Thursday, July 17, 2014


Here is the highlight of my campaign for judge:

What a life-affirming moment, helping that mother duck get her nine ducklings across six lanes of traffic at Lee and Light Street in downtown Baltimore a few weeks before the primary election!  But what does that have to do with anything?

Last January I was getting ready to shut down my criminal justice blogging. I had written on most every topic, and the same old issues and themes were just repeating themselves.  And after six years away from the state's attorney's office, I felt I was losing my special insight into the system.  I didn't want to be just another mouth spouting off opinions.

Then I got a message from a friend asking me to run against Judge Alfred Nance, and I agreed.  I lost in the primary last month. I expected to lose, and perhaps that’s one reason I did.  But let me summarize once more my thoughts on those responsible for Nance’s continuance as a judge.

Governor Martin O’Malley. O’Malley had no business reappointing Nance. But that’s O’Malley, whose focus first and foremost is himself.  He built his early notoriety as a city crime fighter, using smoke, mirrors, Clintonesque personal energy, and the vacuum of other leadership. But he who deceives or sells out the public in small matters will do so in large matters. America, beware.

The Maryland Bar. By “bar” I refer to all the lawyers in the associations and committees and commissions who run the judicial selection, election and disciplinary process. Rather than hold judges to higher standards, they provide them more protection than ordinary employees. They won't distinguish between protecting the legitimate exercise of judicial discretion and shielding judges who misbehave and even commit crimes. Once a judge, always a judge, that’s their motto, and the people be damned.  They failed to remove Nance 13 years ago for harassing women, and watched him continue to misbehave.  After his re-appointment by a governor too busy running for president to care or risk controversy, they poured  money into Nance's re-election. They even lied for him, calling him “tested and trusted.”

The Media. What a difference in the media between my race for judge 16 years ago and now. Back then, even though I had not named my targeted judges and nothing negative was yet in the public record about them, I was interviewed by the editorial boards of the Sun and the Afro-American and by a reporter for the Jewish Times. Dan Rodricks of the Sun wrote a helpful column. 

This time, with Nance's rich public exposure and other leads to explore, nearly nothing was published about the contest subsequent to my announcement last February. The Sun printed one short article in June which briefly mentioned that Nance "once received an official reprimand for his treatment of women." It never touched on his continuing harassing and intemperate behavior, or explained why politicians blindly endorse the sitting judges. Even Rodricks, who complained in two post-election columns about citizens who don't vote, remained silent.  I called TV reporters and e-mailed editors, to no avail.  I shudder to think about the lack of media attention to issues of greater importance than Nance.  It's scary to realize how inadequately the press now covers local government.

The Voters. I was amazed how many people popped out of the woodwork to express their dismay with Nance after they heard I was running, people who had sat as prospective jurors in his courtroom: a man at my local dog park, a woman at work, a colleague of a friend, etc. None of them knew each other and all had the same opinion of Nance. Had more voters seen him in action, he'd be gone.  Had more voters done just a little bit of homework, he'd be living in retirement now.  But voters prefer to be fed their information, and they ate up the mailings from the Sitting Judges, who used Elijah Cummings as their champion for Democratic voters and Helen Bentley for Republicans. The man from the dog park called up Bentley and asked her why she was supporting Nance. She admitted that she didn’t even know him.  Most of us are just too busy to make a call like that, to work at voting.  Impressions, assumptions and inertia guide our decisions. As the saying goes, in a democracy people get the government they deserve.

The Candidate. Most successful candidates really want the jobs they seek. I saw it as a duty, albeit self-appointed. Last time I ran, the sitting judges pressured the state's attorney, my boss, to make me take a leave of absence from work, something she had originally assured me I would not have to do.  So, unpaid and with nothing else to do, I walked neighborhoods and raised a little money and printed yard signs and literature and went to farmer’s markets and candidate forums. I lost to the money and influence of the sitting judges. 

This time I had a teenage son and an aging mother and a full-time job, so I primarily used direct mail to a targeted audience that I could afford to reach (with my own money and a couple of contributions.) I lost again, though it was gratifying to wake up to the Sun's "Circuit Court races too close to call."  In hindsight, I could have done this or that and maybe gotten a few more votes to at least get past the primary.  Raising money is the number one thing, both to reach voters and get the media to take a candidate seriously. (No money, no press.)  But I couldn't even ask a prospective voter for a glass of water on a blazing hot day, let alone for money. Not a winning characteristic for a candidate.

And now back to the ducklings. I don’t know what happened to those nine after they reached the Inner Harbor. They were so tiny! Some surely perished, maybe most of them.

But I tried. That is what I have always done. I have tried to do my best in every endeavor. I have tried to make a difference and tell the truth.   I risked my own career to say and do what I thought was right, and made enemies of people who didn't like what I said or how I said it, even when they admitted the truth of it. As a supervisor once told me, I didn't have a self-preservation bone in my body. I have made mistakes, and not always expressed myself in an ideal fashion.  One friend likes to say that our strongest attributes can also be our Achilles heel, and that probably applies to the passion that has always driven me.

But I am happy with both the journey and my destination.  I have learned so much that would have escaped me had I stayed in the box. I would rather be me than two judges I know who became closely tied to the O’Malleys. These two were indebted, personally and professionally, to a state official who helped them early in their careers.  When as governor O’Malley fired this official, neither of them could bring themselves to call and express their condolences.  And that is the way most of the world works. 

In my experience, it's not a particular program, or process, or structure that makes a system work well. It’s the people who run it and work in it. And where people are self-interested, lazy, or afraid, mediocrity reigns. And when there's mediocrity in leadership, nothing changes.

In 1998 a man named Sam, who judging from his voice was an elderly African American, called me up to ask why the sitting judges had crossed my name off their sample ballot (their standard trick.)  I started to explain that they were picked by the establishment, and called themselves “trusted,” but those of us in the system knew that wasn't true. He stopped me: “Say no more. You got my vote.” After I lost, I received flowers from some friends with a note: “And the winner is…the one who got Sam’s vote.”

Those who believe victory is everything would call me a sap or a loser, but I really did prefer Sam's vote. Sam made the effort to call. Sam understood that the establishment was not to be trusted in whole, and was willing to shake it up. I was proud to have his vote.

And I treasure friends like the ones who sent me that note, those who will never abandon a friend for self-interest or politics or differing points of view.  Each of you know who you are.

So, knowing that I have done my very best to serve the public all my life, I now retire from the world of criminal justice.  No more tilting at windmills.  

But I will still be tending to ducks whenever I can.

Wednesday, July 2, 2014

Postmortem for a State's Attorney

"What's that Bernstein doing anyway?"

Every time my mother asked me that question over the past few years, I knew Baltimore state's attorney Gregg Bernstein was in trouble with voters.

My mother reads the paper and watches the news regularly. But Bernstein wasn't penetrating her consciousness.  She knew I had supported his election when he upset incumbent Patricia Jessamy in 2010, so she turned to me for insight. Unfortunately, I had none to give her.

For me, the warning bells began the same month he took office.  Bernstein seemed to listen to just one adviser:  his wife, Sheryl Goldstein, chief of the Mayor's Office of Criminal Justice, who unofficially ruled over the police department.  Bernstein let Goldstein choose his closest staff.  My friends jumped on me for criticizing him for this so early, but I felt a deep unease.  It was very unsettling, having the police choose the state's attorney's leadership.   

In listening only to his wife, Bernstein failed to heed anyone with intimate knowledge and long experience with the prosecutor's office.  He did what Martin O'Malley did as mayor:  run up to New York to import a new strategy into Baltimore.  I personally implored Bernstein to talk with Jim Green, an attorney in the police department and a former city and federal prosecutor.  Green was a goldmine--a career public servant who defined the word "service," who was always working on creative ideas based on his broad experience.  Green (who is now a judge) could have cut Bernstein's learning curve in half.

But Goldstein had shunted Green aside in the police department, hostile to any ideas but her own. Bernstein took his cue from her, as he did in other matters.  For example, in a domestic violence "stat" meeting, Goldstein put forth a plan for handling reports of domestic assault. Two police supervisors and the chief of Bernstein's domestic violence division politely and professionally disagreed. One police supervisor was reprimanded and the other transferred.  It's easier to get rid of prosecutors: Bernstein fired his chief.  No alternative views allowed.

So what about Bernstein's own ideas, his crime plan and promises for improvement?  I heard Bernstein give his first report to the Criminal Justice Coordinating Council a year after his election.  His oral presentation featured generalities and assertions, but zero factual support.  He said it was too "early."  Yet he never figured out a way to impress upon the public how many criminals he indicted, what they were accused of doing, or the impact he was having with his strategy.  As the murder rate climbed upward, Bernstein remained practically invisible.

Bernstein also told me that his first priority, a year into his term, was to move from the courthouse to new offices. I was stunned.  Citizens weren't the least bit interested in fancy new offices that cost taxpayers $1 million per year. They wanted to know what he was doing about crime.

Bernstein promised  "transparency" but his favorite phrase was "no comment."   He took forever to post his promised conviction rates, but when he did they told us nothing about his crime-fighting strategy or its impact.

Bernstein never relished the public side of being State's Attorney, the part where he had to keep listening to citizens and demonstrating his deep concern for the city. He needed to be visible enough that ordinary people like my mother could form an impression.  (She liked, for example, former police commissioner Fred Bealefeld, who made her believe that he cared and was trying.)  Bernstein asked for the job, the citizens gave it to him, and he needed to tend to them. He knew--he told me he knew--that he needed at least two terms to make his improvements stick.  But he refused to do what it took to make that happen.  This isn't hindsight: in defending Bernstein from a media attack in 2011, I also tried to warn him.

It wasn't for his personal career that I wish Bernstein had worked on his public perception, but the city's.  Too much turnover in police and prosecutor agencies, where experience is crucial to success, is not healthy.  Mayor O'Malley demonstrated how to decimate a police department with his four police chiefs in seven years. Experienced people leave with each change.  New systems that have barely been integrated get junked in favor of new ones, and the agency starts again. Change when needed--like it was when Bernstein was elected --is a good thing. Change just for change is not.

Marilyn Mosby, who just defeated Bernstein in the primary election, lacks the experience to fully comprehend the enormity of the task in front of her, let alone be able to hit the ground running.  And the state's attorney's office will hemorrhage experienced people these next six lame-duck months, making the task that much harder.  It doesn't mean that Mosby, should she win in November, can't eventually succeed.  But her learning curve will be very steep and at public expense.

But neither am I crying that Bernstein got tossed.  It isn't just that he wouldn't listen, or that he refused to embrace the public aspect of his job.  Call me naive, but I still like to see integrity in my top prosecutor.  Am I accusing Bernstein of lacking it?  I will just tell this story:

Not long after his election, Bernstein made a very good hire.  He asked Janice Bledsoe, a defense attorney in private practice, to take the job of investigating police officers accused of breaking the law.  After giving Bernstein's offer careful thought,  Bledsoe closed down her law practice and became a prosecutor.  She got high marks from the police department for the work she did.

Then Bernstein's office was asked to investigate two police commanders suspected of submitting phony overtime claims.  One of them, Robert Quick, had been represented by Bernstein some years back when Bernstein was a private attorney.  Bledsoe very properly and ethically asked Bernstein whether he might have a conflict of interest, or at least the appearance of a conflict of interest.  This was a good prosecutor attempting to ensure that the public could have confidence in her boss's decisions.  Bernstein should have said yes, and asked another prosecutor's office to handle the investigation.

Not only did Bernstein refuse, he fired Bledsoe.  He sent her packing with no explanation, just dumped her back into the world of private practice, except she had no practice to which to return, having sacrificed it to work for him.

And then he publicly lied.  He proclaimed that Bledsoe "left to pursue other opportunities."

Bernstein cleared his old client, Quick.  And now we know from a recent TV news investigation that while Bernstein was supposedly looking into the phony overtime scheme, Quick and Bernstein's wife were exchanging friendly, personal e-mails, including requests from Quick to wish "Gregg happy Father's Day" and to "Say 'hi' to Gregg."

The State's Attorney is dead, and I can't bring myself to mourn.