Anatomy of a Bail Release

When a judge allowed accused murderer Brandon Mitchell to go free pending trial last December, many citizens probably found it difficult to sort out what the media reported.  The mother of the murdered victim called it racism (because Mitchell is white and the victim was black), but it's really about the continuing incompetence of our criminal justice system, particularly the bail process.

Mitchell, an 18-year-old making a splashy entry into the adult criminal justice system, was hanging with his buddy Brian Johnson last April when confronted by a man accusing one or both of stealing his car radio.  In response, Johnson allegedly hit the man with a brick while Mitchell pulled out a gun and shot at him, missing.  The two ran, and police found the man lying on the ground bleeding from the head. 

In late June--with no arrest yet in the first case--a neighborhood fight featured the same duo.  While two contending groups assaulted each other by throwing bricks, Johnson allegedly maced one of the groups and began to chase its members.  According to witnesses, Mitchell then shot one of fleeing men, continuing to shoot as the man ran.  The victim ultimately collapsed and died.  

Police did not identify Mitchell as their murder suspect until November.  But they finally got a warrant for Mitchell for the attempted murder case a few days after the murder, and Mitchell was held without bail.

Eventually, for reasons prosecutors couldn't tell me, Mitchell's bail was lowered to $50,000 and he posted it.  The attempted murder case was then dropped in court in August.  Prosecutors said the victim was uncooperative, echoing an old excuse that led to the Stephen Pitcairn murder.  And according to a defense attorney, police refused to give up the name of another witness to the crime.  

Police finally arrested Mitchell for the murder in December.  A commissioner held him without bail, so he appeared again for a bail review represented by Jimmy Gitomer, law partner of Howard Cardin, who in turn is brother of U.S. Senator Ben Cardin.  Gitomer had also handled Mitchell's bail review in the attempted murder case.

Gitomer told Judge Askew Gatewood that the murder case was the same case as the attempted murder case that had been dropped.  Gatewood then set the same bail that Mitchell had posted in the first case, and Mitchell walked out again.

Prosecutors promptly asked Gatewood to reconsider, correctly stating that Gitomer had made a "material misrepresentation" to the court. 

Both Cardin and Gitomer appeared for the reconsideration hearing full of righteous indignation over the prosecutors' allegation.   Cardin's excuse was that they had "assumed' the first victim had died of his injuries.  This, along with the rest of their explanation, made it quite clear that they had never read the charging documents.   There was no possible way to confuse the two cases except by not bothering to read the paperwork that was readily available from their client or in court.

Defense lawyers routinely parrot what their clients tell them for bail review and present them as "facts."  For example, they will say, "Your Honor, my client has worked at the Acme Company for the past five years," instead of "My client tells me he has worked at Acme for the past five years." 

Yet defense attorneys will point the finger at prosecutors when they present false facts, as Cardin did in the Mitchell case.   When I worked at Central Booking a public defender supervisor took the same position after her staff made a gross misrepresentation of facts at a bail review.  The state's job, she said, was "to correct our mistakes."

Attorneys on both sides are "officers of the court", meaning they have a duty to be careful, honest and above-board with their facts.  Reality too often strays from this standard.  While I have no reason to think that Gitomer and Cardin deliberately lied, they were grossly negligent in their duty to the court.

What about the prosecutor?  Prosecutors at bail reviews don't have immediate access to the facts of previous cases.   Bail reviews are rushed affairs, and in Baltimore the overriding goal of too many bail review judges is to get out of court as fast as possible and enjoy half a day off.  Delaying the bail review to verify Gitomer's claims probably never occurred to anyone, especially as the "facts" came from an officer of the court.   

When prosecutors did realize that Gitomer secured his client's release on faulty facts they acted quickly to persuade the judge to change his mind.  And ultimately, Mitchell is now free due to the judgment of Judge Askew Gatewood, a law-breaker himself.   

Gatewood acted surprised to learn at the second bail hearing that Mitchell had fired multiple shots at his victim, though the prosecutor highlighted that allegation at the first hearing.  Nevertheless, because Mitchell had obeyed Cardin's instructions to come to court, Gatewood refused to hold Mitchell without bail and allowed him to post $250,000. 

Translation:  Gatewood permitted Mitchell's release because his defense attorney was Howard Cardin.  It happens every day.  Never mind that Mitchell had been arrested twice for shooting at someone, finding his mark the second time.  It wasn't racism (Gatewood himself is black).  It's about who you know.

If the Mitchell release can happen even when prosecutors and tape recordings are present, just think what could happen if they weren't, like at commissioner hearings.  At least in the Brandon Mitchell case we know who said what and who is responsible.  Fortunately, the legislature is working on reversing a Court of Appeals decision that would mandate defense lawyers at commissioner hearings. 

But knowing what happened doesn't make it any easier to take.  Especially for the Morrell Park neighborhood of southwest Baltimore where Brandon Mitchell is free to roam. 

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Let's pretend that it was appropriate for Mitchell to be released pending trial, that public safety would not be endangered.  In his first case, the attempted murder case, his mother paid a bondsman to put up the $50,000 bail.  The bondsman posted the equity in a house he owned and charged her $5,000.  He took $1,000 up front and made her sign a promissory note for the remaining $4,000.

When Mitchell was arrested again for murder and got another $50,000 bail, the bondsman used another property he owned and charged her the same rate.  Now he was into her for $2,000 cash and $8,000 in debt.

When Gatewood changed the bail to $250,000, no one gave Mitchell's mother credit for the $50,000 she already had paid to post.  So the bondsman put up yet another piece of property with an equity of $36,480 and charged her a $3,645 fee, bringing her total cost to $13,645.  The rest of the bail was posted by two persons in the neighborhood who used the equity in their properties in the amount of $100,400 and $113,120 each.

Can anyone see the sense in this?  A woman with little equity and cash of her own, now seriously indebted to a man who took very little risk to help spring her son.  (Why he took little risk is a whole other story.)  And she is indebted whether or not her son shows for trial.

If Mitchell could be released pending trial without danger to public safety, release him.  If not, don't release him.  For borderline cases, alternatives like home detention (properly monitored and enforced) might work.  But sucking money out of relatives, or leaving poor people in jail because they can't pay, is neither fair nor helpful to public safety. 

A year ago Baltimore Circuit Judge Brooke Murdoch formed a committee to address issues like these.  We're still waiting to hear its recommendations. 

Politics Before Leadership

Was anyone else amused this past summer to watch Governor Martin O'Malley declare himself the new champion of gay marriage in Maryland?  He had just sat out the 2011 legislative battle over gay marriage, passively watching it go down to defeat.   

But Governor Andrew Cuomo of New York (a potential national rival to O'Malley) threw all of his political weight and prestige behind it in New York and emerged victorious.  Suddenly O'Malley pledged to work hard for gay marriage next time around.

O'Malley engaged the same kind of political calculation when it came to a Court of Appeals case that could cost taxpayers many millions of dollars.  Giving a new interpretation to the old Public Defender's Act, the court decided earlier this month that Maryland taxpayers must pay lawyers to be available around the clock at every detention center in the state to represent the poor within 24 hours of their arrest. 

The Sun published an op-ed piece in which I explained the financial, logistical and philosophical folly of this decision.  But the issue didn't hit anyone unawares.  The lawsuit was first filed over three years ago.  In Lots of Money, Little Justice, I warned legislators and the governor to amend the Public Defender's Act to avert a costly court decision. (I also described the kind of advocacy behind the lawsuit, and what we might expect for our money.)

More than that, I spoke to O'Malley's point person for criminal justice, urging the governor to take the lead.  Her response?  O'Malley didn't want to appear to "take away anyone's right."  He wanted the courts to make a favorable ruling and do the dirty work that would keep him out of it.

They didn't.  And now legislators are scrambling to figure out what to do.  They could waste an enormous amount of money funding lawyers around the clock, or jump to some other solution that's worse.   The latter hopefully won't happen with Joe Vallario as House Judiciary Chairman. While I often disagree with him, I do respect the fact that Vallario doesn't go for quick-fix political responses to events.

While the solution is easy--amend the Public Defender's Act--it's harder to do in a rush.  And now it does appear like taking away a right.  (It isn't.  Legislators would just be clarifying their original intent.)

O'Malley could have made it easy a few years ago with a little leadership.  He could have achieved a fair, inexpensive, and measured result.  

But that was too much, apparently, to ask of a politician who prefers to wait on the sidelines while he measures which way the political winds are blowing.  

In My Own Words

I didn't intend to end my seven month blogging sabbatical with a blog about Gregg Bernstein, Baltimore's state's attorney.  But I do want to state in my own words what I tried to communicate to a Sun reporter who called me for insight into Bernstein's first year on the job.

The Sun, at the end of its story on Bernstein, states that I "raised concerns that he's starting fresh with too many things and people, rather than tapping those 'with deep experience from within the system' for guidance. This summary could allow a number of interpretations, the worst of which would be that I want him to slow down.

Gregg Bernstein has a huge job to do.  He not only has to change the way his own office functions, he has to face the entrenched bureaucracies and attitudes of other agencies within the criminal justice system that impact his effectiveness.  He has approached these challenges with energy and fresh approaches.

Perhaps the most refreshing thing about his first year was its deafening silence.  The silence created by the absence of the old public bickering between police and prosecutors.  Oh,someone made an attempt to stoke the old fires when they leaked a police department memo criticizing the prosecutor's homicide division.

But Bernstein ran over to Police Headquarters--equalizing with one visit the trips his predecessor made in  more than a decade--and we heard no more.  They resolved it, or agreed to disagree.

Occasionally I felt there might be a little too much silence, a little too much "no comment" on issues of legitimate concern to the public.  Bernstein promised transparency.  But he's beginning to learn how to respond.  And he was better to err on the side of caution than engage in the kind of free-handed commentary on cases that once got Maryland's attorney general Doug Gansler in ethical trouble when he was Montgomery County State's Attorney.
  

What I attempted to communicate to the Sun was that Bernstein could have gotten off to a faster start.   It had nothing to do with "too many things and people" (the Sun's words.)  My concern was that he did not bring in anybody with a deep understanding of Baltimore's local criminal justice system.  I mentioned one position  to the Sun, and in fact I feel there were two key jobs that should have been filled with someone who knew the system cold.  Those two positions alone could have cut the learning curve in half.   

Bernstein has brought in qualified persons, educated persons, smart persons.  They will all learn.  It's just that it will take longer. You can fix something faster when you already know how it's put together.

Perhaps after suffering as long as I did in a stagnant office that centered more around public perception than actual results I am too impatient for real change.  I don't apologize for that.  It's what motivates me to write.  

But I also worry that unless the public feels real change sooner rather than later, we could see another state's attorney three years from now.  Someone is bound to challenge Bernstein after his narrow victory in a low-turnout election.  

And the city doesn't need such quick turnover.  Having four different police commissioners in the O'Malley mayoral years wrecked the Police Department.  We need stability, the kind that Rod Rosenstein has provided over at the U.S. Attorney's Office.  He has had time to conceive a plan, develop it, and achieve significant results with violent criminals over the past six and a half years. 

We had plenty of stability at the top of the prosecutor's office before Bernstein, but insufficient competence.  Now we've got competence.  Add stability, and we achieve long term success.

The faster, the better.