Saturday, June 4, 2011

The Gotcha That Wasn't

The Baltimore Sun thought it had city state's attorney Gregg Bernstein in a "gotcha" moment.

And not just the reporter, who raised the alarming specter of "ethical" issues from an internal e-mail Bernstein sent to his staff. The editors, too, who splashed the story as the top headline of the day last Friday.

Meanwhile, a story of real substance--Bernstein's creation of a new unit to prosecute the worst criminals in Baltimore--was relegated to the inside pages.

And that's our newspaper's priorities in a nutshell.

Not that Bernstein can afford to whine about it, and he won't. But it's a reality he will have to contend with over the next several years, quickly and more adroitly if he wants to build a lasting legacy.

Bernstein sent an e-mail out to to his staff assessing the first case he tried as state's attorney. Clearly he tried to be collegial, humorous, and somewhat self-deprecating, intending to foster a sense of camaraderie.

Apparently he failed with at least one recipient, because the e-mail was leaked to The Sun. And boy did they run with it. Using some guy from New York to attack the content of Bernstein's e-mail, the Sun made it the top story of the day.

The only thing Bernstein did wrong was to e-mail his candid thoughts. As one comment on the Sun's article noted, it's E-mail 101. Don't put in writing what you wouldn't want spread across the news.

But Bernstein's relationship with the press must go beyond avoiding pseudo-stories. His chatty e-mail was quite the contrast to his persistent "no comment" policy on cases or his being too busy to explain decisions, for which The Sun, with some justification, criticized him last winter. While he must be cognizant of ethical issues, he can still find a way to communicate.

One of the mistakes predecessor Pat Jessamy made early in her tenure was in not talking to the press. They punished her hard for it, and she only narrowly won reelection in 2002. Jessamy learned her lesson, but then went in the opposite direction, elevating press relations over substance.

Bernstein won't do that, but he can't ignore the media, either. He must be accessible, responsive and proactive. Just as his e-mail mirrored practices from his days in the U.S. Attorney's Office, he seems to be taking a page from their press policies. Well, like Dorothy, he's not in Kansas anymore. He isn't above the fray, but in the midst of it, handling the messy and complex business of local crime and politics.

And the media, for its part, needs to look in the mirror. Bernstein's e-mail had precious little to do with anything of substance. It was only news because The Sun made it news. (An
d then they lectured him about it being news.) If they want a state's attorney of substance--and I assume they do--they should focus upon it themselves.

What about Bernstein's creation of the Major Investigations Unit to target violent and repeat offenders? A huge initiative, arguably the crux of Bernstein's campaign promise, the Sun gave it short shrift.

I can think of a million questions to have asked Bernstein. For example:

--How will this unit be different and more effective than what we have seen in the past?

--How will Bernstein measure its results, and report to the public?

--What makes him confident that his new chief of Major Investigations will quickly come up to speed and make a difference? Thiru Vignarajah, an Ivy League educated part-time law professor, appears to be an academic and intellectual blue blood with zero experience in local prosecution. What timetable does Bernstein have for him to learn on the job and produce results?

When reporters ask questions like these, and follow up on them, then they are journalists serving the public interest. And if Bernstein fails to answer these questions, if he hides behind prepared statements, The Sun should make him accountable.

But publishing e-mails on the front page that were clearly and appropriately intended for a narrow audience, the only effect of which is to embarrass the author, reflects more upon how The Sun does its job than on how Bernstein does his.

Tuesday, May 24, 2011

The Next Pitcairn Murder

The citizen driving in Baltimore saw a young man standing in front of his car, and stopped to keep from hitting him. The young man pointed a gun at him, ordered him out of the car, and drove off with it.

A classic carjacking, brazenly carried out in the middle of the afternoon.

The citizen described his assailant as a young African American about 19-21 years old wearing a blue Adidas jacket. But because he was focused more upon the gun than the man's features he could not identify him further.

About two and a half hours later the victim's car got into an accident. The driver, wearing a blue Adidas jacket, jumped out and ran from the scene. Witnesses identified him as "Turtle," an African American male aged 18. Police got a search warrant for Turtle's home, and though Turtle wasn't there, they recovered a blue Adidas jacket. They found Turtle a couple of weeks later and charged him with armed carjacking.

But at the first court hearing, prosecutors dropped all felony counts. Turtle now stands charged only with misdemeanor car theft and traffic violations stemming from the accident.

Does this scenario sound familiar? Last year the accused murderer of Stephen Pitcairn had walked on robbery charges just a few months before the murder. The victim had balked at coming to court, and even though they didn't need him at the first hearing, prosecutors quit on the case immediately.

And candidate Gregg Bernstein excoriated incumbent State's Attorney Pat Jessamy for it. (As did I.) In all likelihood he won a close election against Jessamy because of the Pitcairn case.

Only now the shoe is on Bernstein's foot. Because it was Bernstein's prosecutors who quit on Turtle's case earlier this month.

I tried to find out whether there were issues that I am unaware of, and was given the old "no comment." But from my experience and review of the court file, it looks like a case of chicken.

Prosecutors, without a positive identification from the victim, were just too timid to argue the circumstantial case to a jury, or to prod the police into closing the holes. They wanted the case on a platter. In fact, according to a representative from the Washington Village Development Association, a prosecutor told him that he was "glad" that he didn't have the case, and invited him to watch him review files in a room and see how many cases he has to dismiss.

If true, that guy needs a new line of work. Any prosecutor worth his salt would grab that file and work as hard as he could to get a gun-wielding carjacker off the street, whether that carjacker was Turtle or someone to whom Turtle could point them.

It's particularly distressing that Turtle has the same defense to car theft as to carjacking: (a) it wasn't him in the car, and (b) if it was, someone else gave him the car. So if the defense is the same, and the state witnesses all the same, why drop the felony? Why quit at the first court hearing?

By quitting they dumped the misdemeanor case on the young, inexperienced prosecutors in the District Court, who will be expected to ensure that all witnesses are present (good luck with that) and to know how to introduce photo identification evidence into court. And if by chance they are ready to go, Turtle will ask for a jury trial to make everyone show up to court on another day. That case is as good as gone.

And all leverage and context with it. Because a few days before the carjacking, Turtle's home was raided by police who had information that Turtle was dealing drugs. Officers found drugs in the search and arrested him on felony drug violations. Of course, consistent with city practice, Turtle was released without having to post any bail.

But Turtle was denied bail after his carjacking arrest. He was off the street. Prosecutors now had reason to believe that that he was a drug dealer escalating into violent crime. As I have written before, young men + drugs + guns = DANGER. Turtle was someone to fully focus upon.

Instead prosecutors dropped the carjacking charges, causing a judge to set a bail on the car theft charges. (Turtle hadn't posted the bail when I reviewed the file, but he might.) And despite an "official" from the prosecutor's office telling state Senator Bill Ferguson that they planned to "vigorously" pursue Turtle's felony drug case, it's all headed down the road of probation. After all, his adult record at age 18 is "clean", with just a misdemeanor car theft case pending (or dropped when it comes to trial in June.)

No one wants Bernstein to succeed more than me. And it will take time to change a long-established culture, something I know as much as anyone.

But this case sounds an alarm bell for immediate action. Some things Bernstein can do more quickly than others, and how he handles felony cases in the District Court, especially in light of his own attitude towards the Pitcairn tragedy, should be at the top of his list.

Bernstein suffers from the fact that neither he nor those in his front office have extensive experience in the District Court. When he fired the District Court community coordinators this month for budgetary reasons I flinched, and not just because several single mothers making modest salaries were suddenly tossed into a grim job market. Because a new vision for those jobs could have made District Court prosecution more efficient and responsive to public safety concerns, and ultimately save money.

But even without a District Court background, Bernstein has got to make felony assessment a priority. Or the next Pitcairn murder, where prosecutors fail to even try, will occur on his watch.

Monday, May 16, 2011

A Quiet Victory Against Guns

The governor signed into law a major new weapon in the arsenal against gun crime last week, but it barely caused a ripple in the media.

Perhaps because it couldn't be summarized in a couple of words, or exploit conflict, like "gay marriage." Perhaps because it wasn't some elected official's pet project intended to raise his or her political profile. But a gun bill that failed last year got through the
notoriously tough House Judiciary committee chaired by defense attorney Joe Vallario and passed into law this year.

The first thing it does is fix a law that required a mandatory five year prison term for certain felons in possession of a handgun.
What's wrong with a law like that? Mainly, that it gave prosecutors little leverage. Since the maximum and the minimum penalty were the same--five years--defendants had little reason to plead guilty and every reason to take a time-consuming jury trial. Guilty pleas move the criminal justice system along, much as some may not like it.

But leverage also helps police and prosecutors gain intelligence about other crimes and criminals by offering plea bargains. The TV show Law & Order, which otherwise drives me crazy in its depiction of the court process, frequently illustrates the power of leverage. The new law provides a sentencing range of five to fifteen years to provide that leverage.

Next, the law closes a glaring hole in the prohibitions against felons possessing guns and those who use guns in committing violent crimes: in both cases, the law excepted shotguns and rifles. In other words, a person could receive an additional penalty for using a handgun in an armed robbery, but not for using a rifle. A felon could be convicted of possessing a handgun, but not a pistol grip shotgun. Now, all those weapons are prohibited.

So it turned out to be three bills in one, correcting problems that police and prosecutors have wanted to change for a long time. Some had already been working on pieces of the problem, like Senator Larry Haines. Haines had tried to punish the use of rifles and shotguns in violent crime for years. When he retired before this session, the governor's office took up the cause.

Vallario contributed mightily by merging several bills into one and getting it through his committee last year before time ran out to pass it. Curt Anderson and the Baltimore city delegation introduced the merged bill this year, which was supported by the mayor and other elected officials. The new vice chairman of the House judiciary committee, Kathleen Dumais of Montgomery County, fought to keep it from being watered down. (Thank you, Speaker Michael Busch, for making her vice chair.)

But the initiative for the new penalty range for felons who possess guns, and the person who worked the hardest to keep the legislation intact and on track, wasn't any elected politician but a lawyer working for the Baltimore Police Department, Jim Green.

Green perceived the importance of the legislation, worked on drafting it, organized witnesses for the legislative hearings, worked with committee members, and endured with professionalism nonsense such as occurred last year, when former Baltimore state's attorney Pat Jessamy
walked out on a committee hearing on the bill because she didn't think she was given the credit she deserved.

He remained patient when the bill failed, brought it back this year, worked closely with Vallario, compromised when necessary, and won a big victory for law enforcement.

And he will be horrified to read this blog. Jim Green is about as ego-less as anybody I have ever met, despite his credentials. He handled shooting and gun cases as an assistant state's attorney and as a specially designated federal prosecutor for years. He came over to the city police department at about the time that his former boss, Jessamy, was ratcheting up warfare against the police as a means to get at her enemy O'Malley. Despite continual provocation, Green attempted to work with Jessamy's office and within the police department to promote reforms that would benefit the criminal justice system.

Green can spin out creative ideas for change at such a dizzying rate that a listener can get fatigued. But to those who understand what he is talking about, those who have worked a long time within the system, Green provides a refreshing, optimistic, visionary voice for progress.

Many politicians and would-be reformers try to jump from A to Z by skipping B-Y. O'Malley as mayor was a reformer like that, and a failed one. Green gets to Z the right way, through respect for all the players, his understanding of the complexity of issues, his willingness to listen to other ideas, his long experience, and his utter professionalism. He is one of the gems in the criminal justice system that works below the radar, just a public servant doing his job very, very well.

So though he wouldn't want me to say it out loud, I say thanks, Jim Green.

Sunday, April 17, 2011

Influence in the Courtroom

I was interested to see District Judge Dorothy Wilson's
name in the paper again last week. Wilson sentenced Baltimore Ravens assistant coach Andy Moeller to probation despite his second conviction for driving after drinking too much alcohol.

The last time I saw Wilson's name was about a year ago when she acquitted Kelli Oliver, the daughter of Baltimore County councilman Kenneth Oliver, of disorderly conduct and assaulting an officer. The Baltimore Sun editorialized that the acquittal smacked of political influence. I didn't witness the trial myself, but was glad to see The Sun finally call out a judge by name.

So was the Moeller probation another instance of influence? I doubt it. No matter who the drunk driving defendant is, American courts and motor vehicle administrations are consistently lenient until someone is maimed or killed.

But it did remind me that I had finally listened to the tape of the Kelli Oliver acquittal. I took up the challenge issued by Oliver's mother in a letter to the editor, who invited readers to listen to the evidence and make their own decision. I also noticed an anonymous comment that Judge Wilson's verdict was based on the fact that the judge and defendant were both black. (Funny how I never see comments like that when white judges acquit white defendants.)

So what was it, a good verdict, a politically-influenced verdict or a racially-based verdict?

Kelli Oliver was driving with her daughter at night when a county police officer stopped her car for having a light out. The facts boil down to this: Oliver's daughter was immediately loud and abusive. The officer pulled Oliver aside and told her that he only intended to issue a repair order but that she needed to control herself and her passenger. Oliver went ballistic. She was insulting, threatening, and loud.

The officer testified that cars were slowing down to watch the scene and that he decided to arrest her for disorderly conduct.
She resisted, he tried to take her to the ground, and she bit him through the skin. He then punched her in the face, causing facial fractures. It was an ugly, brutal encounter brought on by Oliver's over-the-top reaction to a legitimate stop of her car.

The technical basis on which Oliver was acquitted is discussed below for those who are interested. But the verdict was based upon Judge Wilson's application of the the wrong standard of proof.

Judge Wilson struck me as quite professional. I could perceive no hostility or bias toward any party. Did she just make a mistake, or was something else going on?

The answer may lie with another case I witnessed nine days after Wilson acquitted Oliver of assaulting the police officer. I went down to court to order the CD recording of the Oliver trial, and decided to watch a traffic docket that was getting ready to start. And none other than Judge Wilson took the bench. She explained to us how she would conduct the docket, including the fact that all fines imposed had to be paid that day.

Judge Wilson had a pleasant demeanor and appeared even-handed. She convicted one defendant I would have acquitted, but that's the subjective nature of judging facts. She was true to her word, and told one defendant who couldn't pay his fine that he needed to come back that day with the money. The docket was unremarkable until close to the very end.

And up walked Jean Fugett, ex-Dallas Cowboys and Washington Redskins tight end, and brother of the late Reginald F. Lewis. The same Reginald Lewis of The Reginald F. Lewis Museum of Maryland African American History and Culture in Baltimore. Lawyer, businessman, entrepreneur, philanthropist, Lewis was a heavy hitter. Fugett's wikipedia entry says that Fugett, who is also a lawyer, took over his brother's billion dollar company after Lewis died, though it doesn't say for how long.

Fugett got a smile and a greeting from Judge Wilson as he walked up to the table. He announced that he was guilty of driving with a suspended registration, that the police officer in the case was wonderfully professional, and that he needed time to pay the fine because he didn't have the money that day.
And he walked out with no fine to pay at all, because Judge Wilson suspended it.

It wasn't about race. It wasn't about the law. And it wasn't about fairness for all the defendants in court that day.

It was about who knows who.

In the courtroom, as well as everywhere else.


Kelli Oliver's acquittal began with her
high-profile attorney, A. Dwight Pettit, moving to "suppress" the evidence against Oliver. Suppression motions are used to keep incriminating evidence out of court, such as drugs, guns and confessions, when the police violate a defendant's constitutional rights.

Either Petit doesn't understand the law or he thought Judge Wilson didn't, because there was no evidence in the Oliver case to suppress. The police seized no incriminating evidence and obtained no confessions.
But by allowing the case going forward on a suppression motion, Wilson conducted the trial in confusion.

Eventually Wilson ruled that "the elements of disorderly conduct were not present." This is an acquittal on disorderly conduct, but not a ruling that the officer's arrest was illegal. Conviction requires proof beyond a reasonable doubt. But a legal arrest only requires that a police officer have reasonable grounds to believe that a crime was committed. Judge Wilson never ruled on this. And frankly, given the officer's testimony, which wasn't contradicted, she couldn't have fairly found that the officer lacked reasonable grounds.

But spurred on by Pettit's motion, she treated her acquittal on disorderly conduct as the equivalent of an illegal arrest. And it was a short step from there to find that Oliver could legally bite the officer who tried to arrest her, because citizens can use "reasonable" means to resist an illegal arrest. The prosecutor argued--persuasively, it seemed to me--that no legal precedent justified biting an officer through the skin, but Wilson was too far down the tracks by then to rule against Oliver.

I don't think Wilson set out consciously to acquit Oliver. But she felt the pressure of a politically connected defendant and a high profile attorney. Black, white, male, female--influence affects them all.

Friday, March 18, 2011

Releasing Violent Criminals in the Dark

He turns 67 this month, and has spent nearly 43 years in prison. On March 2 he was denied parole for the umpteenth time.

Not because he's an unruly prisoner, or considered a threat to commit a new crime. Because he's Sirhan Sirhan, the notorious murderer of Senator Robert F. Kennedy. The psychic pain he inflicted upon a nation in 1968 will likely keep him in prison until he dies or is very near to it.

Is this an adequate justification? Or is the California parole board simply making a "political" decision based on fear of public reaction if it recommended parole?

When it comes to releasing persons from life sentences early, I'd say that public scrutiny is very much a legitimate part of the equation. And that's the essence of the current debate over whether to end the governor's role in approving parole for those serving life sentences. Maryland will kick the public completely out of the picture if it approves legislation to eliminate the governor's authority.

The Sun's recent editorial on the subject was disappointing, to say the least. It wasn't the Sun's criticism of Governor Martin O'Malley, who has sat on his hands, that's troublesome, but rather its falling for the 'easy fix.' Nobody (other than Baltimore County State's Attorney Scott Shellenberger, perhaps) seems to understand the big picture.

First, one would expect The Sun to be
a champion of light and full disclosure to the public. But if the governor is simply removed from the parole process, prison and parole proceedings will be left shrouded in darkness and unavailable to the public.

For example, what did we learn about
the 50 persons whom the Parole Commission wants to release when the Sun published its article about the controversy? Virtually nothing. Advocates for prisoners, however, can serve up whatever they wish, such as this submission by the ACLU in written testimony to the senate: "[The prisoner] is serving a life sentence for knocking on a door for her boyfriend--and has served 33 years in prison." Right. My guess would be that the state proved she knew he was going to kill someone when she helped him open the door, but who knows?

That's because the names of those
recommended for parole are not public information. Why not? And why the heck isn't the Sun complaining?

But now that the controversy has pushed the governor to action,
we are getting names and information about the original crimes. And the public gets to see what's going on. That is how it ought to be.

Second, the Sun actually called for Maryland to put the commutation of sentences in the hands of a parole board.
Are you kidding me? Regardless of anyone's view of the Parole Commission (mine is low), giving it the power to commute sentences is revolutionary and cannot be justified by any of the arguments advanced by the Sun in the case of parole. Parole and commutation of sentences are two very different animals, and the Sun carelessly advocated a dangerous change in who has the power to reduce sentences.

This is what comes of easy fixes. They nearly always fail to account for complex issues and can create greater harm for a lesser good.

Maryland legislators need to take a deep breath. They don't understand enough of our prison and parole system to make such fundamental changes without other reforms. They need to understand and they need to
bring the prison and parole system under the light before they remove the only public accountability that exits now.

And Martin O'Malley needs to do his job and thoughtfully review the cases he is sent by the Parole Commission. If he doesn't want to do it, and even if he does, he should be leading the charge to increase the visibility and accountability of prison and parole officials who have control over all prisoners except lifers.

Maryland shouldn't be releasing its violent criminals under cover of darkness.

Monday, February 21, 2011

A Transparent Parole and Prison System

The last case I tried involved the murder of a deaf man who was waiting at a bus stop.

He wasn't the target of the murderer, who had gotten into an argument with someone and started shooting. An innocent bystander, the deaf man had finished his maintenance shift at the Social Security Administration late in the evening but never made it home.

No one from his family showed up at the trial or the sentencing. No one spoke for him but me. And when the judge sentenced the murderer to life in prison, I remember feeling some comfort that the governor would have to sign off on any parole. It wouldn't just be up to some parole commission that would be given no reminder of the value of this man's life. Another pair of eyes would look at the case.

Now there's legislation pending to remove the governor's authority to approve parole for those sentenced to "life" for their crimes. Baltimore Sun columnist Dan Rodricks wrote last Sunday for the second time in support of the measure. A
similar article appeared earlier this month in The Washington Post.

Rodricks advanced the argument that governors who refuse to approve parole for lifers are necessarily doing it for "political" (i.e. bad) reasons, and that it's unfair to put parole decisions in the hands of politicians. This supposedly undermines judges who, in rendering a sentence of "life" in prison as opposed to "life without parole" intend that the offender have a chance at parole.

Except that all any judge has to do to keep a governor's hands off parole is to sentence a criminal to a term of years, rather than "life." Everybody in the system knows it. Judges who want to get around the governor, can.

Rodricks really objects to the fact that governors can set a unilateral policy against parole for lifers, pointing to former governor Parris Glendening and possibly current governor Martin O'Malley. In this I agree. Each case should always be taken on its own merits. But I am not ready to jump to the solution of eliminating the governor's discretion. We allow governors to unilaterally commute sentences and issue pardons. I'm not convinced that allowing discretion in the other direction is so horrible when it comes to those who have earned life sentences.

But I could be persuaded to support changing the law if we reverse this sentence of Rodricks: "Take the governor out of the process, let the parole commission do its job, and build additional transparency into the system." He has it backwards. First we build in transparency, then we see how the parole commission does its job, and lastly we take the governor out of the process.

My experience with the parole and prison system in Maryland gives me zero confidence in its handling of dangerous offenders. The Division of Correction (DOC), for example, routinely fails to take good-time credits away for bad behavior. Take an incident that made the news last summer, when a Crips gang member and convicted felon named Brian Joseph Hill fired a gun at a Carroll County deputy sheriff and is now pending attempted murder charges.

Hill had previously been convicted of firing numerous shots at a group of people he thought had insulted his cousin, with one bullet penetrating the exterior wall of a house. It flew over a bed where a couple was sleeping and shattered the glass of a cabinet in the room. For this, together with a violation of probation (where Hill originally had assaulted an undercover police officer) and a third assault case dropped in the plea bargain, Hill got 5 years with another 10 ears suspended.

I found out that information going through public court files. But the public is kept in the dark about what happens in prison. Hill made, in the words of a DOC letter to prosecutors that I obtained, "a very poor adjustment" in prison. He battered a rival gang member in prison with a padlock contained in a sock. He assaulted another inmate who was helpless in handcuffs, and got into a fistfight with still another inmate, at which time a metal shank was found at the scene.

Yet according to a prison official speaking anonymously, Hill lost no good time credits for any infraction. When I tried to verify this with DOC they refused to answer my question. But Hill was released over 16 months early from his sentence thanks to good time credits. (He didn't shoot at the deputy sheriff within that 16 months, but that isn't the point.) It's astonishing.

This is typical, routine at DOC. They refuse to take away good time credits so they can push inmates out of the door as soon as possible, no matter how they behave in prison.

Then there's the Maryland Parole Commission, which uses its own little tricks to empty cells. They revoke parole for bad behavior but often don't take away good time credits either, resulting in early, sometimes immediate release. They wait for new convictions rather than revoke parole for other violations, ensuring that any revocation will run concurrently to a new sentence. And rather than work independently, they march to the tune of the DOC, such as with a "special project" that accelerated the parole of violent offenders in the summer of 2009.

I wrote about these issues in greater detail in earlier articles: Early Release for Bad Behavior, Leaving Prison Early Part I, Part II , Part III and Secretly Releasing Prisoners, Part I and Part II. They document and explain why the prison and parole system needs a big spotlight to shine on it before we should increase the authority of parole commissioners (who in turn rely on prison officials.) Until they change how they do business, I prefer keeping the governor in the picture, who at least is directly accountable to the people.

But how can we change the way they do business? First, end the practice of awarding good time credits up front, before a criminal serves any time. Credits should be earned.

Second, make public all prison records involving misbehavior, just as court cases are public. I can think of no justification for hiding this information from citizens who are footing the bill for incarceration. And not only should the information be available upon inquiry, DOC should regularly report on the number of disciplinary incidents and hearings, together with their results.

Third, create the same transparency for parole revocation hearings. These should be a matter of public record available upon inquiry and regularly reported upon.

Fourth, reform the whole system of concurrent sentences between new and old sentences. We need truth in sentencing.

Fifth, require the Department of Public Safety to publish the risk assessment tools it uses, and make each inmate's risk assessment open for public inspection.

With transparency like that, we should see a more thoughtful, more accountable DOC and Parole Commission. We should see agencies focused upon risk and public safety, rather than, in the words of Parole Commission Chair David Blumberg, "population control."

Then maybe we can take the governor out of it.

Thursday, January 27, 2011

The Greatest Part-time Job in the World, Part III

The 14-year-old girl testified clearly and firmly.

She had slept over at her best friend's house, and was waiting to use the bathroom when her friend's stepfather, Damien Wilson, came out after his shower. When he saw the girl he opened his towel and started "giggling his stuff."

After she "got [herself] together" she told her friend what had happened on their way to a family party that day. But after the party, her friend's mother had Wilson take her home, putting her alone in the car with him.

Wilson asked her if she would ever "prostitute" herself or "sell some pussy." She said no, and he touched her face. She said she wanted to go home and told her mother what happened when she arrived, who immediately called the police.

Wilson and a friend of his took the stand to deny what happened, badly and unconvincingly. The judge convicted Wilson.

And it all meant nothing. Absolutely nothing.

You see, Wilson opted to have a trial in the District Court. That meant that he could throw out the results by taking an appeal to the Circuit Court. An appeal from the District Court is "de novo", meaning the case starts all over again. And only a defendant can have a trial de novo. It's strictly a one-way street, and it only applies to District Court appeals.

So the young teenage girl, having been put through the ordeal of testifying about a very personal and upsetting incident in a courtroom full of strangers, would now have to do it again. Not because anything unfair to Wilson happened at trial, but because District Court judges--unlike Circuit Court judges--aren't entrusted to make decisions against the interest of defendants.

The victim didn't show up for the new trial. I don't blame her. And the defendant, who was also a police target for drug-dealing, got away with what he did to her.

The de novo appeal is grossly unfair to witnesses and victims. It wears them down and stacks the deck in favor of defendants. It makes a mockery of the District Court, which isn't so much a court but an opportunity for maximum manipulation of the criminal justice system. It wastes court time and taxpayer money. And it's just one cause of an expensive, inefficient District Court.

In Part I I described the part-time job and generous perks of District Court judges. One attorney in private practice e-mailed his concurrence, observing that a District Court judgeship is "the closest thing to winning the lottery that there is." And while many judges do try to find something meaningful to do, plenty of them "work" to spend as little time on the bench as possible.

Judge Theodore Oshrine, for instance, who tried the Wilson case, kept rushing the trial and the victim. When she had just begun to testify, he told the prosecutor, "You have two and half minutes with this witness. I'm, I'm not kidding, the docket has been slow." Later, when the girl was in the middle of describing how Wilson exposed himself, he said, "And this is going to last another two minutes, seriously."

Part II explained why District Court judges have these part-time jobs. From de novo appeals to jury trial rights for minor crimes, the General Assembly only dressed the District Court up as a court while investing all real authority in the Circuit Court.

Several commissions have met over the years to try and reform this state of affairs, only to be met with a virtual stonewall from legislative committees dominated by defense attorneys. But others keep trying.

For years the Calvert Institute for Policy Research has called for lowering some drug possession penalties to 90 days or less to keep more cases in the District Court, and did so again recently . The Greater Baltimore Committee joined the call for more 90-day misdemeanor penalties in its own 2011 report on best prosecutor practices.

This would be a welcome start. Right now any crime that carries a maximum penalty of more than 90 days entitles a defendant to a jury trial in the Circuit Court. The vast majority of crimes qualify for jury trials, even when there is very little chance that a convicted defendant will get any jail at all, let alone more than 90 days.

The General Assembly must also clearly define what invokes the right to a jury trial. When it created the District Court 30 years ago it left intact language in the state constitution's Declaration of Rights conferring the right to a jury trial in every criminal case. And although the Court of Appeals has interpreted this language to exclude some misdemeanors from this "right" we need one clear, consistent rule.

Federal law entitles defendants to jury trials when the maximum penalty is six months. The 90-day limit in Maryland is more generous, and it's entirely appropriate to entrust District Court judges with making decisions in these cases. If not, the whole court should just be turned into a magistrate's court to handle preliminary matters, at much less cost to citizens.

But I'm in favor of making the District Court a real court, which can be done by clarifying the constitutional right to a jury trial, limiting penalties on more misdemeanor crimes, and eliminating the de novo appeal.  Parking tickets and routine traffic citations can be given to administrative law judges, and the District Court should explore handling some jury trials.

It will take strong, sustained leadership to accomplish this. Ironically, had Martin O'Malley done so when he became Baltimore's mayor a dozen years ago we might have these reforms by now, four years into his governorship. Instead he forced his Early Disposition Court on Baltimore, a program he said would keep more minor cases in the District Court and allow greater focus on gun and violent crimes. He failed because he did not address the underlying problem of jury trials and de novo appeals. Looking for immediate, spectacular success, he ignored the fundamental change needed to accomplish his goal.

O'Malley could still champion this cause, but he remains focused on more immediate projects to boost his political profile. What a wasted opportunity for someone who portrayed himself as a crime reformer.

Who else could do it? It would be nice to see Attorney General Douglas Gansler, a former state's attorney and likely gubernatorial candidate in 2014, take up the challenge. But his special cause appears to be eliminating the election of Circuit Court judges, a curious choice of priorities that will do little if anything to improve the criminal justice system.

So I don't know who will take the lead. In the meantime, judicial commissions will keep pushing big raises for part-time District Court "judges" who lack real authority. Minor cases will continue to crowd Circuit Courts that should be focused instead on dangerous offenders.

And defendants will keep manipulating the District Court to wear down victims and witnesses to escape justice.

Sunday, January 9, 2011

A Little Too Cozy

The installation of Gregg Bernstein as Baltimore State's Attorney last week marked a promising new day for the city's criminal justice system. We can look forward to new energy, new ideas, greater competence, and the end of the destructive relationship between police and prosecutors that bogged down progress.

But upon reading my newspaper the morning after his ceremonial swearing-in, I felt a slight chill go down my spine. The Sun article reported the hiring of Bernsteins's new communications director, Mark Cheshire. The chill I felt wasn't about Cheshire, of whom I know nothing. It came from who selected him, and how.

I must confess that all through the election process I ignored the fact that Bernstein's wife, Sheryl Goldstein, heads the Mayor's Office on Criminal Justice. Hired by Sheila Dixon over three years ago, she created GunStat, a program that tracks the progress of gun cases, and worked hard for progress despite an ineffective, hostile state's attorney's office. She now exercises considerable influence over Police Commissioner Fred Bealefeld and real control over the policies and message of the police department.

Goldstein encouraged her husband to challenge the incumbent state's attorney, and took a leave of absence to help run his campaign effort. I felt grateful to both of them for effecting the change we are about to see. I didn't pay attention to the conflict of interest it could raise.

After the election Goldstein's hand in selecting Bernstein's top assistants was obvious and inevitable. But both of them have also taken pains to tell others that they will be operating independently. Of course, this is nearly impossible. What exactly will they be talking about when they go home together at the end of each day? The weather?

It was good, though, that they seemed aware of the danger of too close a connection, of the need for independence. And then I read about how they picked Bernstein's new spokesman.

You see, they formed a panel that consisted of the following persons:

1. Goldstein.

2. Elizabeth Embry, who worked closely with Goldstein as an attorney in the city law department on policy issues. After a brief stint elsewhere, Embry took Goldstein's place as the Mayor's point person on criminal justice when Goldstein took a leave of absence to help run her husband's campaign. When Goldstein returned, she sent Embry over to Bernstein to be his policy person.

3. Anthony Guglielmi, the police department's communications director and spokesperson.

4. Warren Brown, a defense attorney who worked on Bernstein's campaign.

When Cheshire interviewed with the panel Goldstein, according to the Sun, recused herself, making it perfectly clear--as if the others didn't already know it--that she knew Cheshire and Cheshire was her man.

So the police department, as in Goldstein, picked this guy for the State's Attorney's Office. He owes his job to her. He will stay on her message, which is the message of the mayor and the police department.

Oy vey. I am all for police-prosecutor cooperation, and have lamented its demise for years. But there does need to be some light between the two agencies. They are not one and the same, and that's a good thing. Prosecutors need to act both as a check on police and as an independent evaluator of policy.

I don't see any independence here. In fact, I see something even a little worse: the pretense of independence. A transparent little charade suggesting that the appearance of independence, not actual independence, is the goal.

Bernstein should have picked his own spokesperson. He didn't need his wife to do it for him. And if he wants to be as independent as one can be while married to the person who is now the most powerful figure in Baltimore criminal justice, he would bring in some people whom she doesn't know or with whom she even disagrees, to give him a much needed different perspective when making his decisions.

Partnership between two truly independent agencies working towards the same goal is good. Pretend partnership that masks a centralized control over police and prosecutors isn't.