juveniles. Ironically, Davis was already being supervised “in the community” when he shot little Raven. Had he been in a juvenile jail instead, he wouldn’t have had the chance to wreck both of their lives.

The new juvenile facility is designed to detain dangerous juveniles charged as adults for gun and violent crimes while they wait for trial. Right now they are housed with adult offenders in a dilapidated old detention center, something nobody thinks is a good idea. This new jail will improve our current handling of juveniles, and is not the product of a plan to lock up more juveniles.

House does admit that detention may be necessary “as a last resort” without giving any examples. The Lamont Davis case apparently doesn’t qualify.

But deciding what constitutes “the last resort” is the very core of the issue. House wants to rehabilitate every juvenile in the community. I’d like that, too. (And why not every adult while we’re at it?) But what “community” are we talking about?

The day before House’s piece and Toy Story 3 I was riding the #27 bus when a sharp “Shut up!” caught my attention. There sat a woman in the front seat with a little boy and girl no more than three or four years old each. I hadn’t seen or heard anything the children did to earn such a rebuke, and in fact they were quiet and well-behaved.

But apparently they annoyed this woman, who never looked up from an electronic device she was manipulating with her fingers and listening to through earphones. She stared into it while issuing half a dozen loud Shut Ups to the children.

At one point the boy fell off his seat. As he was climbing back into it she yelled “Get back into the seat!” and hit him audibly in his back (while still staring into her device.) The boy neither flinched nor cried, unsurprised by this treatment. When he asked, “Is this our stop?” she yelled “No! Shut up!” But he was right, and when she finally looked up she jerked the children off the bus in a hurry.

It’s a scene most of us who live in Baltimore have witnessed. And it’s just a tiny glimpse into the lives that many children lead, as their parents stop short in public of criminal child abuse.

I've seen worse. Children shuffled around from place to place, custodian to custodian, and school to school, many with harsh, abusive parents who don’t like their kids or know how to raise them but keep having children anyway. Addicted parents, mentally ill parents, parents with little or no meaningful employment throughout their entire lives.

When I look into the faces of kids like those on the bus and at the shelter I work for, I see brightness and promise and hope. A decade later, that promise may be flickering or extinct.

Like the reformed gang members in Toy Story 3, many kids can navigate their way through this upbringing with their own resiliency or with help from mentors, government institutions and second chances. But some, like Lots-o’-Huggin’ Bear, won’t. The trauma, the lack of love, the violent drug culture--this just can’t be ameliorated for every violent youth to the point where he or she no longer poses a life-threatening danger to others. For some, the best hope lies with aging their way out of the violent expression of their anti-social feelings.

Do I think that jails and prisons make anybody better people? No. They just house violent offenders separately from the rest of us. I hope that inmates are offered schooling and training and therapy and treatment that gives them a chance to succeed when they come out, assuming they can get jobs (for which much more assistance needs to be given.) But in the meantime, they can’t inflict damage on others.

The real issue is not whether we need to lock any juveniles up. It is who to lock up, in what kind of facility, for what behavior and for how long, while doing our best with alternative solutions and prevention programs for others.
This isn't 1899 Chicago. We've got juveniles who think nothing of gunning down others over "disrespect."

Even in a feel-good movie, Lots-o’-Huggin’ Bear could not transcend his trauma. It’s the sad, tragic truth of real life as well.

Sunday, June 20, 2010

A Failed Program, A Failed Relationship, and the Possibility of Change

I began my blog two years ago with Baltimore’s Failed War Room. The War Room was supposed to focus upon violent offenders to keep them off the streets. From my perspective as the War Room supervisor, it failed to make a meaningful difference, not because it couldn’t, but because no one was trying. War Room offenders returned to the street, free to commit more crimes.

All I could do, however, was present anecdotes. So I decided to study the data myself, the same data that Baltimore State’s Attorney Patricia Jessamy would not share with anyone. The results are contained in A Study of War Room Offenders, which I am publishing today.

The general public might find the terminology and data boring. But the Executive Summary says this: that the State's Attorney's Office achieved a conviction rate of only 35% for War Room offenders. And that judges and parole commissioners revoked the probation and parole of War Room offenders barely more than a third of the time despite new convictions.

Jessamy may assail these and other findings as coming from a former “disgruntled” employee. But she has the data herself.

And I am not publishing the data out of some personal problem with Jessamy. To this day I think Jessamy is a fundamentally decent person. But she took no interest in the War Room, which had opened my eyes to the deficiencies of the criminal justice system. I have a philosophical difference with her about what the State’s Attorney’s Office can be doing to improve the criminal justice system. The War Room data reveals what it's not doing.

I have a second major difference with Jessamy, which I have also written about. She thinks she can be an effective advocate while undermining the police department. On the contrary, her decision to use the police as a tool to further her political standing has undermined public safety. New ideas, new strategies, and an honest critique of current efforts arrive stillborn when one partner wants to control or blame the other.

Even the recent, alleged murder of a citizen by an off-duty police officer reflects the tension that she alone now promotes. From the public’s point of view, it was hard to understand why the officer wasn’t arrested on the spot for what appeared to be the execution of an unarmed man. He wasn’t because some witnesses at the scene claimed that he had identified himself as a police officer and defended himself. But when police investigators determined this claim was false, they were ready to arrest two days later.

But prosecutors first retraced all the steps themselves, taking more than twice as long as the police and leaving what appears to be a dangerous person free on the street. A healthy, police-prosecutor relationship wouldn’t have exposed the public to that risk, or created the perception of a double standard. This was one of the more subtle consequences of the poor relationship.

I have felt strongly enough about both of these differences with Jessamy to publicly challenge her policies. The city prosecutor’s office can and should be a leader in changing the criminal justice culture, but isn’t moving in that direction.

Speaking of change, the Baltimore Sun reported Friday the interesting speculation that a credible challenger to Jessamy may soon emerge. Unless and until that happens, I have no comment to make. But I couldn’t help but be struck by Jessamy's statement that she confronted Governor Martin O’Malley about recruiting someone to challenge to her.

First of all, it wouldn’t be the first time. He has tried to find opponents before.

Secondly, Jessamy owes O’Malley. Big time.

It was Mayor O’Malley who rescued her floundering 2002 re-election chances by publicly demanding that she get off her lazy "ass” and prosecute a case that his police department had bungled. The insult raised a racist image that backfired resoundingly in the African American community. It also, by the way, was false. Jessamy may have her management and leadership issues, but she is in no way lazy. Jessamy was re-elected in 2002 and has raised her profile and influence ever since.

Secondly, when Jessamy was privately talking in 2006 about serving another two years and then retiring, O’Malley (and his enablers on the Board of Estimates) suddenly raised her salary about $80,000. He never explained his motive, but it seemed obvious that he wanted to entice someone to run against her. Problem was, she had just been re-elected to a new four year term. Instead of retiring into the sunset, she announced to her staff that she planned to stay until she earned her 30-year retirement from the city and what will be a fat, six-figure pension based in large part on her $229,500 salary.

So it seems to me that anytime O’Malley wants to undermine Jessamy she should be laughing. All the way to the bank.

Monday, June 7, 2010

Judges, Politics and Resisting Arrest

What an editorial by the Baltimore Sun last week, which actually called out a judge by name. I’d gotten used to the old editors who would have been worried about interfering with judicial “independence.” No doubt the Sun will be accused--wrongly-- of doing exactly that.

Kelli Oliver and Talaya Kirkland verbally abused a police officer who stopped their car for a broken tail light and reportedly made a scene that caused traffic to stop. When the officer tried to arrest them for disorderly conduct, Kelli Oliver kicked and bit the officer.

For this they were found not guilty by Baltimore County Judge Dorothy Wilson, who found their behavior legally justifiable. The Sun did a great job of explaining the law and why it believed that Wilson fell down on the job. And it clearly felt the ruling smelled of politics, since the two defendants were the daughter and granddaughter of Baltimore County Councilman Kenneth Oliver.

I didn’t see the trial myself. But I am quite familiar with political verdicts. Had anyone asked me in advance what I thought the verdict would be, I would have said not guilty, regardless of the judge, and based solely upon the nature of the charges and the defendants’ family connection. It happens all the time.

Once as a young prosecutor a police sergeant confronted me about why my team had dropped a case. I learned that my co-worker had done it in response to a call from the front office. The defendant, the husband of the secretary to the Baltimore County executive, had been arrested for soliciting a prostitute and “they” didn’t want his wife to find out.

I was so mad I called my boss and told her that if the front office wanted to drop a case for political reasons they could come down and do it themselves. Youthful, righteous, naive indignation. A few years later when I told this story to others in front of this co-worker he chuckled, informing me that he had dropped a second case after a call from the front office.

“You did?” I asked incredulously.

“I’m a loyal foot soldier,” he replied.

Not long afterward the co-worker came into my office and stared out of the window, feeling rather badly about a plea he had just taken. A man of Greek descent had sexually molested a child, and some politically influential members of the Greek community had called the state’s attorney, who in turn asked his loyal foot soldier whether “anything could be done” with the case. The loyal prosecutor used his discretion to plead it out to probation.

But despite his momentary remorse, the foot soldier’s political instincts had its rewards. He’s now a judge.

Then there was the prosecutor assigned to a court created to plea bargain cases to keep them from going from the District to the Circuit Court. She called me to say that she couldn’t stomach the plea agreements that the judge was offering. When I sympathetically told her that all she could do was make the state’s recommendation clear on the record, I heard silence on the other end of the phone.

“You are putting the state’s position on the record, aren’t you?” I said.

“You know what I want to be,” she replied.

Yes, I did. She, too, is now a judge.

Despite Attorney General Doug Gansler’s campaign to end the election of Circuit Court judges in Maryland, it won’t kick politics out of the judiciary. District Court judges like my two former colleagues aren’t elected, but they “play the game” which includes currying favor with politicians and prominent lawyers who recommend them for their judgeships. This results in too many judges who lack the guts to make independent decisions that negatively impact influential people. They continue to be politically sensitive.

Judges are human beings like the rest of us. They need the same scrutiny anyone else in public service should get. I applaud the Sun for taking a look at Judge Wilson’s decision, and hope they will keep it up.

A New View of Resisting Arrest?

It would be hard to imagine Judge Wilson allowing police officers to bite and kick citizens in the course of making a legal arrest. We’d call that police brutality. But she said it was okay for citizens to do it when police officers did not have grounds for arrest. Not only did she invite others to question her motives with this decision, she opened a can of legal and practical concerns.

An “illegal” arrest is in the eye of the beholder. A police officer may be making an arrest in good faith. A citizen may legitimately think the arrest is illegal. No one knows until they get to court, where different judges may rule differently. It's really just a crapshoot as to whether its justifiable.
Should we permit violence under these circumstances?

There’s also a disparity within the law. A citizen has a common law (historical) right to reasonably resist an illegal arrest. But he does not have a similar right to resist an illegal stop. (A stop is a temporary detention by police.) Why not? That’s just the way the law developed over the years, because a “stop” was a concept invented by the Supreme Court and not rooted in common law. We can't expect the ordinary citizen to know the difference, and there's no valid rationale for the difference to exist.

And practically speaking, what is “reasonable” for a citizen to do in resisting an illegal arrest? Citizens can’t use deadly force. But Judge Wilson says they can bite and kick the police. Suppose the kick is to the groin, or the jaw, or the bite takes off part of an ear, a la Mike Tyson. Would that be okay, and would it matter if the injury was inflicted intentionally or unintentionally (as if we would ever know for sure)? That's a heck of a decision to leave to judges, and doesn't say much about how our country has evolved. We are not still fighting the King's men.

Then there's the problem of escalating force, from police officers making an arrest in good faith, to the rogue cop itching for an excuse for violence, to the citizen matching blow for blow. And what is a bystander to do in seeing a citizen grappling with a police officer? Does he have to know if the arrest is legal or illegal to lend aid?

Although I’m not a fan of reacting to every issue with new laws, legislators may want to take a look at this situation. It may be safer for all involved not to permit a citizen to resist arrest, whether the arrest is legal or illegal, and confine the remedy for an illegal arrest to a civil lawsuit. The lawsuit's coming anyway.