The Public Defender's Purge

My summer vacation from this blog went on so long I thought I might never return, but an item from the Daily Record caught my eye and sense of disgust.  The Baltimore Sun, that increasingly irrelevant paper, apparently didn't notice, but the city public defender's office underwent a purge last week. 

 Many of the office's most experienced trial attorneys were demoted or fired.  This includes their second-in-command, Grace Reusing, and their chief felony lawyer, Bridget Shepherd.  It's not a shake-up.  It's a melt down.  

What State Public Defender Paul DeWolfe hopes to create from the molten remains is anybody's guess.  But from my perspective, the man lacks both intellectual honesty and basic humanity.  

The Daily Record reported that "at least" one person was fired, but at least five were tossed out into the street.  DeWolfe clearly intended a new beginning, but only had the guts and honesty to force it upon his white employees.  

How does the person who managed all of those fired and demoted employees, who worked hand-in-hand with the deposed Reusing, not get the axe as well?  Elizabeth Julian, the city's Public Defender, is African-American.  

How do five older white men get canned, while 66-year-old Bob Cummings, no more distinguished than any of them, survive?  He's also African American, and yes, he's the brother of that Cummings, U.S. Representative Elijah Cummings.  Wolfe purged only to the point he anticipated political fallout. 

Then there's the humanity aspect.  One of the employees told me there was no warning, no indication of poor performance, no request to change what they were doing, nothing.  Just boom, you're out, effective immediately.

I know most of the persons DeWolfe ousted or demoted.  I tried cases against them, worked with and sometimes battled with them over policies and programs.  Each one was a dedicated, competent advocate for their clients.  I never met any more tenacious advocate than Shepherd, who once, to my amusement at the time, called herself and her office the "moral conscience of the criminal justice system."  But that is exactly how she conducted herself.  She stood up to every perceived violation of the rights and interests of her clients. 

Her reward for her many years of effective service to her clients?  A demotion to an entry level position, a deliberate humiliation. 

At least, I suppose, she now has the choice to quit when she is ready.  The older white men got fired without warning.  Oh, they may be able to draw early retirement, which, if they are lucky, means a third of what they are making now.  They were given no time to to look for other jobs, to readjust their retirement planning, to plan for their families' welfare. 

One assistant public defender who is keeping her job spoke out, calling DeWolfe's actions "cruel."  That would be Lisa Gladden, whose freedom of speech stems from her position as state senator and vice-chair of the Judicial Proceedings Committee.  If DeWolfe wouldn't fire Cummings, he won't be firing Gladden, either, even when she correctly sums him up. 

By what standards is the performance of the public defender's office measured?  Who knows.  DeWolfe pretty much has carte blanche to make whatever decisions he wants on any grounds he wants. 

And if that includes the inhumanity of firing competent workers without notice, and the blatant use of age, race and gender in the demotion and retention of employees, so be it.

Pretty ironic for an agency charged with protecting the rights and respecting the dignity of those it represents.   

Tough, Transparent or Neither?

David Simon of The Wire fame has an interesting piece on his blog.  It's long (over 4500 words) so I will boil it down:

• Police and prosecutors are pulling statistical tricks on the public because The Sun is no longer adequately staffed to properly cover the crime beat.
• The police have ceded to State's Attorney Gregg Bernstein complete authority to charge murder cases.  This makes his rate of convictions artificially high and the police rate of unsolved murders artificially low.

There's a lot more to the article, of course--the details and explanations, some self-justification, and a proposed solution.  But here's what I found most interesting: that a State's Attorney who campaigned on the promise of transparency and the willingness to take on tough cases has apparently retreated on both fronts.  

According to Simon, Bernstein is using his unilateral power to charge cases to cherry pick the best cases, a tactic that should keep his conviction rate high for political purposes.  Bernstein directly criticized his predecessor for dropping tough cases, but at least she took the hit in her statistics.  She just blamed the police for lousy work.  But, says Simon, Bernstein can make his conviction statistics look great by not charging cases to begin with.

To which I say, what statistics?  I went to a meeting of the Baltimore Criminal Justice Coordinating Council earlier this year at which Bernstein gave his "annual" report.  (His predecessor gave a quarterly report.)  Bernstein talked completely in generalities, with not a single benchmark with which to measure his performance.

I asked for a follow-up meeting, and learned from him that it was a "little too early" to report out on the accomplishments of his new violence unit (that was nearly a year old) and that he had little handle on other statistics, sources of statistics, or plans to publish statistics.  During his campaign he said he would post his conviction rates on his website, but 18 months into his tenure they have yet to appear.  Where's the transparency?

Perhaps it's still "a little too early" for Bernstein, but when it comes to murder cases he had better get his conviction rates out there quickly before the police take back their power to charge.  Bernstein's wife, Sheryl Goldstein, who headed the Mayor's Office on Criminal Justice, announced her resignation hours after Police Commissioner Fred Bealefeld announced his.  Goldstein and Bealefeld were joined at the hip. 

It was Goldstein who greased all the wheels for her husband when it came to police-prosecutor relationships.  I worried at the outset that the situation was a little too cozy but saw negligible reporting or concern from the Sun (which underscores Simon's point on adequate beat coverage.)

But with a new police commissioner and no wife in the mayor's office, Bernstein will have to stand on his own two feet.  I doubt the new top cop will give up the right to charge cases.  Prosecutors and police should cooperate and collaborate, but also balance each other.  It's not healthy for one to dictate to the other.

And while we wait for a new police commissioner perhaps Bernstein can start working on the transparency he promised.  We might find out which claim is true: Bernstein's that he's tough, or Simon's that he's cherry picking.  

A Neighborhood's Frustration

When I first began this blog the thing I learned first was how illiberal liberal folks could be.

I began on Marc Steiner's Center for Emerging Media website, and almost instantly Marc got flak from liberal groups.  Even Marc himself suggested that I wanted to lock everybody up and "throw away the key."

I know this isn't unique.  I saw in yesterday's paper that many educated people are unhappy that eminent Hopkins neurosurgeon Ben Carson will speak at Emory University because they disagree with his views on evolutionary biology and ethics.  It's astonishing how people choose to stop up their ears to those with other perspectives.

Funny thing is, if liberals read my blog with open minds they would see that I am no Attila-the-Hun.  I support improved prisoner re-entry programs, bail reform, effective alternatives to incarceration, a radically new approach to drug crimes, reducing the barrier of criminal records to employment, and so forth.

But I do believe that there are people who need to be locked up for the public's safety and well-being.  Not forever (for most), but until the period of their greatest dangerousness passes.  This makes liberals scream.  They want more rehabilitation and prevention programs. 

Fine.  There's no conflict there.  But the existing criminal justice system still needs to improve its focus, prioritization and performance right now with the resources at hand.

Two young criminals are scheduled for trial on gun charges today, men who were brought to my attention by the Washington Village Development Association (WVDA.)  WVDA has been as active an anti-crime neighborhood group as I have ever seen.  They monitor the activities and cases of drug dealers and violent criminals, go to court, lobby police, prosecutors and legislators for action, and send e-mails to judges to voice their displeasure, e-mails like this one:

...On 1/24/2011, the Court sentenced [Robert] Uzzell to seven (7) years in jail.  However, The Dishonorable Circuit Court Judge, Pamela (I’m-going-to-legalize-drugs-from-my-bench) White, suspend [sic] the jail sentence—placing Uzzell on three (3) years of supervised probation and returning him to the streets of Baltimore...[Emphasis in the original.]

What prompted the WVDA e-mail was Uzzell's arrest on gun charges while on Judge White's probation. And the fact that  at the time Judge White put him on probation he had just finished another probation for drug dealing, with a prior arrest for using a gun to deal drugs.

A co-defendant, Corey Gibson, was also on probation for possessing over 65 units of cocaine and marijuana, a felony.  Judge Timothy Doory gave him probation without a conviction for this, something I don't criticize.  If the young man really wanted to turn his life around, not having a felony conviction would help him get a job.

But Doory didn't care much about the job thing after all.  When Gibson was arrested again Doory did nothing because the new charges were dropped.  Prosecutor Nancy Olin mentioned to Doory that Gibson had made no effort to find a job while on probation but failed to argue for any enforcement of this requirement.  Doory merely hoped that being in jail for three months on the new arrest had "gotten [Gibson's] attention."

What a tired, typical excuse for inaction.  Less than a month later Gibson and Uzzell were charged with gun crimes. Their level of dangerousness, and WVDA's frustration, is escalating.

Then there's 36-year-old career criminal Larry Lloyd, a likely addict who is less of a violent threat than Uzzell and Gibson but nevertheless a bane to the WVDA.  His many, many arrests for drug possession, drug-dealing, loitering, assault, harassment, etc. have resulted in short jail sentences, probation, more probation, or dismissals.  He's had plenty of chances at drug treatment and turning himself around, to no avail.  

A few years ago Lloyd was put on probation, convicted again while on probation, and returned to probation by Judge Lynn Stewart.  Then police charged him with felony drug charges, only to have the case dropped last December.

Why?  Because Judge Gale Rasin suppressed the evidence.  I listened to the hearing, expecting to find that the police had botched the case.  Instead I found that it was Rasin who botched Fourth Amendment analysis.  It's the second time I've seen this judge fail to follow the law to reach a result she personally preferred.  Basically, she ruled that the police can't approach a suspect and tell him they heard he had drugs on him without instantly violating his rights.

Nevertheless, WVDA says that prosecutors raised their hopes by promising to charge Lloyd with violating Judge Stewart's probation.  They never followed through. 

It's hard to blame WVDA for ill-tempered e-mails with experiences like these.   Are they supposed to wait for some new social programs to deal with the Uzzells, Gibsons, and Lloyds of their community?

Or could the criminal justice system at least be trying to do a better job right now?

The Phylicia Barnes Case: A Questionable Start for the Defense and Prosecution

Kudos to The Baltimore Sun for reporting the conflict of interest that Mead, Flynn, & Gray, a criminal defense law firm, got itself into in the high-profile Phylicia Barnes murder case.

According to The Sun, the firm represents Daniel Nicholson IV, a city detective who is currently under investigation for misconduct and was also charged with assault in Baltimore County last year.  He happens to be the lead detective who investigated the disappearance and murder of Phylicia Barnes.  Nicholson's credibility in the Barnes case will be at issue every step of the way.

Yet when Michael Johnson was recently arrested for the murder of Barnes, there was Mead, Flynn & Gray, challenging the police evidence and arguing that Johnson be released on bail.  It's a blatant lapse of ethical judgment.  Perhaps the publicity and money to be earned from the case blinded the firm's attorneys to their higher duty.

The Sun wasn't blind.  And when asked about it, Johnson's other attorney, Russell Neverdon, suggested that Mead, Flynn & Gray will not participate in future proceedings.   It's a no-brainer that shouldn't even have come up. 

The prosecution isn't putting its best foot forward, either.  For some reason State's Attorney Gregg Bernstein has entrusted this case to one of his least effective trial attorneys, one who has long lacked a reputation for hard work.  

It's the same prosecutor who lost the case against Eric Stennett for murdering Police Officer Kevon Gavin in 2001.  After fleeing the scene of a shooting, Stennett sped through city streets at 80 m.p.h. and crashed into Gavin's police cruiser, causing a fiery, fatal explosion.  

While there were multiple problems with how the police handled evidence in the shooting and crash, even the defense attorney conceded that Stennett was at least guilty of manslaughter in the officer's death.  But the jury acquitted him completely, stunning everyone.  

More recently, in 2010, the same prosecutor tried a murder case against a city police officer who shot a fleeing theft suspect in the back.  Another acquittal.

With this prosecutor's dismal record in high-profile cases , Bernstein is taking a big chance.  Maybe he expects that Phylicia Barnes is so sympathetic a victim that a jury will be loathe to let her accused murderer go, whoever prosecutes.   Maybe he will assign a very competent, meticulous prosecutor to second-chair the case.  

But why take any risk?

 

Judge or First Lady?

We can count on the Baltimore Sun to publish a fawning piece on Katie O'Malley every few years.  How she raises her children while being both judge and mayor's wife ...how she does it as the governor's wife...with continuing installments to come.

Quick answer:  she's got plenty of help, including being driven to work in a big, gas-guzzling Chevy Suburban, and having a job that gives her lots of free time.  For example, at Central Booking last week Judge O'Malley arrived one day at 9:20, had no work until 11:00, spent less than two hours on the bench, and was done for the day. It's a great gig.

The latest Sun puff piece (March 5) paints Katie O'Malley as one who "fights for those on the outside."   The evidence, aside from the puffery, centers on one real issue: the gay-marriage bill, drafted by her husband the governor.  Her "fight" boiled down to one speech.

But oh, what a speech.  Made to a national gathering of gay rights advocates, in the middle of a local political debate over her husband's bill, O'Malley called legislators who had changed their minds about voting for the bill "cowards," making it crystal clear that she was engaging in "partisan political activity" that is prohibited by judicial ethics. 

Katie O'Malley is every bit as politically ambitious as her husband, reveling in her role as First Lady.  And that's her right.  But not when she is also a judge.  That job comes with restrictions, namely, her duty to remain impartial.  She can't use "equal rights" as a cover for wading into political debate.  She certainly can't expect anybody accused of beating up a gay person to anticipate a fair hearing or sentence from her.

O'Malley became a judge when her husband became mayor of Baltimore, even though she was deemed unqualified just one year before.  That's how the system works.  But O'Malley holds her judgeship dearly to define her own identity and achievement.  When word reached her that a prosecutor had referred to her in an internal e-mail as "the mayor's wife" she called him up and chewed him out.

Yet when she was assigned to Early Disposition Court, the program her husband had promised would cure the criminal justice system, she revealed her lack of independence.  In meetings to address the court's problems, having zero experience both as a judge and in Early Disposition Court, O'Malley rudely dismissed any idea that the program might be too conceptually flawed to work.  (It was and it failed.) 

O'Malley wants it both ways.  When she apologized for her political speech, it wasn't for violating her ethical duty to avoid partisan politics.  It was for hurting people's feelings, while insisting that she would never "back away and say I don't support equal rights for all our citizens."

She never should have said anything from which to back away.  As a judge, O'Malley should demonstrate her commitment to equal rights in her courtroom decisions, not on the  national political stage her husband created.  She should have been doing her judicial duty on the bench the day the gay-marriage bill was signed.  Instead another judge covered for her while she was photographed in Annapolis, basking in the accolades by supporters of her speech. 

As for that speech, Katie O'Malley's use of the word "cowards" is particularly ironic since Martin O'Malley was not nearly so courageous about gay marriage before Governor Andrew Cuomo took the lead on the issue in New York last year.  After Cuomo's success, Martin used the issue this year to get himself all over the national news and talk show programs.  Ambition, not courage, drives Martin as he continues to lift his national profile.  Eventually Katie's will follow, too.

But Katie's support for gay marriage or any other political issue, whether it stems from political or personal motivations, has no place in the public forum while she sits on the bench.  If she wants to get out there and mix it up, that's fine.  But she will have to choose which job she wants more, First Lady or judge, because a politically active First Lady cannot also sit impartially in judgment of others. 

A Well-Intentioned Mess

Well, our legislators can't help themselves.  They can't just amend the Public Defender's Act to keep taxpayers from spending unnecessary money, they want to mix in other issues and attempt to make it bullet-proof against a future lawsuit.

Their intent is good.  But drafting on the fly is not.  

Thanks to the abdication of the governor, they're on their own in trying to be both fiscally responsible and fair.  But they don't have to do it all at once. 

The Black Caucus wants a quid pro quo for its support: force police officers to issue more citations, an alternative to sending defendants to a commissioner for a bail determination.  I am sympathetic to the intent, but wary of a quick bill that could actually do more harm to their constituents.

Gone, for example, may be the statement of probable cause, which provides defendants the alleged facts behind the charges.  Identity fraud --where defendants give false names to police officers, resulting in the arrest of innocent people when defendants fail to show up court--may increase without proper safeguards.

One bill allows officers to write citations for crimes that carry three-year penalties, and then lists 31 exceptions.  Enough said.

The Senate wants judges to review commissioner bails within 48 hours, a decent idea in theory.  It would eliminate the weekend waiting time, making District Court judges work one weekend day and two days over the Thanksgiving break (since the judiciary awarded itself an extra paid holiday on the Friday after Thanksgiving.)

I hear the judges are screaming about this, a bit ironic in view of their ruling that attorneys should work around the clock.  But they'll be sure to take of care of themselves, like putting in an hour or two on a weekend day and taking another full day off to compensate. 

But the 48-hour rule could have a significant consequence everywhere else. Unless some new, creative procedures are used, courthouses in every county will have to be opened and secured on weekends, prisoners transported, and clerks and attorneys staff the courts. Everyone will put their hand out for more funding.

One of my biggest beefs about government is the reflexive request for more money, rather than inventing new procedures. I'll bet that all the agencies involved can think of better, low-cost ways to handle faster bail reviews, if given the time and direction to do so. 

I have other questions for legislators, such as their proposed law that anything a defendant says to a commissioner is inadmissible in court.   Suppose a defendant threatens a commissioner after getting a bail he doesn't like? Inadmissible?

How about the requirement that if a prosecutor, police officer or defense attorney provides information to a commissioner, the other "party" has to be notified. Doesn't this imply that a defendant then has a right to an attorney before the commissioner?

And do legislators really want city prosecutors to stop making written bail recommendations on violent and gun-toting defendants and possibly let them hit the street before a judge reviews the bail?   The purpose of the original lawsuit was to keep more non-violent offenders from being locked up because they were poor.

Delegate Curt Anderson made the most sense when he told WYPR, "We're hit with this in the middle of the session. There's a lot of people to talk to and you really can't solve it in a couple of weeks or even a couple of months."

So here are my recommendations to the General Assembly:

(1)Pass an emergency amendment of the Public Defender's Act to extend the right of representation to bail reviews only. Period.

(2) Forget the task force to "study the Laws and Policies Relating to the Representation of Indigent Criminal Defendants by the Office of the Public Defender" that will just produce a gaggle of generalizations. 

Instead, create a task force of local correctional agencies, the judiciary, prosecutors, police and the Office of the Public Defender and ask them very specific questions, with a deadline before the next session:

(a) How can we shorten the waiting time for bail reviews over weekends at no cost? (I can supply them with ideas if they have none.)

(b) How can we issue more citations with a process that is consistent with public safety, protects defendant rights, and ensures the integrity of the criminal history record system?

(c) What if any additional safeguards are needed to protect defendants and public safety at commissioner hearings?

Finally, the General Assembly needs its own ability to access and analyze criminal justice data. I once proposed an independent data center, and am doing so again, this time placed within the General Assembly.  This will give them some real context for their decisions, like how many bail reviews we actually need on weekends. 

The Judiciary and Executive Branches will hate it, because they like to control the data. That's why it would be perfect.

When Judges Get Practical

Today the Court of Appeals will have a chance to come down out of the clouds and get real.  Perhaps even as real as the judges get about their salaries. 

The Court ruled last month in DeWolfe v. Richmond that the poor must be represented by free lawyers when they appear on criminal charges before court commissioners.  Five of the seven judges didn't care that no funding or procedures yet existed to comply with their ruling and loftily declared that they could not wait "even for a brief time." 

Today they will be asked to reconsider and hold off implementation until August.  That would give legislators time to find the $21 million that Public Defender Paul DeWolfe wants for more lawyers, among other things.  

If the Court again refuses, it doesn't mean that DeWolfe will immediately comply, because he can't.  We just will likely see more lawsuits at public expense.  Such practical issues apparently don't concern the judges.

Unless it comes to their salaries.  This year the Judicial Compensation Commission wants to give judges $29,000 raises, phased in over four years.  Not only will these raises jump their salaries but their pensions as well.  The lowest-paid judges (at $127,252) retiring after 16 years are currently entitled to an annual pension of about $84,750.  If the raises go through, that pension jumps to $104,000.  Chief Judge Robert Bell's pension, which totals nearly $121,000 should he retire now, would rise to $140,000 with the proposed raise.

And if the Legislature fails to act on the Commission's recommendations the new salaries (and pensions) automatically take effect, thanks to the way Maryland law is written. 

The judges and commission members offer a number of reasons to support these raises, a subject I plan to discuss at more length.  But contrast the Court's lack of interest in the impact of its ruling in DeWolfe with this very practical justification for their raises, as articulated by District Court Chief Judge Ben Clyburn and quoted by MarylandReporter.com:

“We bring in tons of money. Compared to the lottery, we bring it in.”

In other words:  "Pay the men and women who raise so much money imposing fines and costs in the courtroom."   It's an economic rationale entirely missing from the high-minded DeWolfe decision.

When I recently attended parking court I suddenly saw the proceedings with new eyes.   I noticed that the judge, even when she wanted to give defendants a financial break, always imposed the full amount of the court costs.  Cha-ching!  Money in the bank for judicial raises and pensions.  Every guilty verdict with a fine imposed created more reasons to pay our judges. 

Maybe the judges can also pay for the $21 million in free lawyers with more guilty verdicts and higher fines and costs.  Hey, it's more lucrative than the lottery, right?  

Cha-ching!

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. 

***********************************************************************************************************

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.