Monday, September 27, 2010

Reflections on the Election

Anyone who has followed my blog knows how I feel about the change in the Baltimore state's attorney's office that's coming this January.

But I
was glad to see the compliments bestowed upon the defeated incumbent, Pat Jessamy, after the voters pronounced their verdict. As sharply and persistently critical as I have been of her professional performance, I have always respected her personally. Never did I question her commitment to public service. Never did I see her personal or political concerns influence an individual case.

I remember one time when a city prosecutor was arrested for disorderly conduct. I called Jessamy late at night to tell her about the arrest and to discuss how to charge the case. She asked what I wanted to do, and I told her that to be consistent with our charging practices I would decline to charge the case because there was little point to prosecution. (The prosecutor was drunk and interfering with police and gave them no choice but to arrest her. A classic "abated by arrest" scenario.) However, I said, perhaps Jessamy would be concerned about public perception.

Immediately she said that she would not want to treat the prosecutor differently than any other member of the public. That was always my personal experience with Jessamy, making the case decision she thought was best whatever the consequences.

Her downfall came with the people she surrounded herself with, yes-people chosen for their personal loyalty rather than for competence and ability. In particular, she gave unfettered authority to Margaret T. Burns, the most disingenuous and divisive person I have ever met in my professional life.

Burns provided the public a small glimpse of her style in the Zach Sowers case, when she tried to undermine the widow of a murder victim who had criticized the handling of the case. Burns suggested that the victim hadn't been murdered after all, and that the widow had blocked the truth by refusing an autopsy. Had Jessamy been wise enough to repudiate Burns for these ridiculous, even malicious comments she probably would still be state's attorney. Instead she hitched her wagon to Burns and went down to defeat.

It's time now to look to the future, and I see a new energy and creativity coming for the prosecutor's office. Bernstein has a huge challenge before him, facing a culture
that's entrenched not just among prosecutors but throughout the criminal justice system. But he had the guts to take on an incumbent that no one gave him a chance to beat, so I have to like his chances.

One thing that shouldn't take too long to improve will be the police-prosecutor partnership. Reading Peter Hermann's opinion piece on Sunday, one would think the problem's been a wide philosophical divide that needs to be bridged. He writes, for example:

"And sorry, it's not the bickering that causes the suffering [for city residents], as a colleague has repeatedly and rightfully pointed out to me. The bickering is a result of what has been a fundamental difference in how Jessamy and various top officers and mayors have wanted to police and protect the city."

Sorry, it is the bickering that caused the suffering. The bickering reflected a refusal to work together, first by O'Malley excluding Jessamy from formulating his crime strategy, then by Jessamy for rejecting every idea emanating from the police while failing to offer her own concrete plan. Had they been talking, they even could have come to consensus on "zero-tolerance", finding better ways to accomplish the intended purpose. It wasn't a philosophical divide between police and prosecutors, it was plain old personal in-fighting. I was there. I saw it.

Besides, once O'Malley left for Annapolis Jessamy did come on board the Gunstat program (while Burns continued to sling arrows, albeit more subtly.) There was no divide on the philosophy of fighting guns and violence. The dispute boiled down to mutual effectiveness and ineffectiveness, and who to blame.

So there shouldn't be far to go to form a working partnership now. That won't make Bernstein a "rubber stamp" for police. It just means that they can talk and work out differences professionally and in the best interest of the public.

And one false issue raised by the campaign rhetoric was the idea that one must choose between treatment and prevention programs and locking up criminals. Not so.

Bernstein can and should keep staff assigned to alternative, problem solving programs such as Drug Treatment Court, Mental Health Court, and prostitution diverson. These programs handle those whose behavior may be treatable and preventable, and they do good work. Bernstein doesn't need to divert resources from these programs, he just needs to work smarter and more effectively at prosecuting the violent criminals. He must tap into the strategical resources available to better target those criminals. He already brings the trial expertise needed to make more charges stick.

January can't come soon enough. In the meantime, I will be writing this fall about aspects of the criminal justice system that the Maryland General Assembly should address when it convenes, also in January. And no doubt won't.

Friday, September 10, 2010

TIme for Change

So voting time has come.

Just a little over two months ago I didn't expect the city to be in this position. Whatever happens, the city owes Gregg Bernstein its gratitude for opening up debate and offering a real choice on such a crucial office as State's Attorney. The campaign forced Jessamy to respond to issues in a very illuminating way, confirming much of what insiders have known for a long time.

Sheryl Lansey filed to run for State's Attorney, too, and I heard her speak at the University of Baltimore debate. She's a mature, educated, thoughtful, woman, but the more she spoke the more it was obvious that she couldn't begin to run the State's Attorney's office. It would be like me applying for school superintendent. I may have my opinions on education, but that doesn't qualify me to run the schools.

But Bernstein, he's another story. He's intimately familiar with the issues and challenges, he's a top trial attorney, and when he talks it's obvious to those inside the system that he knows his stuff. How effective will he be at accomplishing his goals? Well, we always take a chance on that when we elect someone. But we have Pat Jessamy's actual record to tell us that it's time to try someone new.

So here's my summary of the reasons for change:

1. Jessamy exhibits a personal lack of trial skill and judgment. A prosecutor who thinks she has to subject the victim of a robbery to cross-examination at a preliminary hearing, even when she has a videotape of the robbery, is clueless. A prosecutor who pursues an announced policy of not prosecuting single witness cases, instead of evaluating each case individually, is likewise clueless.
Not to mention dangerous to public safety.

2. Jessamy rejects accountability. In her own words: "I don't do conviction rates..." "I don't accept blame." She cannot even say what she could do better. All of us can do better, but not Jessamy.

3. Jessamy ignored her own, state-funded program to focus attention on repeat violent offenders, the War Room. She can't tell us what happened to the cases of those offenders. She contends that to do so would be "smoke and mirrors."

4. Jessamy fights with the police through her spokesperson, Margaret T. Burns. Burns takes pathological delight in torturing the police by tossing all blame their way. Jessamy expressed surprise, which stuck me as genuine, that Police Commissioner Fred Bealefeld supports Bernstein. Another sign of how clueless and insulated Jessamy is from what happens in her office.

5. If Jessamy is re-elected, the blame game and tension will become even more unbearable, as Burns will exact revenge. She loves that stuff, I've seen it first hand. And maybe the best police commissioner we've had in a while will retire to find a less thankless job.

Jessamy pretends that her conflicts with the police are about protecting citizens from police. Ironically,
if she worked with the police she could be much more effective at reigning in bad practices than she is now. Ultimately, however, the State's Attorney has no power to protect citizens from police, other than to prosecute bad cops (something Jessamy can boast little success at doing.) Her conflicts are really about excusing her own failings.

6. Jessamy raised images of the pre-civil rights 1950s, essentially asking black voters to vote for her because she is black. (And we, black and white, don't need any commentators or professors to interpret for us what she was doing. It was clear.)

Jessamy and the even more overt Frank Conaway ("They are trying to steal a seat from us") are attempting to inject fear that black voters would lose all power if a white person comes to office. The power isn't in the office, it's in the vote. City residents, who are predominately African American, voted in white O'Malley for mayor, then black Dixon and Rawlings-Blake. Their power didn't go anywhere. And if Bernstein fails them, they can kick him out.

Candidates like Jessamy and Conaway are phonies. It isn't about racial pride. It's about keeping their own butts in office.
Jessamy's act is old and undistinguished, and the most she can offer now is racial fear. If her record supported her re-election, she wouldn't even have needed to go there.

For all these reasons, its time for change. It's time for Gregg Bernstein.

Tuesday, September 7, 2010

The Sun and Pat Jessamy

The Sun accused Gregg Bernstein Tuesday of "unethically" stealing its "credibility." Apparently some Bernstein campaign materials cited "The Baltimore Sun" as the source of a campaign claim without clarifying that the information came from a Sun columnist, not from the Sun's editors or reporters.

I almost had to laugh. For years the Sun has received unethically leaked charging documents from State's Attorney Pat Jessamy. But it never reported on her unethical behavior because it was the beneficiary.

As for credibility, this is a newspaper that knows that Jessamy's press aide, Margaret Burns, is ethically challenged. It also knows that she has fed them stories for years to make the police look bad. But it's done nothing to enlighten the public about it, making it a bit ironic for the Sun to complain about stolen credibility. It can't be stolen unless one has it.

But originally I had planned to revisit a previous editorial suggesting that it wasn't quite fair for Bernstein to focus on Jessamy's conviction rate because "police, judges, witnesses and juries (not to mention the caseload, budget and other resources provided to the prosecutor's officer) bear some of the blame..."

I wonder how the editors feel now knowing that Jessamy doesn't "accept blame" at all. Or that she believes conviction rates are "smoke and mirrors" and she doesn't "do" them. Or that she can't tell us what happened to the repeat violent offenders in the War Room program.

They know these things now because Gregg Bernstein challenged Jessamy and forced her into the public eye. Because she said these things in response to campaign questions on radio shows and in debates and can't hide behind the spin of Burns. Statements the Sun has still not reported on.

The campaign was never about whether Jessamy deserved
all of the blame for an ineffective criminal justice system, but about whether she could be doing a better job as state's attorney. It's quite clear from her own words that she is not and never plans to be accountable for her own performance.

But I submit that Jessamy is more to blame than anyone else for the current state of our criminal justice system for two reasons.

First she managed the War Room, which showed her how multiple agencies pursuing their narrow, independent missions failed to identify dangerous criminals and released them repeatedly to the street. When I as the War Room supervisor wrote a comprehensive report in 2004 about this she suppressed it, submitting a vanilla version to the Legislature instead. She assured me that she would handle the issues out of the public eye.

But she never did. She never approached either her own staff or any other agency with War Room data and recommendations.

And so I wrote in a 2007 report: "What the War Room has observed over the past three years is that the culture that led to the need for a War Room has not changed much over the years. The system continues to fail to 'focus' upon offenders that are responsible for violence...The 'war' on violent crime needs to come out of a 'room' and into a way of thinking and acting."

Here's what Burns/Jessamy wrote for the Legislature instead: Over the past three-years [sic], a very capable team of law enforcement and corrections partners have established a coordinated effort to meet these original goals, and it appears their efforts have complimented [sic] the criminal justice partnerships and vision to reduce violent crime in Baltimore and make our community safe through the addition of the War Room project...The War Room is a criminal justice success story..."

An incoherent report (and blatant lie) never challenged or questioned in any way by the Sun, by other news media, by legislators, or by others inside the criminal justice system, before or after I left the prosecutor's office. And Jessamy put my name on it. Talk about stealing credibility.

The murder of off-duty police officer Troy Chesley is just one example of how Jessamy's failure to do anything to effect change led to tragedy. Chesley's murderer was on bail for two separate handgun offenses at the time of the murder. Jessamy had never gone to the District Court judges to discuss War Room bail recommendations. Nor had she ever made her own staff seek bail revocations when violent offenders on bail committed another crime.

The robbery case of John Wagner, who is now accused of murdering Stephen Pitcairn, is another example I've discussed before. Jessamy failed miserably to take basic steps to proceed with a very winnable case against a War Room offender, blaming the police and the victim in a reprehensible way to escape any accountability. She also made sure to point the finger at the probation judge, though again she had never gone to the judiciary to discuss War Room offenders and probation proceedings.

The second reason Jessamy deserves more of the blame is because she has actively undercut her law enforcement "partner," the police department. Some examples include:
  • Spreading the false notion that all arrests for which prosecutors declined to issue charges are "illegal." See The Lie That Won't Die.
  • Planting a story with TV stations that the police were not solving enough homicide cases.
  • Feeding statistics to the Sun and successfully urging it to characterize the police citation program as a failure. The police wanted to write more citations and make fewer arrests to keep people out of jail and police on the streets. Instead of helping to accomplish this worthy goal Jessamy tried to undermine the program.
  • Criticizing a police plan to take fingerprints from offenders on the street. Police hoped to write more citations by enabling positive identifications. Without it, offenders could use a phony name, fail to appear for court, and have the wrong person arrested for it.
  • Tracking the results of cases in which surveillance cameras were used solely for the purpose of arguing that the cameras were a waste of money, even before the program got going.
And this doesn't even count the many times she has blamed poor police investigations for not being able to prosecute, even when, as with John Wagner, the police didn't do anything wrong.

So we have a prosecutor who never formed working partnerships with other criminal justice agencies to address War Room offenders and who has actively worked against the police department when it tries to improve law enforcement techniques. She has used the police and judges to explain her own failures.

And through it all the Sun has remained silent and reported Jessamy's spin.

The Sun can't shift this to witnesses, judges, juries, police or lack of resources. It's all on Jessamy, whether she "accepts" it or not.

Wednesday, September 1, 2010

In Her Own Words

"I don't do conviction rates because I think conviction rates are smoke and mirrors."
Patricia Jessamy, State's Attorney for Baltimore City, 8/30/10

I didn't think Jessamy's appearance on the Marc Steiner Show was going to reveal anything new or interesting, especially when Anthony McCarthy, the co-host, lobbed softballs for her to hit.

He recounted, for example, how the citizens of Charles Village gathered after the murder of Stephen Pitcairn and clamored to hear from Jessamy. I thought he was going to ask why she declined to speak to them. Instead, he wanted to know why they put everything "on [her] shoulders." When he asked about her relationship with the police, it was to find out how the police could be trained to bring her better cases. You get the picture.

But Steiner wouldn't let Jessamy off the hook so easy. When he persisted about her inability to get along with police commissioners she blamed the media for creating that perception, which fit perfectly with a statement she made in another context: "I don't accept blame." She never does.

But it was near the end of the interview that Steiner exposed the essence of Jessamy, her failure to be accountable when it comes to violent criminals. He said he wanted to ask Jessamy a question she had "never answered" namely, what happened to the War Room offenders, the "worst of the worst."

"I don't do conviction rates because I think conviction rates are smoke and mirrors."

Oh, my goodness. Prosecutors charge cases when they believe the evidence shows that a defendant is guilty, and then their job is to convict. It's a fundamental measuring stick of their performance.

Not that conviction rates tell the whole story. For example, I would view with suspicion a prosecutor that boasts a 100% conviction rate since it suggests that he or she will only try slam dunk cases, not those with reluctant witnesses or other obstacles.

But Jessamy doesn't "do" conviction rates at all, meaning she doesn't have to explain anything to anyone. Instead she created a novel, fanciful theory of measuring her success: what percentage of those committed to prison come from Baltimore.

Jessamy trotted this out for the first time in her WYPR debate with Gregg Bernstein, her main challenger. It's her story and she's sticking to it. She told Steiner that 31% of charged cases in Maryland come from Baltimore but 60% of the prison commitments come from there. Therefore Baltimore criminals go to prison twice as much as other citizens for serious offenses, giving her the highest conviction rate in the state.

Talk about smoke and mirrors. Her statistics don't account for the fact that she drops 20-25% of cases before they are charged, something other counties can't do because they don't have prosecutors in a central booking facility like Baltimore's. And that those cases are the minor kind for which people don't go to prison.

And she tells us nothing about the type of crime and rate of crime in each county, or how Baltimore's unique rate of violent crime rate skews the percentages. It boggles the mind to hear her rely on prison percentages, especially when she has her own statistics right in front of her.

But that, of course, is her Achilles heel. For years she ignored the War Room and its mission to focus on violent offenders, and now she's stuck with its sorry conviction rate. And Bernstein cites her own reports to support his claim that in 2010 she convicted only a third of those she charged with illegal gun crimes.

So Jessamy is running as fast as she can from her conviction rates, using the smoke and mirrors of prison percentages. When did we ever hear her tout them before? Not until someone exposed her performance.

She made other interesting claims during the Steiner Show.
Like how she invented the federal Exile program, and how she changed the national focus of prosecutors from drug interdiction to violence. Jessamy deserves about as much credit for these claims as Al Gore does for inventing the internet.

She claimed she knew how to try cases and didn't need to "grandstand" by doing it now. But Jessamy never prosecuted violent offenders. She was first hired in Baltimore to handle white collar fraud cases, and after just a few years doing that became the deputy state's attorney in charge of administration, then State's Attorney. She hasn't tried a case for 22 years, but claimed she advises prosecutors about courtroom matters.

I never saw her do it, but perhaps things have changed in the 32 months since I retired from her office. Perhaps she gave courtroom advice to the prosecutor who dropped the John Wagner robbery case, leaving Wagner free to murder a young Hopkins researcher in a subsequent robbery. She certainly stands by it, insisting to a caller that the victim had to testify under oath at a preliminary hearing for her to proceed with the case. When any other competent prosecutor would have done everything possible to avoid the victim's testimony at the hearing.

And finally, when asked if there was anything that she could have done better, Jessamy resorted to her old lack-of-resources complaint, citing furloughs and vacancies that impede her job.

But that hasn't stopped her from employing a $102,000 a year media spokesperson. And an assistant to that spokesperson who makes $75,000, more than many prosecutors. That's for an office of only 400 people. The police department, an agency that's in the news every day, with a police and civilian force of nearly 4,000 people, employs a director of public affairs who makes less than six figures.

But these are corollary issues next to the fundamental revelation of the Steiner interview. And that's that Pat Jessamy doesn't "do" accountability.