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.