Monday, May 17, 2010

The Death of Elbert Davis

As a young woman playing slow-pitch softball I learned quickly that I better make the plays in the field when they came my way. It was too easy for hitters to smack the ball to give them extra chances.

Baltimore’s criminal justice system is much the same way. Defendants get so many chances to “beat the charges” that when prosecutors get a chance to make their case against dangerous criminals they better do so.

The history of Umar Burley illuminates how criminals cycle through the system and why I’ve been critical of State’s Attorney Patricia Jessamy for failing to train, lead and focus her prosecutors properly.

Burley is the guy charged speeding away from police and smashing into the car driven by 86-year-old Elbert Davis April 28, killing him and injuring another elderly passenger. Burley had at least 20 prior arrests, listed in detail at the end of this article.

Prosecutors dropped eight cases at the lowest level, the District Court. Since most of these cases had victims, presumably the victims didn’t come to court or didn’t cooperate.

In another five misdemeanor cases Burley asked for a jury trial, which is how defendants manipulate the system when prosecutors are ready to proceed. Burley got what he wanted after the cases were sent to the Circuit Court for jury trials: three dismissals and one probation.

Let me pause with that probation case. Burley was charged with speeding down Liberty Heights Avenue, a major thoroughfare in Baltimore, and then down Fulton Avenue, a residential street. He blew through red lights attempting to escape police officers who had tried to pull him over. When police finally caught him, they found him with bags of heroin and cocaine. The heroin was 44% pure.

At the time of this arrest Burley had already been convicted of drug dealing, for which he got three years, and for drug possession, getting probation. So what did he get this time? More probation. And the prosecutor dropped the heroin and fleeing-from-police charges to boot.

Not only do high speed flights from police endanger public safety, but my experience in the War Room identifying violent offenders taught that these incidents appeared frequently in the background of offenders who were or became violent.

But the prosecutor in Burley’s case gave the charge away in a plea bargain. And a month later Burley was charged again with fleeing the police, this time in Baltimore County. He got probation again. Prosecutors didn’t take the crime seriously, and neither did Burley.

Police then caught Burley red-handed with a gun in his car. But Burley walked when the judge threw out the gun because of an illegal search.

I watched the video of this case. Judge John Prevas ruled properly. But the young, inexperienced prosecutor failed to properly prepare the police officer to testify about an alternative argument that the judge acknowledged would have saved the evidence. The prosecutor was part of a specialized gun unit that was supposed to focus on gun offenders. It wasn’t up to the task.

After the failed handgun case, police arrested Burley for possession with the intent to distribute drugs. Burley got 5 years, with all but one year suspended. A dozen years earlier he had received three years for the same crime. The penalty got lighter for a repeat offense.

A month after his release on his one year sentence, police arrested Burley for possessing a gun that they found between him and a co-defendant in a car. He also had failed to report to his probation agent and was charged with violating probation. By the time the probation violation came up for a hearing, the U.S. Attorney had intervened and charged the gun case federally, causing Jessamy’s office to drop its charges.

At the hearing Burley’s defense attorney told Judge John Glynn that the gun charges had been dismissed. And the prosecutor agreed. He never mentioned that the gun charges were now pending in federal court instead of state court.

Who was the prosecutor? Incredibly, it was Doug Ludwig, head of the specialized gun unit. Ludwig had twice authorized that Burley be charged with handgun violations, and he had coordinated the transfer of Burley’s case to federal prosecutors. He now had no idea who Burley was and no clue about his record. It was just another day in court for Ludwig, handling probation cases he cared nothing about.

So in September 2008 Judge Glynn imposed only 18 months out of the four years that he had originally suspended and terminated probation. Burley served the sentence while already in jail waiting for his gun case to resolve. The U.S. Attorney then dropped Burley’s gun case in March 2009 after his co-defendant pled guilty. Federal prosecutors take few chances with their conviction rate, and in my opinion didn’t want to risk an acquittal when the co-defendant could take the fall for the gun. But Jessamy’s prosecutors could have taken the evidence into the state probation heaing, where, because it is a civil proceeding, the burden of proof is lower.

Not only that, Burley had heroin on his person when arrested on the gun charge, which Ludwig could have proved at a probation hearing. And if nothing else, knowing that Burley was a danger, Ludwig could have argued for the full four-year sentence to be imposed no matter what the reason for the probation violation—Burley not reporting to his agent, Burley with heroin, or Burley with a gun.

But Ludwig said nothing. He made no sentencing recommendation whatsoever. Jessamy’s chief gun prosecutor failed to track and focus upon an offender he himself had charged twice with handgun crimes. He didn’t know he had the man’s case on his probation docket. Burley was just another defendant. Next.

And so Burley was free on April 28, 2010 to speed once again through the streets of Baltimore, this time killing an elderly man.

I suppose that even had Judge Glynn imposed the full four years for violating probation there’s no guarantee Burley would have still been locked up this past April. The Parole Commission would have considered Burley “non-violent” and probably let him loose as soon as possible.

And that, citizens of Baltimore, is your criminal justice system in action.


Burley’s Prior Cases

The cases listed below are taken primarily from electronic court records. I don’t claim that it is complete—it probably isn’t. The electronic records that the judiciary make available to the public are terribly flawed. They also omit many serious traffic crimes.

All cases were in Baltimore city except where noted.

1989: Possession of illegal drugs. Result: Probation.

1994: (1)Auto theft. Result: Request for jury trial. Final outcome unknown.
(2)Assault with the intent to murder. Result: charges indefinitely postponed.

1995: Possession of illegal drugs with the intent to distribute them. Result: 3 years in prison, with another 3 years suspended.

1998: (1)Disorderly conduct. Result: Dismissed.
(2)Assault and malicious destruction or property. Result: Dismissed.

1999: Assault. Result: indefinitely postponed.

2000: (1)Malicious destruction of property. Result: dismissed.
(2)Possession of illegal drugs with the intent to distribute. Result: Dismissed.
(3)Possession of illegal drugs. Result: request for jury trial, indefinitely postponed.
(4)Possession of illegal drugs. Result: request for jury trial, indefinitely postponed.

2001: Possession of illegal drugs. Result: indefinitely postponed.

2002: Possession of illegal drugs with the intent to distribute; assault; theft. Result: Dismissed. (Baltimore County.)

2004: (1)Assault. Result: Dismissed.
(2)Fleeing and eluding police, possession of heroin, possession of cocaine. Result: Request for jury trial. Guilty plea to possession of cocaine for two years suspended and one year probation.

2004: Fleeing and eluding police. Result: probation. (Baltimore County.) In 2007 Burley got six months for violating this probation which he served while in jail on a felony drug charge.

2005: Handgun violation. Result: evidence suppressed at trial, case dismissed.

2006: Possession of illegal drugs. Result: jury trial request, dismissed in a plea bargain with the next case listed.

January 16, 2007: Possession of illegal drugs with the intent to distribute. Result: 5 years in prison but 4 of those years suspended. Burley was violated on September 10, 2008 for failing to report to his probation agent and got 18 months out of the 4 years suspended. He served that time waiting for charges in the following case to resolve.

November 19, 2007: Handgun violation and possession of heroin. Result: federal prosecutors charged and then dropped the handgun case after a co-defendant pled guilty. No one pursued the heroin charge.