Bad judge, Bad bail review..and then there's Prevas

Reporter Justin Fenton was attending the bail review of a high-profile case when he caught the bail review of one William Campbell. And from that we get a column from Peter Hermann about the unfairness of the bail review system.

Hermann had something good to write about, but it wasn't about the unfairness of the bail review system.

Hermann (and Fenton in his blog) describe a bail review where a defendant had his bail amount tripled when he tried to represent himself. Cue Doug Colbert, the law professor who thinks Marylanders should pay for lawyers for all arrested persons before a bail commissioner. And of course, Colbert tells Hermann that a lawyer would have made all the difference.

Except that in Baltimore a lawyer was already supposed to be representing Campbell. Under a funding agreement with the state, the public defender's office represents jailed defendants who don't post their initial bails and appear before a judge to review those bails. Hermann and Fenton don't tell us why the assistant public defender in court that day didn't speak for Campbell.

Did Campbell refuse public defender representation, as some defendants do? Did he fail to cooperate? Did jail officers deny access to a lawyer? Did the public defender's office screw up? Without this piece of the story, we can't draw any conclusions about what difference "the right to a lawyer" made or could have made for Campbell. The reporters also don't give us enough facts about Campbell's background and charges to suggest he could have gotten his bail lowered enough to make it. [Subsequent to my original post, I found out more about Campbell. See More to the Story, below.]

Lacking all the facts, this isn't a story about a defendant railroaded by a speeding locomotive of a bail review system, as Hermann tells it. It's really a story about a bad judge.

When a private lawyer predicted to Fenton that Judge Charles Chiapparelli would raise Campbell's bail to "no bail" after Campbell raised "a fuss", it meant that he had seen Chiapparelli in action before. Chiapparelli has a mean little streak, and it comes out when defendants interfere with his first purpose in court: to get out of there as soon as possible.

I mentioned Chiapparelli in The Greatest Part-time Job in the World, Part I racing through his docket so he could leave for the day at 12:15. I left out a little scene I witnessed that's relevant to tell now. A man pleaded not guilty to the charges of driving through a stop sign and failing to yield the right of way. After the police officer gave her side of the story, the man testified that he stopped for the sign but because it was set so far back he only looked like he ran it. He then started to explain his failure to yield but Chiapparelli cut him off, finding him not guilty of the stop sign violation, guilty of failing to yield, and giving him probation before judgment (which meant no points on his driving record.)

The man protested that he hadn't had a chance to speak about the second charge. An angry Chiapparelli ordered the court clerk to look up the man's driving record (which he didn't do for anyone else) and ranted about the ungrateful man's attitude. Message to everyone else in courtroom: shut up.

Chiapparelli's explanation to Hermann for raising Campbell's bail was that if a defendant talks then he looks "more closely at the facts in the case." Apparently it wasn't important to look closely at them at the beginning of bail review, when the defendant's liberty and public safety should have been just as much a concern. Chiapparelli doesn't have time for defendants who want to talk. It's next case, next case, then he's outta there.

A couple of more points about the Hermann/Fenton pieces:

1. Judge Alfred Nance did not rule that "Maryland's anachronistic system that emphasizes speed over fairness needs reform." Please. This is interpretative license taken way too far. Nance ruled that defendants have a right to a lawyer at a hearing where a commissioner sets an initial bail (based on his questionable interpretation of a Supreme Court case.)

2. Fenton wrote that "a pretrial services official and the prosecutor got to talk about what bail should be set for Campbell" before Judge Chiapparelli increased the bail without hearing from Campbell. Some could take this to mean that defendants are routinely railroaded.

The pretrial services official is a neutral party charged with investigating the defendant's ties to the community and making recommendations to city judges about whether to release defendants. And prosecutors speak at a minority of bail reviews in the city (and rarely in the rest of the state.) They are funded by War Room funds to focus on violent offenders. Only occasionally will a prosecutor appear without a defense attorney because the public defender is supposed to represent city defendants. It is far more often the other way around.

I don't oppose lawyers at bail reviews, by the way (which is different from lawyers at the time bails are set by commissioners) so long as the public defender's office doesn't get a zillion more dollars to staff bail reviews. They already are under-employed in the district offices and can spare the time. I think they can make a difference for some defendants who can be safely released after further reflection and investigation. I just don't think the Campbell incident makes the case, though I'm glad to see Judge Chiapparelli exposed.

I promised to offer my own views on what reforms are needed for the bail system. I hope to start on that next time.

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Judge John N. Prevas

In striking contrast to lazy judges like Chiapparelli, there was Baltimore Circuit Court Judge John N. Prevas, a man passionately dedicated to the law, to justice, and to his job. While controversial at times due mainly to his manner, Prevas could never be criticized for his work ethic and devotion to making legally correct decisions. In poor health for many years, Prevas refused to retire, continuing to judge through considerable pain.

Judge Prevas died yesterday, with his boots on. He will be missed.

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More to the Story

Subsequent to my original posting, I obtained this statement of charges against Campbell:

[Police officer responds for a domestic assault call.] Upon arrival, I observed a black female...crying in the living room...[She] advised me that her boyfriend assaulted her by pushing her around and choking her while in the top floor bedroom. [She] also advised me that herself and her boyfriend were having a dispute. Her boyfriend started to push her around the bedroom. [The victim] landed on her bed and her boyfriend got on top of her and began choking her with both of his hands around her neck. [She] could not breathe and began to get light-headed as a result of being choked. [Her] ten-year-old daughter walked into the bedroom and observed the suspect assaulting her mother. An anonymous neighbor also came into [the house] as a result of hearing screaming. The suspect let go of [the victim] after hearing the anonymous [neighbor] inside the dwelling yelling for the victim. [The daughter] called 911...

Once I entered the location, I located the suspect in the top level hallway. After ordering him downstairs, same gave me a name of Michael Smith...Further investigation revealed his that the suspect's name is Willliam Campbell...I observed numerous bruises and scratches around the neck and chest areas of the victim...

So Campbell allegedly assaulted his girlfriend by strangulation in front of her daughter. He gave a phony name to the police officer. He has two prior convictions for assault, violating probation in one of them. He had prior charges for armed robbery dismissed, and was recently acquitted of illegal possession of handgun.

No wonder his bail was raised. Too bad Chiapparelli only read the facts when Campbell spoke up. Rather than creating a call for bail reform, he might have allowed Campbell back on the street where he could further harm the victim, leading to a call for domestic violence reform.

The Price of Enlightenment

This week's cover story in the City Paper is a must-read for anyone interested in how vicious predators can continue to prey on citizens even though they've been caught. Written by Hal Riedl, a frequent commentator on this blog, it details the journey of a sexual predator and murderer through a criminal justice system that just doesn't get it.

I first met Riedl in 1998 after I had filed to run against the "Nine Trusted Judges" of Baltimore's Circuit Court who were standing for election. Riedl called me, introduced himself, and explained that he worked for the Department of Public Safety, from which vantage point he could see how judges were sentencing criminals. As we talked, it became eerily clear that his top three "least-trusted' judges were the same top three on my list, though our reasons and perspectives were different.

Riedl tried to help my underdog, unsuccessful campaign as judicial candidate, just as he worked hard for state's attorney candidate Gregg Bernstein. He puts his money where his mouth is.

And on his own professional front, he constantly advocated for more appropriate handling of violent criminals. He saw not only what judges did with sentences and probation violations, but how hearing officers handled prison violations and parole commissioners parole and revocation hearings. He understood the significance of criminal backgrounds when others didn't or didn't care.

He became a gadfly to his employers. And this year, before writing his article Freeing Willie, Riedl was fired.

The excuse? He had sent an e-mail to Peter Hermann of the Sun regarding a prisoner that corrections officials mistakenly released after he impersonated another inmate. It hit the media last winter, and Riedl provided some factual details to Hermann about the release along with his interpretation of those facts, namely, that they "point glaringly to our stupidity in DOC" and that the release was due to "gross monumental incompetence."

Hermann, this year's "Best Journalist'" (along with Justin Fenton) in the City Paper's Best of Baltimore edition, then inquired about it with Public Safety officials with enough lack of delicacy that they instantly delved into Riedl's e-mail and fingered him.

And despite Riedl's clear First Amendment rights to speak on an issue of public importance, Secretary Gary Maynard fired Riedl. First Amendment rights apply only to those who can pay a lawyer to protect them.

Some will now perceive Riedl as a 'disgruntled' employee, even though Maynard was the disgruntled one. And others will view him with suspicion because he spoke out, because he didn't protect his own interests first like most of the rest of us do.

But Riedl is the kind of guy the public needs to shed light on how their government operates. And even though Maynard took away Riedl's livelihood, he did the rest of us a favor.

Because Riedl can now speak freely. And now we know about Willie Featherstone, and our monumentally incompetent system.

The Non-Fix to the Bail System

How would the citizens of Maryland like to pay the many millions it would cost to provide a lawyer for every single person arrested throughout the state?

That's the prospect created by Baltimore Circuit Judge Alfred Nance's decision last week in Richmond v. District Court, in which he ruled that the poor are entitled to a lawyer at their first appearance before a bail commissioner after arrest. While the decision in theory applies to the poor, in reality the state would have to make lawyers available 24 hours a day, 365 days a year throughout the state at every commissioner hearing.

In reversing a decision he first made in 2007, Nance relied upon a 2008 Supreme Court case that arose out of Texas. A defendant arrested for a handgun offense was taken to a magistrate (the Texas version of a commissioner) where he was told of the charges against him and given a bail. He posted the bail but was denied an attorney because he wasn't in jail and prosecutors hadn't yet decided whether to pursue the case.

The justices held that his appearance before the magistrate made the defendant eligible to have an attorney appointed for him to handle his case. They did not rule that he had the right to an attorney at the hearing itself. (Much like turning 16 makes one eligible for a driver's license but doesn't award the license on the 16th birthday.) Maryland already offers free attorneys to poor defendants who are released after seeing a commissioner.

Nance is known more for inappropriate conduct towards female attorneys and rude, boorish behavior towards persons in his courtroom than for his legal acumen. In any event, his decision will be appealed, and whoever loses before the state Court of Appeals will probably appeal to the U.S. Supreme Court, so the final decision will take awhile.

As I pointed out in Lots of Money, Little Justice, appointing lawyers to represent defendants before bail commissioners would bring enormous cost to taxpayers while providing little benefit in return. 46% of defendants already are released statewide without posting any bail (and 47% in Baltimore.) Adding lawyers would slow the commissioner process down significantly and hold people in jail longer without appreciably changing the results.

The driving force behind the Richmond v. District Court lawsuit is Doug Colbert, a law professor specializing in bail issues. Colbert's a darling of radio talk show host Marc Steiner and is frequently published in the Baltimore Sun, but his credibility within the criminal justice system suffers from the fact that he obscures and omits facts that are inconvenient to his point of view. He also merges two distinct issues in his advocacy: the unfair impact of the bail system upon the poor, and his belief that more people should be released before trial regardless of their economic status.

For example, in the Richmond case he presented all his clients as being inappropriately incarcerated, failing to mention when they had failed to appear for their trial, had committed more crimes while waiting for trial, or really weren't poor and unable to make bail. To Colbert, these facts aren't relevant and are harmful to his argument, so he leaves them out.

And his solution is to throw public money at the bail system by adding another layer to the process. Actually, Colbert suggests two 'reforms': give every arrested person a lawyer at the bail hearing, and have prosecutors recommend the release of defendants. In other words, let's spend millions and millions of dollars to hire extra defense attorneys and prosecutors around the clock throughout the state of Maryland to do what bail commissioners are already paid to do.

I will give Colbert this: he has called attention to the fact that our bail system does need reform. While he undermines his cause and credibility with misleading descriptions of his clients, dubious claims about cost-savings, and expensive, unproven solutions, he's right that something needs to be done.

And it won't cost a thing, except the willingness to dispense with the status quo. I'll expand on this in my next blog on the bail system.