Monday, September 30, 2013

Cleaning up the Court of Appeals' Mess

Maryland's Court of Appeals sure did make a mess of things.  It ruled that poor defendants must get free lawyers when they see commissioners to have their bail set.  I have written more than once about why--despite what sounds like a 'good idea'--this ruling is woefully misguided.

If this was a decision without an economic impact, that would be one thing.  However, if legislators try to fit this ruling into the current bail system, taxpayers will suffer huge financial consequences.

Right now District Court commissioners process defendants 24 hours a day, 365 days a week.  They do this to give defendants the chance to get out of jail as quickly as possible, either by releasing them on their promise to come to court or by setting bail.  Only those who can't make bail are then seen by judges on the next court day.

But if we now add free lawyers to the process, we have to staff every single booking center in the state with public defenders...24 hours a day, 365 days a year.  Yikes!  And the local jails will have to find room for these lawyers to meet with all arrested persons to find out if they are poor and then to attend the commissioner hearings. 

What an economic and logistical nightmare.  But as promised in my last blog, I have the solution. Maryland lawmakers should amend the law to make judges, and only judges, set bails.  

You see, the rules for processing arrested persons were made by the Court of Appeals.  It decided that defendants have to be seen within 24 hours.  (Many states use 48 or 72 hours, though I like 24 hours.)   And it decided that commissioners would do the dirty work of the court, sitting in jails and working around the clock.  Now that is has found a flaw in the system, it should solve the problem

If Maryland lawmakers revoked the power of commissioners to set bails, judges would have to do it.  And I guarantee they won't be sitting in little rooms in local jails 24-hours per day,  365 days a year.  So we won't  need to hire lawyers to do that, either.

Instead, bail determinations will be held in open court, either with the defendants present or through remote video hook-up.   The Public Defender's Office is already funded for bail representation, and its lawyers will be readily available.  No economic nightmare, and better representation for defendants.

And this plan has so many other advantages.  Critics have long complained, with justification, that commissioners are not equipped to do what they are charged with doing. Determine probable cause?  They are not trained lawyers. Advise defendants of their rights to representation?  The Court of Appeals has ruled that the advice that commissioners give to defendants doesn't legally count. Advice only counts when judges give it.  So let them give it. 

The private defense bar should like this plan.  It gives them a more realistic opportunity to represent clients at an earlier stage.  And prosecutors can more easily and cost-effectively provide their input when bail-setting is done in open court.

The district court judges will finally earn their pay.  Right now they are very cozy in their part-time jobs as glorified magistrates with little meaningful work to do.  They review bails, advise defendants of rights, postpone cases, and put people on probation.  Instead of getting away early every day for shopping or golf, they can set the bails.  

And they will then have the direct responsibility for evaluating and improving Maryland's bail system, one that currently--and will continue under the Court of Appeals ruling--to discriminate against the poor.  The commissioners who currently set the bails have little, if any, guidance on how to do it, and bails are wildly inconsistent.  Judges only "review" bails that defendants can't post, and they use the commissioner's bails as a starting point to go up or down.  If they had to set the baseline, they would have powerful motivation to devise a thoughtful and rational system that protects public safety while ensuring equal treatment for the poor. Instead of ordering other people to protect the rights of the poor, they would have to do it.

Will commissioners have to lose their jobs?  Nope.  Instead of setting the bails, they can be very useful in gathering information that will assist the judges in their decisions, such as gathering criminal records and verifying personal information.  They could prepare lists of defendants who they recommend be released without posting bail, for judges to handle first and quickly.

What's the downside?  Well, although this plan will save millions, agencies will still project their costs in a vacuum and grab for money, as usual.  But judges and public attorneys working at the district court level are already underutilized.  If the new system strains their resources, let them prove it with statistics, bench hours, and especially an independent audit.  

More fundamentally, it would be totally premature to award anyone any money at the outset because we don't know what the system will look like.  Once the General Assembly shifts the burden of setting bail to the judges, the Court of Appeals will have to make new rules.  Lawmakers must resist the temptation to make the rules themselves. They will just make a new mess.  Let the judges of Court of Appeals clean up the mess they made. 

And if, while they figure out how to do that, defendants are committed to jail by commissioners without having representation, those judges can do what they would do to anyone else who failed to obey their orders: they can hold themselves in contempt.


Technical note for Maryland lawmakers:

1.  Amend Criminal Procedure 5-201 by adding a new (a)(1) that state: "Notwithstanding any other law or rule, only a judge of the District Court or a Circuit Court of Maryland may determine the conditions of pretrial release." Renumber the current (a)(1) to (a)(2) and eliminate the words "district court commissioner."

2.  Amend Courts & Judicial Proceedings to eliminate 2-607(2) and amend the language in (3).

Thursday, September 26, 2013

The Sinkhole that is Criminal Justice Reform

If I were an ordinary citizen hearing about the recent Court of Appeals decision to require lawyers for the poor at commissioner hearings, I would think, hey, that sounds fair.  

But as a veteran of decades in the criminal justice system, I recognize it for what it is: the perfect illustration of why when it comes to reform, we only spend money and accomplish nothing.

To set the stage: Court commissioners decide within 24 hours after a person's arrest whether to release the person pending trial or set a bail. This process has historically resulted in the quick release of roughly half of those arrested. Those who can't post a bail go before a judge to have their bail reviewed, where they can be represented by the Public Defender's Office if they choose. The Court now says that free lawyers also must be available to the poor when commissioners make their decisions.

Here is what is wrong with the Court's ruling:

  • It eliminates a disparity that never existed. Neither the poor nor the non-poor get lawyers at commissioner hearings because they happen too fast and at all hours of the night. (Only the very connected and well-off may be able to arrange it. But these are the people who always have and always will have more rights than everybody else. )  
  • It will keep those who used to be released quickly in jail longer.  The process will inevitably slow down as defendants are interviewed by lawyers and as prosecutors join in for contested hearings.  
  • It will discriminate against the non-poor.  If only the poor have the right to representation at commissioner hearings, what about the non-poor who can't get a lawyer on 24-hours notice? Or will, as a practical matter, we taxpayers have to pay for every single arrested person to have a free lawyer?
  • It does not solve the problem that the advocates for the decision wanted to solve.  The lawsuit promised that lawyers at commissioner hearings would release more poor people and save on jail costs.  No, they won't.  Lawyers will have precious little information to offer commissioners so soon after an arrest. And arrested persons will be held longer waiting for a bail hearing.
So why will the State of Maryland have to pay many millions of dollars for a more cumbersome system that holds people in jail longer, solves an inequity that did not exist, and fails to solve the underlying problem of holding poor people in jail because they are poor?

Because this is how we do criminal justice reform in Maryland. Over and over and over.

Usually it starts with a 'good idea.'  This idea can come from an elected official blinded by enormous ego and ambition--like Martin O'Malley--or it can come from a zealot blinded by ego and ideology, as in Doug Colbert of the University of Maryland law school, the man behind the lawsuit.  In either case, the 'good idea' comes first, and justifications are mustered up afterward, usually without regard for facts.

For example, Colbert is well-known within criminal justice circles for distorting and misrepresenting facts and conducting biased studies that always support his thesis.  Heck, the man is so blinded that he used a drug dealer as his primary example of a system that discriminates against the poor.  This drug dealer--which he failed to tell judges in his briefs--immediately posted a hefty bail after his commissioner hearing and hired a private attorney to represent him. That sums ups Colbert's advocacy in a nutshell.  He can't be trusted.

So the 'good idea' will lack unbiased empirical data to support it. But because it sounds good --lawyers for the poor!--it eventually, with persistence, gains traction.  A good politician can get the legislature to bite, or a persistent zealot can get a skilled lawyer to take the case to the courts, like the Venable attorneys who helped Colbert (and who mostly practice law in a comfortable world far away from Maryland's jails and district courthouses.)

And when a case reaches Maryland's Court of Appeals, it's anybody's guess what will happen.  The first time it heard the case, the Court said that Maryland lawmakers intended to provide free lawyers at commissioner hearings.  When the General Assembly cleared that up by passing a new law, four judges then said that Maryland's Constitution required free lawyers, while three said it didn't.  Of course, the constitution was written before commissioner hearings existed, so the right had to be read into the constitution. And the four judges made sure to read it into Maryland's constitution, because it doesn't exist under the U.S. Constitution.   

The judge who wrote the decision was John C. Eldridge.  Here's how good Eldridge is at interpreting Maryland's constitution:  it plainly and clearly says that an elected member of Maryland's legislature must have "resided" in his district for at least six months prior to his election.  Eldridge wrote that the member only had to intend to reside in his district.  Any little pretense associated with that intent was good enough, even if the senator or delegate went home to his wife every night in another county.  I thought we were rid of Eldridge and his interpretation deficiencies, as well as the political judge Robert Bell, but both came back out of retirement to haunt the state with this decision.  

What makes bad judicial decisions worse than bad laws passed by elected officials is that judges have no accountability to citizens. They sit smugly and arrogantly on top of the hill, above all practical considerations like economic consequences, when in fact they are politically and ideologically influenced like anyone else.

But I have a solution for the mess they have just made.  A just and practical solution that will save taxpayers millions.  Not only that, it will clear a path to the real fix for the problem of locking up the poor because they are poor: bail reform.

Stay tuned.  

Monday, September 23, 2013

Ignoring O'Malley on Crime

I knew O'Malley planned to attend September's Baltimore's Criminal Justice Coordinating Council (CJCC) meeting after he crashed their meeting in July.  Both times he hoped to get headlines for himself about the city's escalating murder rate, and both times--at least at first--he failed.  

The Baltimore Sun apparently didn't attend the July meeting, because its reporters had to read the minutes to find out what he said.   That's how relevant the CJCC is to criminal justice.

But the Sun didn't bite after the September 11th meeting, either.  Instead it led with a story about his promise to clear the backlog of gun registration background checks, a duty performed by O'Malley's state police. Good for the Sun, I thought.  Focus on his accountability as governor.  No need to post a blog.  

But a week later the Sun gave in, belatedly trumpeting O'Malley's prescription for Baltimore's murder rate, which sounds a lot like his prescription when he became mayor: arrest, arrest, arrest.  The story was nuanced, and strove for balance, but O'Malley got the headline he craved.

O'Malley, as I have written before, likes to take credit for any criminal justice advancements. His promise for 'zero tolerance' in Baltimore shot him onto the political fast track, electing him mayor.  Now that he is an angling to be president, he is returning to his roots by congratulating himself on his crime record, while simultaneously and shrewdly distancing himself from the current city regime.  

But let his record on criminal justice as mayor be clear: through several poor hires and micromanagement, he denuded the police department of experienced leadership, a blow from which it has yet to recover.  He invited a major civil rights lawsuit and many private ones that cost the city dearly.  And the most significant and sustained drop in murders came after he left the city, and after the arrest practices he instituted were abandoned.

And what did he do as governor?  Well, he ordered the probation and parole department, which is under state authority, to focus resources on violent offenders.  That wasn't an original idea with him, but still a good one.  But what impact has it had?  Has he had anyone--by which I mean an independent, professional person--study the results of the program for its effectiveness?  

We do know that his management of the state correctional system has been atrocious, most conspicuously, allowing a gang leader to operate out of Baltimore city's jail while fathering multiple children with correctional officers.  What accountability did he take for that?  Zero.  He merely threw the jail's security chief to the wolves, retaining the senior leadership that created the culture which allowed such blatant corruption.  But he wants to lecture the city about crime.  

I remember the first time I saw Martin O'Malley at a CJCC meeting, when he was a city councilman. Then-delegate Peter Franchot was there, doing what O'Malley was to do more ostentatiously later: grandstand at the CJCC to promote his career.  O'Malley introduced himself as a councilman from Baltimore city "out of Montgomery County" (where Franchot was from and O'Malley grew up.)  He never missed an opportunity to promote himself, even then.

Then O'Malley proceeded to announce one of his solutions to city criminal justice problems. The concept was fine, and progressive, but the mechanism was totally flawed and promised too much of a panacea.  That's O'M's m.o.: take a little bit of knowledge and make himself dangerous.

He had the solutions for everything, except he didn't, and he wouldn't listen to those who knew more in his rush to push his political career.  He bullied to get his way, and when he failed he still claimed victory through sheer chutzpah and lack of opposition.  O'Malley's forays into criminal justice were always about getting himself to the next office.  And nothing has changed now.  

So when O'Malley speaks on crime, don't listen. 

Saturday, July 13, 2013

Gods in Little Black Robes

The Maryland Court of Appeals sure made multiple headlines last week.  After a ruling from our highest court last year, we are now learning that dozens of convicted felons from the 1970s are entitled to new trials because of erroneous jury instructions. As a practical result, 13 murderers have already been released from prison, and the cases of others are up in the air.  It's an incredible, nearly impossible burden on prosecutors to retry cases that are so very old. 

Judges don't care about this.  But they should care about their own burden to be prompt and accountable.  How is it that only now is the Court of Appeals taking action?  

A glance at the opinion reveals the following about the case filed by Merle Unger, a convicted murderer:
  • A few years after Unger's 1976 conviction, the Court of Appeals changed the plain words of the Maryland Constitution about jury responsibilities to mean something else.  Unger's trial judge (like many others) had relied on the original words.
  • Unger filed a Post-Conviction petition 20 years after his conviction. Post-Convictions give defendants another bite at the apple, usually arguing that their lawyers were bad and deprived them of a fair trial.
  • Nothing happened while Unger was apparently locked up in another state.  The case was taken up again in 2006.
  • Between 2006 and 2012 the case went back and forth between the trial court, Court of Special Appeals and Court of Appeals over technical arguments about whether Unger had waived his rights.  After concluding that he had not, the Court issued its decision.
And there we have our legal system in "action."   

Law school taught me that most criminal trials are overturned because of errors in jury instructions.   Throughout a trial, but mainly at the conclusion of all witness testimony, judges provide instructions to juries about what evidence they can and cannot consider, definitions of crimes and reasonable doubt, and their responsibilities as jurors.  Trial lawyers fight over what instructions the judge should give because they are important. 

But in practice, what is more important than juries actually understanding instructions is the legal wrangling that takes place after a conviction.   Lawyers who specialize in appeals pour over transcripts, looking for wording errors and omissions that could open the way to reversing the verdict. Judges read written briefs, hear arguments, and write lengthy opinions over the meaning of a few spoken words.

Jurors, however, don't have the same privilege.  They usually hear the instructions once, and never get them in writing.  Yet all 12 persons are supposed to make perfect sense of them, understand them in a uniform way, and apply them appropriately.  Who are we kidding?  In reality, little to no effort is made to ensure that jurors really understand their instructions.  The instructions just become fodder for multiple appeals. 

We have to live with that.  But no one should have to live with a court system that takes decades to decide that an erroneous jury instruction requires a new trial.

A second Court of Appeals decision threw out a mandatory sentence of five years without parole for a felon who possessed a handgun, ruling that the trial judge had to impose a more lenient penalty instead.  Prosecutors are justifiably worried that this could deprive them of what has been an effective weapon against violent criminals who possess handguns.

But the more worrisome factor for me, once again, is the accountability of the courts.  The appeal in the case, according to The Sun, was heard in 2005, eight years before Chief Judge Robert Bell wrote and issued the decision.  His ruling was a fitting farewell for the retiring judge who always distrusted the even-handedness of the criminal justice system.

But Bell wasn't fair himself.  For if he is right in his legal reasoning, why did he allow all those sentenced to the mandatory five years since 2005 to serve those sentences? What duty did he have to file a timely decision in the interest of justice?  Apparently, none.

I have never been particularly impressed with the work of our appeals judges, with a few significant exceptions. Inconsistent opinions, blatantly political decisions, and just plain shoddy legal reasoning litter the landscape of Maryland judicial precedent.

And now the Court of Appeals has told us that they can issue opinions whenever they want, without accountability for unreasonable delay and the impact of that delay.  It reminds me of what my first boss told me: "Judges are gods in little black robes."  

Thursday, May 30, 2013

O'Malley's Toothless Task Force

Governor Martin O'Malley, attempting to ride out the scandal in Baltimore's detention center with his presidential chances on track, announced this week the creation of a new task force, a "powerful new weapon in our arsenal" to combat corruption.

Was there ever an "arsenal' to begin with?  He didn't fight the corruption in Baltimore's jail with in-house security staff, and I haven't heard of any efforts by the Maryland State Police, which investigates crimes in the city jail. O'Malley apparently had no ammunition in his arsenal, and was forced to turn to the feds to clean up the mess.  

He asked us to congratulate him for that.   Now he wants us to believe that his task force has some purpose other than providing the appearance of action. 

O'Malley appointed six investigators from the Department of Public Safety and Correctional Services, the agency that allowed the corruption, and three from the Maryland State Police, which could have investigated at the outset.  The heads of both agencies, Gary Maynard and Marcus Brown, were appointed by O'Malley, and both should have been doing something to stop the corruption long before the feds were needed.  

The person coordinating the task force is a Baltimore prosecutor with no particular credential other than to serve on a Maryland State Bar committee that seeks to improve conditions for prisoners.  But she works for city state's attorney Gregg Bernstein, who owes O'Malley big-time for putting up half the rent money for his new offices in downtown Baltimore.  In fact, he hosted O'Malley for a tour of his floors at the Suntrust Bank Building shortly before the scandal broke.  

The task force will likely lack access to important information until the U.S. Attorney's Office completes its criminal proceedings.  And Maynard,  O'Malley's Public Safety Secretary, won't be waiting around for a task force report to come out in a year or two.  He's got to act now to reform the city jail, and to examine what may be going on in the other state prisons.

Yes, what a "powerful" new weapon O'Malley has now.   The task force allows him to pretend to be taking action.  It provides a tool for controlling the discussion, as well as to preempt legislators who will conduct their own hearings next week.  (Not that we can expect much from them, either, with the politics of our state.)

But as a weapon against corruption, the task force is a toothless tiger, the cynical creation of a governor who refuses to take responsibility and who places his own appearance and ambitions above all else.  

Tuesday, April 30, 2013

O'Malley's Corrupt Jailhouse

In the midst of the scandal over a gang's control of the Baltimore City Detention Center, I have been waiting to hear what Governor Martin O'Malley is going to do about his man Gary Maynard.

Maynard heads up the state's correctional system, and the city detention center comes under his control.  He hired Wendell "Pete" France, a former city police commander, to manage it, and the two of them report every month to the city's Criminal Justice Coordinating.  Some have praised Maynard for calling in the feds to investigate the jail that he runs.  And according to a rather laudatory article in the Baltimore Sun, he is supposed to be the man to fix the problem that was his job to prevent.  

I remember Maynard's presentation to the Coordinating Council several years ago about a program he created for prisoners to clean up neglected cemeteries.   He later suspended the program because inmates were arranging to have drugs hidden at the cemeteries for them to smuggle into prison.  I never heard Maynard report that to the council.  And now we have a major example of his inability, over a period of years, to manage the city's jail without drug corruption.  Yet he is still walking around with his job intact while making others take lie detector tests.  So where is Martin O'Malley, the man who hired and has always praised Maynard?

Characteristically, as federal prosecutors were announcing indictments of corrupt jail employees O'Malley was abroad, burnishing his credentials for a run for the Presidency.  That's what O'Malley is always doing.  The idea that he is taking the summer to consider whether to run for President is hilarious.  He's probably only waiting on Hillary's plans.  O'Malley has been running for President from the day he became mayor.  He exploited the 9/11 tragedy by running down to Congress and presenting himself as an expert on port security in order to gain national exposure, and has sought national attention at every opportunity since.

But this is a criminal justice blog, so let me return to my point:  that while O'Malley's attention has been turned away from Maryland, Baltimore's jail--his jail--belonged to criminals.   This from the man who launched his career by promising to be tough on crime, who promised "zero tolerance" as Baltimore's mayor.

What did those promises net for Baltimore?  An astonishing increase in arrests that alienated the African American community and resulted in an expensive lawsuit against the city.  The decimation of Baltimore's police department as he turned over one police commissioner after another.  Public, counterproductive fights with the state's District Court chief judge, the city State's Attorney, and the U.S. Attorney for Maryland.  He claimed responsibility for lowering Baltimore's murder rate, when that was due to the active involvement of the new U.S. Attorney, Rod Rosenstein--the same man who now is fixing O'Malley's problem in the city jail.  

Through the years of O'Malley's criminal justice failures he claimed success and got away with it.  He's a gifted enough politician that he will probably flick off this jail scandal, as huge and inexplicable as it is.  As I am writing this, O'Malley is already turning failure into success, claiming credit for rooting out corruption, when just a smidgen of competency should have prevented it. 

But he is no leader, merely a politician who follows prevailing winds and badly wants to be President.  As the former mayor of a city with a huge drug and crime problem, as the current governor of a state whose biggest city is still mired in drug-related crime, O'Malley could be showing the kind of innovative leadership that might actually leave a positive, indelible imprint in the lives of Marylanders.  He could be leading an effort to explore alternative solutions to the "war on drugs."

After the jail scandal broke Dan Rodricks wrote about the futility of that war.  On radio station WYPR this morning Joe Jones of the Center for Urban Families called for action to change our approach.  As a former prosecutor and Coast Guard officer, I have seen first-hand the failures of the war, and believe that Baltimore could be a testing ground for a new policy on drugs that would empty our jails, reduce crime, and end the corrupting nature of drug money. 

We need leadership to get that going.  Unfortunately, it won't be coming from O'Malley, whose priority has always been his own ambition.

Tuesday, April 23, 2013

The Unjust Arrest of a Raven

Like many of us I am a Ravens fan, and followed the hullabaloo over the arrest of newly signed linebacker Rolando McClain in Alabama with mild interest.  I have heard him condemned and called names (like "punk") on sports talk radio, and some have called for the Ravens to cut him.

Then I read the actual police report posted by the Baltimore Sun on line.  McClain's crime?  Disrespect of police.  

If you've never heard of that crime, it's because it doesn't exist.  On the streets, however, and apparently no matter where you live, disrespect of police calls for arrest.  It's what police call a "humble."

The Alabama police report states that police were called for a disturbance at a park, but when they got there the disturbance, if any, was over.  So they decided to disperse the large crowd of people.  As McClain walked by he said "F___ the police."  So they arrested him for disorderly conduct.  He protested that he was told to move on, that he was moving on, and he swung his arms as they tried to complete the arrest.  For that they piled on a charge of resisting arrest.  

What struck me immediately was how the officers so boldly stated that they arrested McClain for what he said.  Baltimore police would put something in there (true or not) about him disturbing the peace or hindering the police in their duties, which might actually give them probable cause to arrest. In Alabama police apparently feel emboldened to violate the First and Fourth Amendments with impunity.   

From what I hear, they are now scrambling to interview other witnesses, no doubt to come up with more evidence or charges to justify the arrest of an NFL player.  But had they let him walk by, as they should have, there would be no further investigation.  What a waste of time. 

The incident provides insight into the everyday tension between citizens and police.  Police have a hard job, and feel they need to enforce their authority in order to function effectively.  Citizens, rightly or wrongly, get mad at police, and feel like they should be able to express this.  How far they go in expressing their feelings determines whether they cross a criminal line.

Here, in the words of the police officers themselves, the line was not crossed.  But McClain faces the possible termination of his employment with the Ravens anyway because the incident comes on top of other arrests and problems.  A case of guilty based on background.  

The young man, who reportedly grew up in very hard circumstances, clearly has anger issues.  He needs help with his problem.  How far the Ravens wish to go to do that is up to them.  But it's too bad that the final straw may be the failure of the police to ignore an irritated McClain, and to arrest him illegally.

That's not justice.      

Tuesday, March 26, 2013

A Stupid Trial

What do you make of a story like the one published last week in the Sun, about a city police sergeant on trial for tape recording a judge during an argument over a search warrant? 

The police wanted to search a car in which the victim of an attempted murder was found, asking Judge Joan Gordon to sign a search warrant.  She didn't think she should be bothered about it on a Saturday night and argued with a police supervisor, who recorded their conversation without her knowing about it.

A technical violation of the law, yes, but a pretty trivial instance to put before a criminal jury, it seems to me. What are prosecutors trying to prove, exactly, beyond placating an offended judiciary? 

I once had a child sexual abuse case in which the mother of the victim recorded an incriminating conversation with the abuser.  I couldn't use the recording because the law prohibited the taping and any use of it, to the detriment of my case.  But I did not press criminal charges against the mother.  The police sergeant who did the taping in this case should have known better, and an administrative consequence is appropriate. But a criminal trial?   Sheeze...

The problem between police officers and judges over warrants has been going on a long time and should have been resolved ages ago.  That it continues and has come to a criminal trial should shame both the judiciary and the police department, but mostly, in my view, the judiciary. 

Baltimore city judges are supposed to take turns being "on duty" for one week at a time.  Since there are about 60 of them, this means they should have this duty less frequently than once a year.  The duty judge is supposed to be available for such after-hour needs as the review of search warrants. 

But judges and police have fussed about this ever since I can remember.  Judges feel that police bother them after hours for non-emergencies.  It's true that many, if not the majority, of search warrants are the result of investigations that take a period of time to develop, and are not emergencies.  However, police officers work shifts around the clock, so it's not possible to always prepare and present warrants during the judge's work day.  Since officers have to swear to the truth of what they say before the judge, and may need to answer questions, they can't just send a secretary in with paperwork for the judges to sign.

To minimize their own inconvenience, individual judges often make their own rules for reviewing warrants.  Many, for example, refuse to sign any "narcotics" warrants after hours, which they regard as routine.  My introduction to this came when police called me for help when a duty judge refused to review a narcotics warrant even though police were actively guarding a house from entry in order to keep a suspected stash of drugs from disappearing.  We had to search for another judge willing to do the job of the duty judge. 

To me the solution is simple: police officers should do their best to present their warrants during reasonable hours, while judges should resign themselves to the fact that for one week out of every 60 they will be reviewing warrants after they leave the courthouse.  They should just go home and be mentally prepared for the police to come over, not whining about officers interrupting them while they are out at dinner or the mall.  The judiciary and police department can easily establish a joint review panel to handle complaints about abuses by police officers and by judges.  The leadership for that should come from the judges, who hold the power. 

I once tried to show some leadership. When I supervised the Central Booking Division of the State's Attorney's Office, I volunteered my division, which worked around the clock, to evaluate whether the police truly faced an emergency situation before waking up a judge in the middle of the night.  This meant that I, personally, would be woken up much more frequently than any one judge when my staff called to consult me.  And that I, personally, would bear the brunt of judicial anger if they disagreed with my assessment.  Yet I volunteered.

The response I got from the District Court judges--the ones who work part-time--was that they would be happy to take me up on my offer, but that they also wanted me to read and review the warrants for probable cause.  It wasn't enough that I would prevent their being woken up for non-emergencies.  I had to do their job for them, to determine if probable cause existed before they could be disturbed. 

I declined their greedy request.  And these half-dozen years later, we have a poorly-regarded judge, Joan Gordon, arguing with a police sergeant over whether a weekend warrant could wait until Monday.  We have the sergeant, worried about what Judge Gordon might do to him, turning on his recorder so he could prove his version of events if needed, and now facing a criminal conviction and the loss of "everything" for doing so.  

And we have a small glimpse into the lazy, egotistical, dysfunctional world of key players in criminal justice system.