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.


  1. Is this an issue that the Baltimore City Council has influence over?

  2. That is horrendous. I hope that situations like this don't really happen all the time. That dude is gonna make his way toward doing some hard time soon enough and he'll be exposed to some jiggling of a different sort. That is someone I would consider not bailing out of jail.

  3. Scott, when it comes to District Court jurisdiction it is strictly a state issue. However, the city could try to pass some criminal laws limiting penalties to 90 days for police and prosecutors to use. There would be some legal issues as to whether the state intended to preempt local laws when it comes to certain misdemeanors such as drug possession, but they should at least be looking into it.