Shame on Who?

“No victim, no case.”

So pronounced the spokesperson for Baltimore State’s Attorney Patricia Jessamy after the robbery and murder of Stephen Pitcairn, explaining why prior charges brought against suspect John Wagner just four months before the murder had been dropped.

I practically choked on my breakfast reading that quote in the Sun. Prosecutors did have a victim. He was just giving them a hard time. So what? Victims and witnesses do that all the time in Baltimore. But it isn’t up to them to decide whether they will testify. It’s up to prosecutors, who have to protect the safety of everyone, not just the victim.

And they had surveillance video footage to corroborate the robbery for which Wagner was arrested. In fact, they were able to catch Wagner later using surveillance cameras as he boarded a bus. All they needed to do was get the victim onto the stand, however resistant he might feel.

But it gets worse. What the Sun story omitted was that the prior robbery charges were dropped only 19 days after they were brought. Prosecutors abandoned the case at a preliminary hearing in the District Court, a hearing to determine whether there was probable cause to charge Wagner with a felony.

Had a judge found probable cause, the case would have gone down to the Circuit Court, and no doubt would still be pending. And Wagner would have been in jail on July 25 rather than murdering Pitcairn because Commissioner Karen Daniels and Judge Theodore Oshrine had held Wagner without bail after his arrest on the robbery.

It’s even likely that prosecutors themselves recommended no bail, since Wagner qualified for the violent repeat offender (War Room) program. But as I have said repeatedly for over two years now, Jessamy ignored the War Room program once offenders got past the bail review stage. The prosecutor handling the hearing failed to recognize or care that Wagner—whose long arrest record began with two 1993 robberies and who was now on probation for a serious domestic assault—warranted a little extra effort.

But it's gets worse still. Because the prosecutor didn't even need the victim at the preliminary hearing. He could have asked a police detective to testify, because hearsay is admissible at preliminary hearings. And if he knew he had a rogue judge that forces victims to testify, he could have sent the police to get the victim or sought a body attachment (a warrant for witnesses.) He also could have sent the case to Circuit Court prosecutors for a grand jury subpoena to the victim and an indictment. It's not as if they didn't know where the victim lived.

All the prosecutor did instead was go to court and ask meekly for a one-week postponement. He wanted to combine Wagner's case with his co-defendant's case and get the victim to court for both, promising to drop the cases if the victim didn't show up. He acquiesced weakly when Judge Yvonne Holt-Stone, showing as much indifference as the prosecutor, denied the postponement.

And Pat Jessamy stands by it.

Remember the kidnapping and robberies in the Guilford neighborhood, when the suspect was on probation for committing a robbery in the same area? In that prior case prosecutors did have a cooperative victim yet failed to ask for jail time. Jessamy’s explanation? The uncorroborated victim testimony was "minimal" evidence, something her office never bothered to tell the victim.

So Jessamy can’t prove cases with cooperating witnesses without corroboration. And she can’t prove cases with resistant witnesses despite corroboration from a video.

But then, she has dissed surveillance cameras since they first came out, using them to attack the police for wasting money. And no doubt this dropped robbery case is part of the statistics she uses to show that surveillance cameras don't lead to convictions.

Jessamy doesn’t even try. That’s all the public wants. Try.

But Jessamy prefers to accuse those who criticize her of “politicizing” a tragedy, specifically Gregg Bernstein, her challenger this election who called the murder “preventable.” She says he should be “ashamed” of himself.

But if he is right, and the murder really was preventable, who should be ashamed of whom?

Bernstein is right. The April robbery case absolutely should not have been dropped at the preliminary hearing stage. The culture of the city prosecutor’s office, the one that Jessamy has directed for 16 years, led directly to Wagner’s freedom to commit murder.

And so did the culture of a judiciary that refuses to take probation violations seriously. Judge John Howard failed to incarcerate Wagner at a hearing that took place only two days before Wagner was charged with the April robbery. It was Wagner’s second probation violation, this time for stealing a car while on Howard's probation. But Howard put him back on the street. It's truly unbelievable.

And par for the course. Judge Howard isn’t alone. I wrote about the problem in 2008, right about the time that Howard was putting Wagner on probation, in The Empty Threat of Probation.

It’s all shameful.  And if the voters don’t act, the shame will keep on coming.

Now We Know

I was (and still am) on vacation when Gregg Bernstein announced his candidacy for Baltimore State’s Attorney. We should be grateful that such a worthy candidate is willing to take on the rigors of a campaign and the challenges of the city prosecutor’s office. It’s an office that could and should be the shining light of the state but has, particularly since 2002, elevated the image of State’s Attorney Patricia C. Jessamy over her results.

I did catch about half of the Larry Young radio show last Friday, however. It was refreshing to hear Jessamy herself on the show, rather than her ubiquitous spokesperson, Margaret Burns. I tuned in when former Baltimore mayor and state’s attorney Kurt Schmoke was claiming that he travels around now as an academic and sees other prosecutor offices copying Jessamy’s programs.

What programs? Schmoke, who hired Jessamy into the state’s attorney’s office 25 years, is now 22 years removed from that office. He hasn’t a clue.

Then defense attorney Warren Brown called into the show. Upfront about his support of Bernstein, he nevertheless complimented Jessamy for her personal qualities before asking his question: Why has Jessamy never invoked mandatory penalties for repeat violent offenders?

Here was her answer:

1. Brown had a personal motive for asking this question because he blamed her for leaking some information that took him out of a previous state’s attorney’s campaign.
2. Brown had just argued for a lenient sentence for one of his clients but the judge sided with the prosecutors.
3. No one will believe that a defense attorney wants her to put his clients away for life.

Brown persisted: Why has Jessamy never invoked mandatory penalties for repeat violent offenders?

Jessamy finally responded that Brown was “inaccurate.” She provided no details—no explanation of her policy, no numbers, nothing. And she proudly added that she did not invoke mandatory penalties for “non-violent offenses.”

Anybody listening to this—assuming they weren’t thrown off by her accusations and diversions--would have realized that Jessamy has no handle on whether or when her office pursues mandatory penalties for repeat violent offenders. That’s pretty disturbing.

But my ears focused on her admission that she doesn’t pursue mandatory penalties for non-violent offenses. Giving her the benefit of the doubt, I assume she was talking about felony drug offenses, not handgun possession charges, which technically are not “violent” offenses but are connected to violence.

But drug-dealing is likewise connected to violence, something I have argued since I began this blog. My recent study of Jessamy’s violent offender program confirmed the connection. Yet Jessamy admitted to a policy that never seeks mandatory penalties for drug-dealing.

I suppose she’s catering to a constituency that favors drug treatment over incarceration. Rehabilitation over prison. As do I. For addicts. For those selling to support an addiction. For young people who made a mistake.

But not for those shooting and intimidating and murdering to make drug profits for gangs and organized crime. When police catch those persons repeatedly dealing, prosecutors need to consider mandatory penalties.

Jessamy doesn’t, by her own admission, make any distinction between dealers. It’s the first tangible result of Bernstein’s challenge. Now we know.