Baltimore Criminal Justice Blogger Page Croyder

Anatomy of a Bail Release

2012-01-29T20:10:00.001-05:00

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

2012-01-22T20:14:00.001-05:00

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

2012-01-10T15:01:00.004-05:00

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.

The Gotcha That Wasn't

2011-06-04T18:45:00.002-04:00

The Baltimore Sun thought it had city state's attorney Gregg Bernstein in a "gotcha" moment.

And not just the reporter, who raised the alarming specter of "ethical" issues from an internal e-mail Bernstein sent to his staff. The editors, too, who splashed the story as the top headline of the day last Friday.

Meanwhile, a story of real substance--Bernstein's creation of a new unit to prosecute the worst criminals in Baltimore--was relegated to the inside pages.

And that's our newspaper's priorities in a nutshell.

Not that Bernstein can afford to whine about it, and he won't. But it's a reality he will have to contend with over the next several years, quickly and more adroitly if he wants to build a lasting legacy.

Bernstein sent an e-mail out to to his staff assessing the first case he tried as state's attorney. Clearly he tried to be collegial, humorous, and somewhat self-deprecating, intending to foster a sense of camaraderie.

Apparently he failed with at least one recipient, because the e-mail was leaked to The Sun. And boy did they run with it. Using some guy from New York to attack the content of Bernstein's e-mail, the Sun made it the top story of the day.

The only thing Bernstein did wrong was to e-mail his candid thoughts. As one comment on the Sun's article noted, it's E-mail 101. Don't put in writing what you wouldn't want spread across the news.

But Bernstein's relationship with the press must go beyond avoiding pseudo-stories. His chatty e-mail was quite the contrast to his persistent "no comment" policy on cases or his being too busy to explain decisions, for which The Sun, with some justification, criticized him last winter. While he must be cognizant of ethical issues, he can still find a way to communicate.

One of the mistakes predecessor Pat Jessamy made early in her tenure was in not talking to the press. They punished her hard for it, and she only narrowly won reelection in 2002. Jessamy learned her lesson, but then went in the opposite direction, elevating press relations over substance.

Bernstein won't do that, but he can't ignore the media, either. He must be accessible, responsive and proactive. Just as his e-mail mirrored practices from his days in the U.S. Attorney's Office, he seems to be taking a page from their press policies. Well, like Dorothy, he's not in Kansas anymore. He isn't above the fray, but in the midst of it, handling the messy and complex business of local crime and politics.

And the media, for its part, needs to look in the mirror. Bernstein's e-mail had precious little to do with anything of substance. It was only news because The Sun made it news. (And then they lectured him about it being news.) If they want a state's attorney of substance--and I assume they do--they should focus upon it themselves.

What about Bernstein's creation of the Major Investigations Unit to target violent and repeat offenders? A huge initiative, arguably the crux of Bernstein's campaign promise, the Sun gave it short shrift.

I can think of a million questions to have asked Bernstein. For example:

--How will this unit be different and more effective than what we have seen in the past?

--How will Bernstein measure its results, and report to the public?

--What makes him confident that his new chief of Major Investigations will quickly come up to speed and make a difference? Thiru Vignarajah, an Ivy League educated part-time law professor, appears to be an academic and intellectual blue blood with zero experience in local prosecution. What timetable does Bernstein have for him to learn on the job and produce results?

When reporters ask questions like these, and follow up on them, then they are journalists serving the public interest. And if Bernstein fails to answer these questions, if he hides behind prepared statements, The Sun should make him accountable.

But publishing e-mails on the front page that were clearly and appropriately intended for a narrow audience, the only effect of which is to embarrass the author, reflects more upon how The Sun does its job than on how Bernstein does his.

The Next Pitcairn Murder

2011-05-24T22:15:00.004-04:00

The citizen driving in Baltimore saw a young man standing in front of his car, and stopped to keep from hitting him. The young man pointed a gun at him, ordered him out of the car, and drove off with it.

A classic carjacking, brazenly carried out in the middle of the afternoon.

The citizen described his assailant as a young African American about 19-21 years old wearing a blue Adidas jacket. But because he was focused more upon the gun than the man's features he could not identify him further.

About two and a half hours later the victim's car got into an accident. The driver, wearing a blue Adidas jacket, jumped out and ran from the scene. Witnesses identified him as "Turtle," an African American male aged 18. Police got a search warrant for Turtle's home, and though Turtle wasn't there, they recovered a blue Adidas jacket. They found Turtle a couple of weeks later and charged him with armed carjacking.

But at the first court hearing, prosecutors dropped all felony counts. Turtle now stands charged only with misdemeanor car theft and traffic violations stemming from the accident.

Does this scenario sound familiar? Last year the accused murderer of Stephen Pitcairn had walked on robbery charges just a few months before the murder. The victim had balked at coming to court, and even though they didn't need him at the first hearing, prosecutors quit on the case immediately.

And candidate Gregg Bernstein excoriated incumbent State's Attorney Pat Jessamy for it. (As did I.) In all likelihood he won a close election against Jessamy because of the Pitcairn case.

Only now the shoe is on Bernstein's foot. Because it was Bernstein's prosecutors who quit on Turtle's case earlier this month.

I tried to find out whether there were issues that I am unaware of, and was given the old "no comment." But from my experience and review of the court file, it looks like a case of chicken.

Prosecutors, without a positive identification from the victim, were just too timid to argue the circumstantial case to a jury, or to prod the police into closing the holes. They wanted the case on a platter. In fact, according to a representative from the Washington Village Development Association, a prosecutor told him that he was "glad" that he didn't have the case, and invited him to watch him review files in a room and see how many cases he has to dismiss.

If true, that guy needs a new line of work. Any prosecutor worth his salt would grab that file and work as hard as he could to get a gun-wielding carjacker off the street, whether that carjacker was Turtle or someone to whom Turtle could point them.

It's particularly distressing that Turtle has the same defense to car theft as to carjacking: (a) it wasn't him in the car, and (b) if it was, someone else gave him the car. So if the defense is the same, and the state witnesses all the same, why drop the felony? Why quit at the first court hearing?

By quitting they dumped the misdemeanor case on the young, inexperienced prosecutors in the District Court, who will be expected to ensure that all witnesses are present (good luck with that) and to know how to introduce photo identification evidence into court. And if by chance they are ready to go, Turtle will ask for a jury trial to make everyone show up to court on another day. That case is as good as gone.

And all leverage and context with it. Because a few days before the carjacking, Turtle's home was raided by police who had information that Turtle was dealing drugs. Officers found drugs in the search and arrested him on felony drug violations. Of course, consistent with city practice, Turtle was released without having to post any bail.

But Turtle was denied bail after his carjacking arrest. He was off the street. Prosecutors now had reason to believe that that he was a drug dealer escalating into violent crime. As I have written before, young men + drugs + guns = DANGER. Turtle was someone to fully focus upon.

Instead prosecutors dropped the carjacking charges, causing a judge to set a bail on the car theft charges. (Turtle hadn't posted the bail when I reviewed the file, but he might.) And despite an "official" from the prosecutor's office telling state Senator Bill Ferguson that they planned to "vigorously" pursue Turtle's felony drug case, it's all headed down the road of probation. After all, his adult record at age 18 is "clean", with just a misdemeanor car theft case pending (or dropped when it comes to trial in June.)

No one wants Bernstein to succeed more than me. And it will take time to change a long-established culture, something I know as much as anyone.

But this case sounds an alarm bell for immediate action. Some things Bernstein can do more quickly than others, and how he handles felony cases in the District Court, especially in light of his own attitude towards the Pitcairn tragedy, should be at the top of his list.

Bernstein suffers from the fact that neither he nor those in his front office have extensive experience in the District Court. When he fired the District Court community coordinators this month for budgetary reasons I flinched, and not just because several single mothers making modest salaries were suddenly tossed into a grim job market. Because a new vision for those jobs could have made District Court prosecution more efficient and responsive to public safety concerns, and ultimately save money.

But even without a District Court background, Bernstein has got to make felony assessment a priority. Or the next Pitcairn murder, where prosecutors fail to even try, will occur on his watch.

A Quiet Victory Against Guns

2011-05-16T11:35:00.000-04:00

The governor signed into law a major new weapon in the arsenal against gun crime last week, but it barely caused a ripple in the media.

Perhaps because it couldn't be summarized in a couple of words, or exploit conflict, like "gay marriage." Perhaps because it wasn't some elected official's pet project intended to raise his or her political profile. But a gun bill that failed last year got through the notoriously tough House Judiciary committee chaired by defense attorney Joe Vallario and passed into law this year.

The first thing it does is fix a law that required a mandatory five year prison term for certain felons in possession of a handgun. What's wrong with a law like that? Mainly, that it gave prosecutors little leverage. Since the maximum and the minimum penalty were the same--five years--defendants had little reason to plead guilty and every reason to take a time-consuming jury trial. Guilty pleas move the criminal justice system along, much as some may not like it.

But leverage also helps police and prosecutors gain intelligence about other crimes and criminals by offering plea bargains. The TV show Law & Order, which otherwise drives me crazy in its depiction of the court process, frequently illustrates the power of leverage. The new law provides a sentencing range of five to fifteen years to provide that leverage.

Next, the law closes a glaring hole in the prohibitions against felons possessing guns and those who use guns in committing violent crimes: in both cases, the law excepted shotguns and rifles. In other words, a person could receive an additional penalty for using a handgun in an armed robbery, but not for using a rifle. A felon could be convicted of possessing a handgun, but not a pistol grip shotgun. Now, all those weapons are prohibited.

So it turned out to be three bills in one, correcting problems that police and prosecutors have wanted to change for a long time. Some had already been working on pieces of the problem, like Senator Larry Haines. Haines had tried to punish the use of rifles and shotguns in violent crime for years. When he retired before this session, the governor's office took up the cause.

Vallario contributed mightily by merging several bills into one and getting it through his committee last year before time ran out to pass it. Curt Anderson and the Baltimore city delegation introduced the merged bill this year, which was supported by the mayor and other elected officials. The new vice chairman of the House judiciary committee, Kathleen Dumais of Montgomery County, fought to keep it from being watered down. (Thank you, Speaker Michael Busch, for making her vice chair.)

But the initiative for the new penalty range for felons who possess guns, and the person who worked the hardest to keep the legislation intact and on track, wasn't any elected politician but a lawyer working for the Baltimore Police Department, Jim Green.

Green perceived the importance of the legislation, worked on drafting it, organized witnesses for the legislative hearings, worked with committee members, and endured with professionalism nonsense such as occurred last year, when former Baltimore state's attorney Pat Jessamy walked out on a committee hearing on the bill because she didn't think she was given the credit she deserved.

He remained patient when the bill failed, brought it back this year, worked closely with Vallario, compromised when necessary, and won a big victory for law enforcement.

And he will be horrified to read this blog. Jim Green is about as ego-less as anybody I have ever met, despite his credentials. He handled shooting and gun cases as an assistant state's attorney and as a specially designated federal prosecutor for years. He came over to the city police department at about the time that his former boss, Jessamy, was ratcheting up warfare against the police as a means to get at her enemy O'Malley. Despite continual provocation, Green attempted to work with Jessamy's office and within the police department to promote reforms that would benefit the criminal justice system.

Green can spin out creative ideas for change at such a dizzying rate that a listener can get fatigued. But to those who understand what he is talking about, those who have worked a long time within the system, Green provides a refreshing, optimistic, visionary voice for progress.

Many politicians and would-be reformers try to jump from A to Z by skipping B-Y. O'Malley as mayor was a reformer like that, and a failed one. Green gets to Z the right way, through respect for all the players, his understanding of the complexity of issues, his willingness to listen to other ideas, his long experience, and his utter professionalism. He is one of the gems in the criminal justice system that works below the radar, just a public servant doing his job very, very well.

So though he wouldn't want me to say it out loud, I say thanks, Jim Green.

Influence in the Courtroom

2011-04-17T14:34:00.009-04:00

I was interested to see District Judge Dorothy Wilson's name in the paper again last week. Wilson sentenced Baltimore Ravens assistant coach Andy Moeller to probation despite his second conviction for driving after drinking too much alcohol.

The last time I saw Wilson's name was about a year ago when she acquitted Kelli Oliver, the daughter of Baltimore County councilman Kenneth Oliver, of disorderly conduct and assaulting an officer. The Baltimore Sun editorialized that the acquittal smacked of political influence. I didn't witness the trial myself, but was glad to see The Sun finally call out a judge by name.

So was the Moeller probation another instance of influence? I doubt it. No matter who the drunk driving defendant is, American courts and motor vehicle administrations are consistently lenient until someone is maimed or killed.

But it did remind me that I had finally listened to the tape of the Kelli Oliver acquittal. I took up the challenge issued by Oliver's mother in a letter to the editor, who invited readers to listen to the evidence and make their own decision. I also noticed an anonymous comment that Judge Wilson's verdict was based on the fact that the judge and defendant were both black. (Funny how I never see comments like that when white judges acquit white defendants.)

So what was it, a good verdict, a politically-influenced verdict or a racially-based verdict?

Kelli Oliver was driving with her daughter at night when a county police officer stopped her car for having a light out. The facts boil down to this: Oliver's daughter was immediately loud and abusive. The officer pulled Oliver aside and told her that he only intended to issue a repair order but that she needed to control herself and her passenger. Oliver went ballistic. She was insulting, threatening, and loud.

The officer testified that cars were slowing down to watch the scene and that he decided to arrest her for disorderly conduct. She resisted, he tried to take her to the ground, and she bit him through the skin. He then punched her in the face, causing facial fractures. It was an ugly, brutal encounter brought on by Oliver's over-the-top reaction to a legitimate stop of her car.

The technical basis on which Oliver was acquitted is discussed below for those who are interested. But the verdict was based upon Judge Wilson's application of the the wrong standard of proof.

Judge Wilson struck me as quite professional. I could perceive no hostility or bias toward any party. Did she just make a mistake, or was something else going on?

The answer may lie with another case I witnessed nine days after Wilson acquitted Oliver of assaulting the police officer. I went down to court to order the CD recording of the Oliver trial, and decided to watch a traffic docket that was getting ready to start. And none other than Judge Wilson took the bench. She explained to us how she would conduct the docket, including the fact that all fines imposed had to be paid that day.

Judge Wilson had a pleasant demeanor and appeared even-handed. She convicted one defendant I would have acquitted, but that's the subjective nature of judging facts. She was true to her word, and told one defendant who couldn't pay his fine that he needed to come back that day with the money. The docket was unremarkable until close to the very end.

And up walked Jean Fugett, ex-Dallas Cowboys and Washington Redskins tight end, and brother of the late Reginald F. Lewis. The same Reginald Lewis of The Reginald F. Lewis Museum of Maryland African American History and Culture in Baltimore. Lawyer, businessman, entrepreneur, philanthropist, Lewis was a heavy hitter. Fugett's wikipedia entry says that Fugett, who is also a lawyer, took over his brother's billion dollar company after Lewis died, though it doesn't say for how long.

Fugett got a smile and a greeting from Judge Wilson as he walked up to the table. He announced that he was guilty of driving with a suspended registration, that the police officer in the case was wonderfully professional, and that he needed time to pay the fine because he didn't have the money that day. And he walked out with no fine to pay at all, because Judge Wilson suspended it.

It wasn't about race. It wasn't about the law. And it wasn't about fairness for all the defendants in court that day.

It was about who knows who.

In the courtroom, as well as everywhere else.

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Kelli Oliver's acquittal began with her high-profile attorney, A. Dwight Pettit, moving to "suppress" the evidence against Oliver. Suppression motions are used to keep incriminating evidence out of court, such as drugs, guns and confessions, when the police violate a defendant's constitutional rights.

Either Petit doesn't understand the law or he thought Judge Wilson didn't, because there was no evidence in the Oliver case to suppress. The police seized no incriminating evidence and obtained no confessions. But by allowing the case going forward on a suppression motion, Wilson conducted the trial in confusion.

Eventually Wilson ruled that "the elements of disorderly conduct were not present." This is an acquittal on disorderly conduct, but not a ruling that the officer's arrest was illegal. Conviction requires proof beyond a reasonable doubt. But a legal arrest only requires that a police officer have reasonable grounds to believe that a crime was committed. Judge Wilson never ruled on this. And frankly, given the officer's testimony, which wasn't contradicted, she couldn't have fairly found that the officer lacked reasonable grounds.

But spurred on by Pettit's motion, she treated her acquittal on disorderly conduct as the equivalent of an illegal arrest. And it was a short step from there to find that Oliver could legally bite the officer who tried to arrest her, because citizens can use "reasonable" means to resist an illegal arrest. The prosecutor argued--persuasively, it seemed to me--that no legal precedent justified biting an officer through the skin, but Wilson was too far down the tracks by then to rule against Oliver.

I don't think Wilson set out consciously to acquit Oliver. But she felt the pressure of a politically connected defendant and a high profile attorney. Black, white, male, female--influence affects them all.

Releasing Violent Criminals in the Dark

2011-03-18T06:30:00.000-04:00

He turns 67 this month, and has spent nearly 43 years in prison. On March 2 he was denied parole for the umpteenth time.

Not because he's an unruly prisoner, or considered a threat to commit a new crime. Because he's Sirhan Sirhan, the notorious murderer of Senator Robert F. Kennedy. The psychic pain he inflicted upon a nation in 1968 will likely keep him in prison until he dies or is very near to it.

Is this an adequate justification? Or is the California parole board simply making a "political" decision based on fear of public reaction if it recommended parole?

When it comes to releasing persons from life sentences early, I'd say that public scrutiny is very much a legitimate part of the equation. And that's the essence of the current debate over whether to end the governor's role in approving parole for those serving life sentences. Maryland will kick the public completely out of the picture if it approves legislation to eliminate the governor's authority.

The Sun's recent editorial on the subject was disappointing, to say the least. It wasn't the Sun's criticism of Governor Martin O'Malley, who has sat on his hands, that's troublesome, but rather its falling for the 'easy fix.' Nobody (other than Baltimore County State's Attorney Scott Shellenberger, perhaps) seems to understand the big picture.

First, one would expect The Sun to be a champion of light and full disclosure to the public. But if the governor is simply removed from the parole process, prison and parole proceedings will be left shrouded in darkness and unavailable to the public.

For example, what did we learn about the 50 persons whom the Parole Commission wants to release when the Sun published its article about the controversy? Virtually nothing. Advocates for prisoners, however, can serve up whatever they wish, such as this submission by the ACLU in written testimony to the senate: "[The prisoner] is serving a life sentence for knocking on a door for her boyfriend--and has served 33 years in prison." Right. My guess would be that the state proved she knew he was going to kill someone when she helped him open the door, but who knows?

That's because the names of those recommended for parole are not public information. Why not? And why the heck isn't the Sun complaining?

But now that the controversy has pushed the governor to action, we are getting names and information about the original crimes. And the public gets to see what's going on. That is how it ought to be.

Second, the Sun actually called for Maryland to put the commutation of sentences in the hands of a parole board. Are you kidding me? Regardless of anyone's view of the Parole Commission (mine is low), giving it the power to commute sentences is revolutionary and cannot be justified by any of the arguments advanced by the Sun in the case of parole. Parole and commutation of sentences are two very different animals, and the Sun carelessly advocated a dangerous change in who has the power to reduce sentences.

This is what comes of easy fixes. They nearly always fail to account for complex issues and can create greater harm for a lesser good.

Maryland legislators need to take a deep breath. They don't understand enough of our prison and parole system to make such fundamental changes without other reforms. They need to understand and they need to bring the prison and parole system under the light before they remove the only public accountability that exits now.

And Martin O'Malley needs to do his job and thoughtfully review the cases he is sent by the Parole Commission. If he doesn't want to do it, and even if he does, he should be leading the charge to increase the visibility and accountability of prison and parole officials who have control over all prisoners except lifers.

Maryland shouldn't be releasing its violent criminals under cover of darkness.

A Transparent Parole and Prison System

2011-02-21T10:25:00.013-05:00

The last case I tried involved the murder of a deaf man who was waiting at a bus stop.

He wasn't the target of the murderer, who had gotten into an argument with someone and started shooting. An innocent bystander, the deaf man had finished his maintenance shift at the Social Security Administration late in the evening but never made it home.

No one from his family showed up at the trial or the sentencing. No one spoke for him but me. And when the judge sentenced the murderer to life in prison, I remember feeling some comfort that the governor would have to sign off on any parole. It wouldn't just be up to some parole commission that would be given no reminder of the value of this man's life. Another pair of eyes would look at the case.

Now there's legislation pending to remove the governor's authority to approve parole for those sentenced to "life" for their crimes. Baltimore Sun columnist Dan Rodricks wrote last Sunday for the second time in support of the measure. A similar article appeared earlier this month in The Washington Post.

Rodricks advanced the argument that governors who refuse to approve parole for lifers are necessarily doing it for "political" (i.e. bad) reasons, and that it's unfair to put parole decisions in the hands of politicians. This supposedly undermines judges who, in rendering a sentence of "life" in prison as opposed to "life without parole" intend that the offender have a chance at parole.

Except that all any judge has to do to keep a governor's hands off parole is to sentence a criminal to a term of years, rather than "life." Everybody in the system knows it. Judges who want to get around the governor, can.

Rodricks really objects to the fact that governors can set a unilateral policy against parole for lifers, pointing to former governor Parris Glendening and possibly current governor Martin O'Malley. In this I agree. Each case should always be taken on its own merits. But I am not ready to jump to the solution of eliminating the governor's discretion. We allow governors to unilaterally commute sentences and issue pardons. I'm not convinced that allowing discretion in the other direction is so horrible when it comes to those who have earned life sentences.

But I could be persuaded to support changing the law if we reverse this sentence of Rodricks: "Take the governor out of the process, let the parole commission do its job, and build additional transparency into the system." He has it backwards. First we build in transparency, then we see how the parole commission does its job, and lastly we take the governor out of the process.

My experience with the parole and prison system in Maryland gives me zero confidence in its handling of dangerous offenders. The Division of Correction (DOC), for example, routinely fails to take good-time credits away for bad behavior. Take an incident that made the news last summer, when a Crips gang member and convicted felon named Brian Joseph Hill fired a gun at a Carroll County deputy sheriff and is now pending attempted murder charges.

Hill had previously been convicted of firing numerous shots at a group of people he thought had insulted his cousin, with one bullet penetrating the exterior wall of a house. It flew over a bed where a couple was sleeping and shattered the glass of a cabinet in the room. For this, together with a violation of probation (where Hill originally had assaulted an undercover police officer) and a third assault case dropped in the plea bargain, Hill got 5 years with another 10 ears suspended.

I found out that information going through public court files. But the public is kept in the dark about what happens in prison. Hill made, in the words of a DOC letter to prosecutors that I obtained, "a very poor adjustment" in prison. He battered a rival gang member in prison with a padlock contained in a sock. He assaulted another inmate who was helpless in handcuffs, and got into a fistfight with still another inmate, at which time a metal shank was found at the scene.

Yet according to a prison official speaking anonymously, Hill lost no good time credits for any infraction. When I tried to verify this with DOC they refused to answer my question. But Hill was released over 16 months early from his sentence thanks to good time credits. (He didn't shoot at the deputy sheriff within that 16 months, but that isn't the point.) It's astonishing.

This is typical, routine at DOC. They refuse to take away good time credits so they can push inmates out of the door as soon as possible, no matter how they behave in prison.

Then there's the Maryland Parole Commission, which uses its own little tricks to empty cells. They revoke parole for bad behavior but often don't take away good time credits either, resulting in early, sometimes immediate release. They wait for new convictions rather than revoke parole for other violations, ensuring that any revocation will run concurrently to a new sentence. And rather than work independently, they march to the tune of the DOC, such as with a "special project" that accelerated the parole of violent offenders in the summer of 2009.

I wrote about these issues in greater detail in earlier articles: Early Release for Bad Behavior, Leaving Prison Early Part I, Part II , Part III and Secretly Releasing Prisoners, Part I and Part II. They document and explain why the prison and parole system needs a big spotlight to shine on it before we should increase the authority of parole commissioners (who in turn rely on prison officials.) Until they change how they do business, I prefer keeping the governor in the picture, who at least is directly accountable to the people.

But how can we change the way they do business? First, end the practice of awarding good time credits up front, before a criminal serves any time. Credits should be earned.

Second, make public all prison records involving misbehavior, just as court cases are public. I can think of no justification for hiding this information from citizens who are footing the bill for incarceration. And not only should the information be available upon inquiry, DOC should regularly report on the number of disciplinary incidents and hearings, together with their results.

Third, create the same transparency for parole revocation hearings. These should be a matter of public record available upon inquiry and regularly reported upon.

Fourth, reform the whole system of concurrent sentences between new and old sentences. We need truth in sentencing.

Fifth, require the Department of Public Safety to publish the risk assessment tools it uses, and make each inmate's risk assessment open for public inspection.

With transparency like that, we should see a more thoughtful, more accountable DOC and Parole Commission. We should see agencies focused upon risk and public safety, rather than, in the words of Parole Commission Chair David Blumberg, "population control."

Then maybe we can take the governor out of it.

The Greatest Part-time Job in the World, Part III

2011-01-27T11:58:00.005-05:00

The 14-year-old girl testified clearly and firmly.

She had slept over at her best friend's house, and was waiting to use the bathroom when her friend's stepfather, Damien Wilson, came out after his shower. When he saw the girl he opened his towel and started "giggling his stuff."

After she "got [herself] together" she told her friend what had happened on their way to a family party that day. But after the party, her friend's mother had Wilson take her home, putting her alone in the car with him.

Wilson asked her if she would ever "prostitute" herself or "sell some pussy." She said no, and he touched her face. She said she wanted to go home and told her mother what happened when she arrived, who immediately called the police.

Wilson and a friend of his took the stand to deny what happened, badly and unconvincingly. The judge convicted Wilson.

And it all meant nothing. Absolutely nothing.

You see, Wilson opted to have a trial in the District Court. That meant that he could throw out the results by taking an appeal to the Circuit Court. An appeal from the District Court is "de novo", meaning the case starts all over again. And only a defendant can have a trial de novo. It's strictly a one-way street, and it only applies to District Court appeals.

So the young teenage girl, having been put through the ordeal of testifying about a very personal and upsetting incident in a courtroom full of strangers, would now have to do it again. Not because anything unfair to Wilson happened at trial, but because District Court judges--unlike Circuit Court judges--aren't entrusted to make decisions against the interest of defendants.

The victim didn't show up for the new trial. I don't blame her. And the defendant, who was also a police target for drug-dealing, got away with what he did to her.

The de novo appeal is grossly unfair to witnesses and victims. It wears them down and stacks the deck in favor of defendants. It makes a mockery of the District Court, which isn't so much a court but an opportunity for maximum manipulation of the criminal justice system. It wastes court time and taxpayer money. And it's just one cause of an expensive, inefficient District Court.

In Part I I described the part-time job and generous perks of District Court judges. One attorney in private practice e-mailed his concurrence, observing that a District Court judgeship is "the closest thing to winning the lottery that there is." And while many judges do try to find something meaningful to do, plenty of them "work" to spend as little time on the bench as possible.

Judge Theodore Oshrine, for instance, who tried the Wilson case, kept rushing the trial and the victim. When she had just begun to testify, he told the prosecutor, "You have two and half minutes with this witness. I'm, I'm not kidding, the docket has been slow." Later, when the girl was in the middle of describing how Wilson exposed himself, he said, "And this is going to last another two minutes, seriously."

Part II explained why District Court judges have these part-time jobs. From de novo appeals to jury trial rights for minor crimes, the General Assembly only dressed the District Court up as a court while investing all real authority in the Circuit Court.

Several commissions have met over the years to try and reform this state of affairs, only to be met with a virtual stonewall from legislative committees dominated by defense attorneys. But others keep trying.

For years the Calvert Institute for Policy Research has called for lowering some drug possession penalties to 90 days or less to keep more cases in the District Court, and did so again recently . The Greater Baltimore Committee joined the call for more 90-day misdemeanor penalties in its own 2011 report on best prosecutor practices.

This would be a welcome start. Right now any crime that carries a maximum penalty of more than 90 days entitles a defendant to a jury trial in the Circuit Court. The vast majority of crimes qualify for jury trials, even when there is very little chance that a convicted defendant will get any jail at all, let alone more than 90 days.

The General Assembly must also clearly define what invokes the right to a jury trial. When it created the District Court 30 years ago it left intact language in the state constitution's Declaration of Rights conferring the right to a jury trial in every criminal case. And although the Court of Appeals has interpreted this language to exclude some misdemeanors from this "right" we need one clear, consistent rule.

Federal law entitles defendants to jury trials when the maximum penalty is six months. The 90-day limit in Maryland is more generous, and it's entirely appropriate to entrust District Court judges with making decisions in these cases. If not, the whole court should just be turned into a magistrate's court to handle preliminary matters, at much less cost to citizens.

But I'm in favor of making the District Court a real court, which can be done by clarifying the constitutional right to a jury trial, limiting penalties on more misdemeanor crimes, and eliminating the de novo appeal.

It will take strong, sustained leadership to accomplish this. Ironically, had Martin O'Malley done so when he became Baltimore's mayor a dozen years ago we might have these reforms by now, four years into his governorship. Instead he forced his Early Disposition Court on Baltimore, a program he said would keep more minor cases in the District Court and allow greater focus on gun and violent crimes. He failed because he did not address the underlying problem of jury trials and de novo appeals. Looking for immediate, spectacular success, he ignored the fundamental change needed to accomplish his goal.

O'Malley could still champion this cause, but he remains focused on more immediate projects to boost his political profile. What a wasted opportunity for someone who portrayed himself as a crime reformer.

Who else could do it? It would be nice to see Attorney General Douglas Gansler, a former state's attorney and likely gubernatorial candidate in 2014, take up the challenge. But his special cause appears to be eliminating the election of Circuit Court judges, a curious choice of priorities that will do little if anything to improve the criminal justice system.

So I don't know who will take the lead. In the meantime, judicial commissions will keep pushing big raises for part-time District Court "judges" who lack real authority. Minor cases will continue to crowd Circuit Courts that should be focused instead on dangerous offenders.

And defendants will keep manipulating the District Court to wear down victims and witnesses to escape justice.

A Little Too Cozy

2011-01-09T22:40:00.001-05:00

The installation of Gregg Bernstein as Baltimore State's Attorney last week marked a promising new day for the city's criminal justice system. We can look forward to new energy, new ideas, greater competence, and the end of the destructive relationship between police and prosecutors that bogged down progress.

But upon reading my newspaper the morning after his ceremonial swearing-in, I felt a slight chill go down my spine. The Sun article reported the hiring of Bernsteins's new communications director, Mark Cheshire. The chill I felt wasn't about Cheshire, of whom I know nothing. It came from who selected him, and how.

I must confess that all through the election process I ignored the fact that Bernstein's wife, Sheryl Goldstein, heads the Mayor's Office on Criminal Justice. Hired by Sheila Dixon over three years ago, she created GunStat, a program that tracks the progress of gun cases, and worked hard for progress despite an ineffective, hostile state's attorney's office. She now exercises considerable influence over Police Commissioner Fred Bealefeld and real control over the policies and message of the police department.

Goldstein encouraged her husband to challenge the incumbent state's attorney, and took a leave of absence to help run his campaign effort. I felt grateful to both of them for effecting the change we are about to see. I didn't pay attention to the conflict of interest it could raise.

After the election Goldstein's hand in selecting Bernstein's top assistants was obvious and inevitable. But both of them have also taken pains to tell others that they will be operating independently. Of course, this is nearly impossible. What exactly will they be talking about when they go home together at the end of each day? The weather?

It was good, though, that they seemed aware of the danger of too close a connection, of the need for independence. And then I read about how they picked Bernstein's new spokesman.

You see, they formed a panel that consisted of the following persons:

1. Goldstein.

2. Elizabeth Embry, who worked closely with Goldstein as an attorney in the city law department on policy issues. After a brief stint elsewhere, Embry took Goldstein's place as the Mayor's point person on criminal justice when Goldstein took a leave of absence to help run her husband's campaign. When Goldstein returned, she sent Embry over to Bernstein to be his policy person.

3. Anthony Guglielmi, the police department's communications director and spokesperson.

4. Warren Brown, a defense attorney who worked on Bernstein's campaign.

When Cheshire interviewed with the panel Goldstein, according to the Sun, recused herself, making it perfectly clear--as if the others didn't already know it--that she knew Cheshire and Cheshire was her man.

So the police department, as in Goldstein, picked this guy for the State's Attorney's Office. He owes his job to her. He will stay on her message, which is the message of the mayor and the police department.

Oy vey. I am all for police-prosecutor cooperation, and have lamented its demise for years. But there does need to be some light between the two agencies. They are not one and the same, and that's a good thing. Prosecutors need to act both as a check on police and as an independent evaluator of policy.

I don't see any independence here. In fact, I see something even a little worse: the pretense of independence. A transparent little charade suggesting that the appearance of independence, not actual independence, is the goal.

Bernstein should have picked his own spokesperson. He didn't need his wife to do it for him. And if he wants to be as independent as one can be while married to the person who is now the most powerful figure in Baltimore criminal justice, he would bring in some people whom she doesn't know or with whom she even disagrees, to give him a much needed different perspective when making his decisions.

Partnership between two truly independent agencies working towards the same goal is good. Pretend partnership that masks a centralized control over police and prosecutors isn't.

The End of Bail, and a New Beginning

2010-12-13T22:30:00.002-05:00

Our bail system is disconnected to its purpose. It neither ensures that persons accused of crimes show up in court nor protects the public from further criminal activity. It exists because, well, that's the way we've always done it. And by making liberty dependent upon financial resources, it discriminates against the poor.

So what do we do? Circuit Judge Brooke Murdoch, chair of Baltimore's Criminal Justice Coordinating Council, has convened a committee to look at the city's bail system. I don't know what its marching orders are, but I expect little to come from it. Committees that lack the power to actually do anything usually just tinker with the status quo. They don't foster radical rethinking.

I did hear that the bail committee won't be seeking new legislation, a wise decision. The profitable bail bond industry exercises a formidable influence on our elected politicians. According to one witness, Joe Vallario, Chair of the House Judiciary Committee actually apologized to bondsmen for wasting their time at a hearing on bill to close a licensing loophole. Vallario had no intention of letting even modest reform come to a vote.

Fortunately, we don't need politicians to fix the pre-trial release system. Change can be driven from within. And it needn't burden taxpayers the way that bail reform advocates like Doug Colbert of the University of Maryland law school would have it. Colbert thinks the public should (a)pay for defense attorneys to tell the commissioners to set lower bails, and (b)pay for prosecutors to tell commissioners to set lower bails. That's three people to do the job of one person already paid to set bails.

Commissioners work for the District judges. The judges train the commissioners in setting bail, and they set bail themselves. It's their job, and they should do it. But what is it that they should do?

First, end the pretense that the bail system does anything other than enrich bail bondsmen. No more bails.

Second, change the decision from how much bail should be set to can the accused be released pending trial. In the majority of cases the answer should be yes, though it can't reflect a simplistic criteria, such as whether the alleged crime is violent or not. A person may commit a non-violent act but pose a serious danger. A person may be accused of a violent act but can still be released.

Those we are now willing to release on reasonable bails would (for the most part) continue to be released, only without having to post a financial bail. The risk to public safety remains the same. Likewise, the population of those who get "no bail" would mostly stay the same as well.

The real issue for commissioners and judges would be those persons who now get high bails or who should otherwise be perceived as high risk. And therein lies the opportunity for a new beginning. For the same considerations that go into pre-trial release decisions would go into prosecution, sentencing, probation violations and parole. By articulating who we need to focus upon we could have a rational, explainable, justifiable criminal justice system from top to bottom, not one that exists because, well, we just do it this way.

I can think of a million issues that would need addressing. If a released person fails to appear in court or is re-arrested, he should be held no bail the second time. Accused persons are now frequently released multiple times, which rightfully frustrates citizens. One bite at the apple would be fair to rich, poor, and the public.

A new pre-trial release system should bring with it an arraignment court in the District Court to reduce the number of unnecessary appearances by victims and witnesses. Citizens should not be able to obtain warrants against other citizens like they do now without prosecutor review. The State's Attorney's central booking division, reduced to a skeleton crew under Jessamy, must restock and refocus. Alternatives to pre-trial detention like curfews, reporting requirements, home monitoring, and stay away orders need shared information, better technology and police involvement to make them effective, not the joke they are now. Simplified fingerprinting should be available to police on the street to allow citations rather than arrests. And there is so much more.

These terms and concepts will mean more to criminal justice professionals than they do to the public. My point is that there's much work to do and many details to consider and address. We should not plunge into a new system, and we should measure what we are doing along the way, something the criminal justice system does so poorly now.

But it can be done. What it needs is visionary, energetic and sustained leadership. Leadership that thoroughly understands the current system and doesn't think it can just impose a 'good idea' (a la one former Mayor Martin O'Malley, who knew just enough to make him arrogantly confident in his ideas but little enough that they failed.)

That leadership must come from the the State's Attorney's Office, the agency that decides who to prosecute. It must take the lead in focusing criminal justice efforts on those who most pose a threat to public safety. That decision starts with pre-trial release and detention, and continues on throughout the entire criminal justice system.

In a few weeks, Baltimore will have a new state's attorney, Gregg Bernstein, who has promised change. There's so much he can do. He's our chance for a new beginning.

Of Bail and Bondsmen

2010-11-15T22:45:00.002-05:00

In my favorite Robert DeNiro movie, Midnight Run, DeNiro plays a bounty hunter attempting to bring a bail jumper from New York to L.A. for trial.

Entertaining but fanciful in many aspects, the movie embodies popular conceptions about the bail system: get arrested, pay a bail bondsman to get out of jail, have the bondsman come after you if you skip out.

It sounds very efficient, maybe even fair. But Maryland's bail system serves neither efficiency nor fairness. It exists primarily to make profits for bail bondsmen.

The bail system involves two distinct components: the practice of requiring bail as a condition of release before trial, and the bail bonds industry. Since persons charged with crimes are presumed innocent, allowing them to be free pending trial is consistent with that presumption. Bail functions as an incentive for defendants who are set free to show up for trial. They put up something of value that they get back when they come to court.

But it's easy to see that requiring bail discriminates against those without cash or property to post as collateral. Liberty before trial depends on sufficient wealth to post bail. That is, or ought to be, offensive to American sensibilities.

So into that breach stepped the American genius for making profits. For a fee, usually a small percentage of the required bail, private companies will post a "bond," a written guarantee to pay the bail if the accused person fails to show up in court.

As the New York Times pointed out in a 2008 article, the United States and the Philippines are the only two countries that give private enterprise a central role in their pre-trial release systems. And the bail bonds system has been, according to the Times, condemned by the American Bar Association and the National District Attorneys Association, not to mention outlawed in four states. But it has a firm foothold in Maryland.

What do bondsmen accomplish? Well, they allow more people of lesser means to get out of jail. But while they lessen the inherent discrimination of the bail system, they do not eliminate it. If bondsmen won't take a bail, or if the accused cannot afford even a small fee, the accused still stays in jail. And bondsmen take money from people who can least afford it and can't get it back. Under a true bail system, bail is an incentive to show up for trial. Under the bail bonds system, bail becomes a penalty for being arrested.

Bondsman will claim that they bear the risk of defendants who don't appear for court and the cost of tracking them down. But in reality the bondsman's risk is low. If a defendant skips court, a judge will issue an order "forfeiting" the bail, which triggers the right of the local prosecutor to take the bondsman to court and enforce his promise to pay. But in Maryland bondsmen can have the forfeiture "stricken" when the defendant is arrested. It doesn't matter what he is arrested for or whether the case is no longer feasible thanks to the delay in the trial. As long as the defendant is returned to custody for any reason the bondsman is released from responsibility.

In Midnight Run, not only was DeNiro looking for the bail jumper but so was the FBI. A Maryland bondsman would have just let the FBI do their work, because unlike the premise of the movie, no 5-day deadline exists that would cause the bondsman to lose his money.

The bail bonds system, in theory, transfers from government to private industry the decision of risk and the burden of capture. I can imagine a time, say in the old West, when perhaps this made sense. In the absence of photos and fingerprints, not to mention social security numbers, and without a professional and ubiquitous law enforcement system, bondsman might really have performed a function that the state could not have done as well.

But not anymore. With technology, information systems, and modern police forces, bondsmen can just wait for police to find or happen upon their no-shows for them. And while bondsmen can get more poor people out of jail, they gouge them with non-refundable fees. It's still a system of greater liberty and justice for the well-to-do.

The Times article states, without providing evidence, that the bail bonds industry "is remarkably effective at what it does." The evidence, of course, is critical to that claim. But more fundamentally, what does the industry do? It decides that some persons are worthy risks for release. And makes a profit on its judgment.

The state is already supposed to decide that risk. It serves neither logic nor justice to have a bondsman make a second judgment for profit. Unfortunately, the state makes bail decisions inconsistently and badly, fueling the perceived need for bail bond companies.

I'll talk about those bail decisions next time.

Accountability in the Bail System

2010-11-02T18:33:00.003-04:00

Now Peter Hermann's on the right track.

At least that's what I thought when I began to read his article in the Sun last Sunday. He described three young people from Canada arrested for misdemeanor theft in Baltimore, one of whom got a bail of $1,000 and the other two bails of $175,000. Here was a good example of injustice in the bail system that needs addressing.

But my enthusiasm waned when Hermann used the case to beat the drum again for taxpayer-paid lawyers at commissioner hearings as the solution. (At least that's what he appeared to do. Allowing journalists to drift back and forth between reportage and opinion pieces, like Hermann does, makes it hard to discern their perspective sometimes.)

Hermann cited, once again, those who want taxpayers to pay for lawyers to tell commissioners what they should do (which will always be to release defendants.)

How about we just get well-trained commissioners?

Commissioners are supposed to see defendants within 24 hours of their arrest primarily to determine whether they can be released from jail pending their court date. They can release them on their promise to come to court, which happens for just under half of those arrested in Maryland. They can require a defendant to post some form of bail. And there are some defendants that commissioners cannot release by law, such as those charged with first degree murder. (Only judges can release those defendants.)

If a commissioner sets a bail and the defendant does not post it within 24 hours, judges are supposed to review the bail at the next session of the court. But over a weekend, defendants can wait 2-4 days for a judicial review, so the initial bails are very important to defendants. And likewise, a commissioner can let a dangerous offender out before a judge ever sees the case, so initial bails are important to public safety, too.

As the Hermann piece makes clear, commissioners can set wildly divergent bails for similar crimes and similar past records of defendants, and they can set excessive bails. They also can set grossly inadequate bails for dangerous offenders, a side of the issue Hermann fails to mention.

Why do they do this? Because like most of the rest of the criminal justice system, commissioners have little real idea how to identify and evaluate risk factors. They are allowed to pull numbers out of a hat. And that's not their fault. They work for the judiciary, which is responsible for training them and monitoring what they do. Judges lack a consistent process for setting bails, too.

Setting bails is only one part of a commissioner's job. Taking bails is another, also important to defendants getting out of jail. And if my personal experience with the bail process is any indication, the judiciary may have problem areas there as well.

I happened to bail out an acquaintance of mine this past summer. I went down to Central Booking with my Mastercard, only to be told they only took Visa. I went home, retrieved my Visa, and this time was told by another commissioner that they only took Mastercard. Fortunately I still had it with me, but they used some convoluted telephone process that didn't work. I was forced to go out and find cash in the evening, and since the bail was more than my ATM limit, had to find my acquaintance's daughter to help.

When the daughter and I returned with our combined ATM cash the commissioner would not give change for $760, insisting upon the exact amount of the $750. We got change from a jail employee, sparing us from going out in an unsafe neighborhood in the dark with that cash. We finally posted the bail after a multi-hour ordeal.

But my acquaintance was not released that evening. Instead, she spent an extra 17 hours in the detention center. When she arrived there from Central Booking the toilet paper had already been handed out, so she got none. Jail officials turned off the water in her section all morning for repairs, so none of the 3 toilets for 35 women were flushed of any waste. Officers filled a large garbage can with water for both drinking and washing for the inmates. A correctional officer kept referring to the women as "bitches." A large young woman attacked a skinny old one without interference from staff. I could go on.

I called the next morning when I found out that my acquaintance was still in jail and was told that they didn't release anyone between midnight and 8 a.m. When I investigated on what authority the jail could hold someone who had been bailed, I was eventually told (over a month later) that this had been going on for three months but the problem was now fixed thanks to my e-mails to Public Safety.

But that wasn't even why she wasn't released, because we had posted her bail at 7 p.m. It turned out that the commissioner--who was handling a personal call during the whole bail transaction--failed to turn the paperwork in to the jail staff.

A lawyer for the defendant wouldn't have gotten my acquaintance out any faster than I did. Heck, I am a lawyer and she was held in jail. No, sometimes it just comes down to plain old human competence, caring, supervision, training and accountability. That's the first thing we need to fix the bail process.

The second is a coherent, consistent philosophy of who should be released pending trial and by what mechanism. We don't have such a philosophy, and the mechanism that's now in place stinks.

More on that to come.

Bad judge, Bad bail review..and then there's Prevas

2010-10-26T09:55:00.002-04:00

Reporter Justin Fenton was attending the bail review of a high-profile case when he caught the bail review of one William Campbell. And from that we get a column from Peter Hermann about the unfairness of the bail review system.

Hermann had something good to write about, but it wasn't about the unfairness of the bail review system.

Hermann (and Fenton in his blog) describe a bail review where a defendant had his bail amount tripled when he tried to represent himself. Cue Doug Colbert, the law professor who thinks Marylanders should pay for lawyers for all arrested persons before a bail commissioner. And of course, Colbert tells Hermann that a lawyer would have made all the difference.

Except that in Baltimore a lawyer was already supposed to be representing Campbell. Under a funding agreement with the state, the public defender's office represents jailed defendants who don't post their initial bails and appear before a judge to review those bails. Hermann and Fenton don't tell us why the assistant public defender in court that day didn't speak for Campbell.

Did Campbell refuse public defender representation, as some defendants do? Did he fail to cooperate? Did jail officers deny access to a lawyer? Did the public defender's office screw up? Without this piece of the story, we can't draw any conclusions about what difference "the right to a lawyer" made or could have made for Campbell. The reporters also don't give us enough facts about Campbell's background and charges to suggest he could have gotten his bail lowered enough to make it. [Subsequent to my original post, I found out more about Campbell. See More to the Story, below.]

Lacking all the facts, this isn't a story about a defendant railroaded by a speeding locomotive of a bail review system, as Hermann tells it. It's really a story about a bad judge.

When a private lawyer predicted to Fenton that Judge Charles Chiapparelli would raise Campbell's bail to "no bail" after Campbell raised "a fuss", it meant that he had seen Chiapparelli in action before. Chiapparelli has a mean little streak, and it comes out when defendants interfere with his first purpose in court: to get out of there as soon as possible.

I mentioned Chiapparelli in The Greatest Part-time Job in the World, Part I racing through his docket so he could leave for the day at 12:15. I left out a little scene I witnessed that's relevant to tell now. A man pleaded not guilty to the charges of driving through a stop sign and failing to yield the right of way. After the police officer gave her side of the story, the man testified that he stopped for the sign but because it was set so far back he only looked like he ran it. He then started to explain his failure to yield but Chiapparelli cut him off, finding him not guilty of the stop sign violation, guilty of failing to yield, and giving him probation before judgment (which meant no points on his driving record.)

The man protested that he hadn't had a chance to speak about the second charge. An angry Chiapparelli ordered the court clerk to look up the man's driving record (which he didn't do for anyone else) and ranted about the ungrateful man's attitude. Message to everyone else in courtroom: shut up.

Chiapparelli's explanation to Hermann for raising Campbell's bail was that if a defendant talks then he looks "more closely at the facts in the case." Apparently it wasn't important to look closely at them at the beginning of bail review, when the defendant's liberty and public safety should have been just as much a concern. Chiapparelli doesn't have time for defendants who want to talk. It's next case, next case, then he's outta there.

A couple of more points about the Hermann/Fenton pieces:

1. Judge Alfred Nance did not rule that "Maryland's anachronistic system that emphasizes speed over fairness needs reform." Please. This is interpretative license taken way too far. Nance ruled that defendants have a right to a lawyer at a hearing where a commissioner sets an initial bail (based on his questionable interpretation of a Supreme Court case.)

2. Fenton wrote that "a pretrial services official and the prosecutor got to talk about what bail should be set for Campbell" before Judge Chiapparelli increased the bail without hearing from Campbell. Some could take this to mean that defendants are routinely railroaded.

The pretrial services official is a neutral party charged with investigating the defendant's ties to the community and making recommendations to city judges about whether to release defendants. And prosecutors speak at a minority of bail reviews in the city (and rarely in the rest of the state.) They are funded by War Room funds to focus on violent offenders. Only occasionally will a prosecutor appear without a defense attorney because the public defender is supposed to represent city defendants. It is far more often the other way around.

I don't oppose lawyers at bail reviews, by the way (which is different from lawyers at the time bails are set by commissioners) so long as the public defender's office doesn't get a zillion more dollars to staff bail reviews. They already are under-employed in the district offices and can spare the time. I think they can make a difference for some defendants who can be safely released after further reflection and investigation. I just don't think the Campbell incident makes the case, though I'm glad to see Judge Chiapparelli exposed.

I promised to offer my own views on what reforms are needed for the bail system. I hope to start on that next time.

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

Judge John N. Prevas

In striking contrast to lazy judges like Chiapparelli, there was Baltimore Circuit Court Judge John N. Prevas, a man passionately dedicated to the law, to justice, and to his job. While controversial at times due mainly to his manner, Prevas could never be criticized for his work ethic and devotion to making legally correct decisions. In poor health for many years, Prevas refused to retire, continuing to judge through considerable pain.

Judge Prevas died yesterday, with his boots on. He will be missed.

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

More to the Story

Subsequent to my original posting, I obtained this statement of charges against Campbell:

[Police officer responds for a domestic assault call.] Upon arrival, I observed a black female...crying in the living room...[She] advised me that her boyfriend assaulted her by pushing her around and choking her while in the top floor bedroom. [She] also advised me that herself and her boyfriend were having a dispute. Her boyfriend started to push her around the bedroom. [The victim] landed on her bed and her boyfriend got on top of her and began choking her with both of his hands around her neck. [She] could not breathe and began to get light-headed as a result of being choked. [Her] ten-year-old daughter walked into the bedroom and observed the suspect assaulting her mother. An anonymous neighbor also came into [the house] as a result of hearing screaming. The suspect let go of [the victim] after hearing the anonymous [neighbor] inside the dwelling yelling for the victim. [The daughter] called 911...

Once I entered the location, I located the suspect in the top level hallway. After ordering him downstairs, same gave me a name of Michael Smith...Further investigation revealed his that the suspect's name is Willliam Campbell...I observed numerous bruises and scratches around the neck and chest areas of the victim...

So Campbell allegedly assaulted his girlfriend by strangulation in front of her daughter. He gave a phony name to the police officer. He has two prior convictions for assault, violating probation in one of them. He had prior charges for armed robbery dismissed, and was recently acquitted of illegal possession of handgun.

No wonder his bail was raised. Too bad Chiapparelli only read the facts when Campbell spoke up. Rather than creating a call for bail reform, he might have allowed Campbell back on the street where he could further harm the victim, leading to a call for domestic violence reform.

The Price of Enlightenment

2010-10-15T13:00:00.001-04:00

This week's cover story in the City Paper is a must-read for anyone interested in how vicious predators can continue to prey on citizens even though they've been caught. Written by Hal Riedl, a frequent commentator on this blog, it details the journey of a sexual predator and murderer through a criminal justice system that just doesn't get it.

I first met Riedl in 1998 after I had filed to run against the "Nine Trusted Judges" of Baltimore's Circuit Court who were standing for election. Riedl called me, introduced himself, and explained that he worked for the Department of Public Safety, from which vantage point he could see how judges were sentencing criminals. As we talked, it became eerily clear that his top three "least-trusted' judges were the same top three on my list, though our reasons and perspectives were different.

Riedl tried to help my underdog, unsuccessful campaign as judicial candidate, just as he worked hard for state's attorney candidate Gregg Bernstein. He puts his money where his mouth is.

And on his own professional front, he constantly advocated for more appropriate handling of violent criminals. He saw not only what judges did with sentences and probation violations, but how hearing officers handled prison violations and parole commissioners parole and revocation hearings. He understood the significance of criminal backgrounds when others didn't or didn't care.

He became a gadfly to his employers. And this year, before writing his article Freeing Willie, Riedl was fired.

The excuse? He had sent an e-mail to Peter Hermann of the Sun regarding a prisoner that corrections officials mistakenly released after he impersonated another inmate. It hit the media last winter, and Riedl provided some factual details to Hermann about the release along with his interpretation of those facts, namely, that they "point glaringly to our stupidity in DOC" and that the release was due to "gross monumental incompetence."

Hermann, this year's "Best Journalist'" (along with Justin Fenton) in the City Paper's Best of Baltimore edition, then inquired about it with Public Safety officials with enough lack of delicacy that they instantly delved into Riedl's e-mail and fingered him.

And despite Riedl's clear First Amendment rights to speak on an issue of public importance, Secretary Gary Maynard fired Riedl. First Amendment rights apply only to those who can pay a lawyer to protect them.

Some will now perceive Riedl as a 'disgruntled' employee, even though Maynard was the disgruntled one. And others will view him with suspicion because he spoke out, because he didn't protect his own interests first like most of the rest of us do.

But Riedl is the kind of guy the public needs to shed light on how their government operates. And even though Maynard took away Riedl's livelihood, he did the rest of us a favor.

Because Riedl can now speak freely. And now we know about Willie Featherstone, and our monumentally incompetent system.

The Non-Fix to the Bail System

2010-10-09T22:06:00.005-04:00

How would the citizens of Maryland like to pay the many millions it would cost to provide a lawyer for every single person arrested throughout the state?

That's the prospect created by Baltimore Circuit Judge Alfred Nance's decision last week in Richmond v. District Court, in which he ruled that the poor are entitled to a lawyer at their first appearance before a bail commissioner after arrest. While the decision in theory applies to the poor, in reality the state would have to make lawyers available 24 hours a day, 365 days a year throughout the state at every commissioner hearing.

In reversing a decision he first made in 2007, Nance relied upon a 2008 Supreme Court case that arose out of Texas. A defendant arrested for a handgun offense was taken to a magistrate (the Texas version of a commissioner) where he was told of the charges against him and given a bail. He posted the bail but was denied an attorney because he wasn't in jail and prosecutors hadn't yet decided whether to pursue the case.

The justices held that his appearance before the magistrate made the defendant eligible to have an attorney appointed for him to handle his case. They did not rule that he had the right to an attorney at the hearing itself. (Much like turning 16 makes one eligible for a driver's license but doesn't award the license on the 16th birthday.) Maryland already offers free attorneys to poor defendants who are released after seeing a commissioner.

Nance is known more for inappropriate conduct towards female attorneys and rude, boorish behavior towards persons in his courtroom than for his legal acumen. In any event, his decision will be appealed, and whoever loses before the state Court of Appeals will probably appeal to the U.S. Supreme Court, so the final decision will take awhile.

As I pointed out in Lots of Money, Little Justice, appointing lawyers to represent defendants before bail commissioners would bring enormous cost to taxpayers while providing little benefit in return. 46% of defendants already are released statewide without posting any bail (and 47% in Baltimore.) Adding lawyers would slow the commissioner process down significantly and hold people in jail longer without appreciably changing the results.

The driving force behind the Richmond v. District Court lawsuit is Doug Colbert, a law professor specializing in bail issues. Colbert's a darling of radio talk show host Marc Steiner and is frequently published in the Baltimore Sun, but his credibility within the criminal justice system suffers from the fact that he obscures and omits facts that are inconvenient to his point of view. He also merges two distinct issues in his advocacy: the unfair impact of the bail system upon the poor, and his belief that more people should be released before trial regardless of their economic status.

For example, in the Richmond case he presented all his clients as being inappropriately incarcerated, failing to mention when they had failed to appear for their trial, had committed more crimes while waiting for trial, or really weren't poor and unable to make bail. To Colbert, these facts aren't relevant and are harmful to his argument, so he leaves them out.

And his solution is to throw public money at the bail system by adding another layer to the process. Actually, Colbert suggests two 'reforms': give every arrested person a lawyer at the bail hearing, and have prosecutors recommend the release of defendants. In other words, let's spend millions and millions of dollars to hire extra defense attorneys and prosecutors around the clock throughout the state of Maryland to do what bail commissioners are already paid to do.

I will give Colbert this: he has called attention to the fact that our bail system does need reform. While he undermines his cause and credibility with misleading descriptions of his clients, dubious claims about cost-savings , and expensive, unproven solutions, he's right that something needs to be done.

And it won't cost a thing, except the willingness to dispense with the status quo. I'll expand on this in my next blog on the bail system.

Reflections on the Election

2010-09-27T14:30:00.000-04:00

Anyone who has followed my blog knows how I feel about the change in the Baltimore state's attorney's office that's coming this January.

But I was glad to see the compliments bestowed upon the defeated incumbent, Pat Jessamy, after the voters pronounced their verdict. As sharply and persistently critical as I have been of her professional performance, I have always respected her personally. Never did I question her commitment to public service. Never did I see her personal or political concerns influence an individual case.

I remember one time when a city prosecutor was arrested for disorderly conduct. I called Jessamy late at night to tell her about the arrest and to discuss how to charge the case. She asked what I wanted to do, and I told her that to be consistent with our charging practices I would decline to charge the case because there was little point to prosecution. (The prosecutor was drunk and interfering with police and gave them no choice but to arrest her. A classic "abated by arrest" scenario.) However, I said, perhaps Jessamy would be concerned about public perception.

Immediately she said that she would not want to treat the prosecutor differently than any other member of the public. That was always my personal experience with Jessamy, making the case decision she thought was best whatever the consequences.

Her downfall came with the people she surrounded herself with, yes-people chosen for their personal loyalty rather than for competence and ability. In particular, she gave unfettered authority to Margaret T. Burns, the most disingenuous and divisive person I have ever met in my professional life.

Burns provided the public a small glimpse of her style in the Zach Sowers case, when she tried to undermine the widow of a murder victim who had criticized the handling of the case. Burns suggested that the victim hadn't been murdered after all, and that the widow had blocked the truth by refusing an autopsy. Had Jessamy been wise enough to repudiate Burns for these ridiculous, even malicious comments she probably would still be state's attorney. Instead she hitched her wagon to Burns and went down to defeat.

It's time now to look to the future, and I see a new energy and creativity coming for the prosecutor's office. Bernstein has a huge challenge before him, facing a culture that's entrenched not just among prosecutors but throughout the criminal justice system. But he had the guts to take on an incumbent that no one gave him a chance to beat, so I have to like his chances.

One thing that shouldn't take too long to improve will be the police-prosecutor partnership. Reading Peter Hermann's opinion piece on Sunday, one would think the problem's been a wide philosophical divide that needs to be bridged. He writes, for example:

"And sorry, it's not the bickering that causes the suffering [for city residents], as a colleague has repeatedly and rightfully pointed out to me. The bickering is a result of what has been a fundamental difference in how Jessamy and various top officers and mayors have wanted to police and protect the city."

Sorry, it is the bickering that caused the suffering. The bickering reflected a refusal to work together, first by O'Malley excluding Jessamy from formulating his crime strategy, then by Jessamy for rejecting every idea emanating from the police while failing to offer her own concrete plan. Had they been talking, they even could have come to consensus on "zero-tolerance", finding better ways to accomplish the intended purpose. It wasn't a philosophical divide between police and prosecutors, it was plain old personal in-fighting. I was there. I saw it.

Besides, once O'Malley left for Annapolis Jessamy did come on board the Gunstat program (while Burns continued to sling arrows, albeit more subtly.) There was no divide on the philosophy of fighting guns and violence. The dispute boiled down to mutual effectiveness and ineffectiveness, and who to blame.

So there shouldn't be far to go to form a working partnership now. That won't make Bernstein a "rubber stamp" for police. It just means that they can talk and work out differences professionally and in the best interest of the public.

And one false issue raised by the campaign rhetoric was the idea that one must choose between treatment and prevention programs and locking up criminals. Not so.

Bernstein can and should keep staff assigned to alternative, problem solving programs such as Drug Treatment Court, Mental Health Court, and prostitution diverson. These programs handle those whose behavior may be treatable and preventable, and they do good work. Bernstein doesn't need to divert resources from these programs, he just needs to work smarter and more effectively at prosecuting the violent criminals. He must tap into the strategical resources available to better target those criminals. He already brings the trial expertise needed to make more charges stick.

January can't come soon enough. In the meantime, I will be writing this fall about aspects of the criminal justice system that the Maryland General Assembly should address when it convenes, also in January. And no doubt won't.

TIme for Change

2010-09-10T12:28:00.000-04:00

So voting time has come.

Just a little over two months ago I didn't expect the city to be in this position. Whatever happens, the city owes Gregg Bernstein its gratitude for opening up debate and offering a real choice on such a crucial office as State's Attorney. The campaign forced Jessamy to respond to issues in a very illuminating way, confirming much of what insiders have known for a long time.

Sheryl Lansey filed to run for State's Attorney, too, and I heard her speak at the University of Baltimore debate. She's a mature, educated, thoughtful, woman, but the more she spoke the more it was obvious that she couldn't begin to run the State's Attorney's office. It would be like me applying for school superintendent. I may have my opinions on education, but that doesn't qualify me to run the schools.

But Bernstein, he's another story. He's intimately familiar with the issues and challenges, he's a top trial attorney, and when he talks it's obvious to those inside the system that he knows his stuff. How effective will he be at accomplishing his goals? Well, we always take a chance on that when we elect someone. But we have Pat Jessamy's actual record to tell us that it's time to try someone new.

So here's my summary of the reasons for change:

1. Jessamy exhibits a personal lack of trial skill and judgment. A prosecutor who thinks she has to subject the victim of a robbery to cross-examination at a preliminary hearing, even when she has a videotape of the robbery, is clueless. A prosecutor who pursues an announced policy of not prosecuting single witness cases, instead of evaluating each case individually, is likewise clueless. Not to mention dangerous to public safety.

2. Jessamy rejects accountability. In her own words: "I don't do conviction rates..." "I don't accept blame." She cannot even say what she could do better. All of us can do better, but not Jessamy.

3. Jessamy ignored her own, state-funded program to focus attention on repeat violent offenders, the War Room. She can't tell us what happened to the cases of those offenders. She contends that to do so would be "smoke and mirrors."

4. Jessamy fights with the police through her spokesperson, Margaret T. Burns. Burns takes pathological delight in torturing the police by tossing all blame their way. Jessamy expressed surprise, which stuck me as genuine, that Police Commissioner Fred Bealefeld supports Bernstein. Another sign of how clueless and insulated Jessamy is from what happens in her office.

5. If Jessamy is re-elected, the blame game and tension will become even more unbearable, as Burns will exact revenge. She loves that stuff, I've seen it first hand. And maybe the best police commissioner we've had in a while will retire to find a less thankless job.

Jessamy pretends that her conflicts with the police are about protecting citizens from police. Ironically, if she worked with the police she could be much more effective at reigning in bad practices than she is now. Ultimately, however, the State's Attorney has no power to protect citizens from police, other than to prosecute bad cops (something Jessamy can boast little success at doing.) Her conflicts are really about excusing her own failings.

6. Jessamy raised images of the pre-civil rights 1950s, essentially asking black voters to vote for her because she is black. (And we, black and white, don't need any commentators or professors to interpret for us what she was doing. It was clear.)

Jessamy and the even more overt Frank Conaway ("They are trying to steal a seat from us") are attempting to inject fear that black voters would lose all power if a white person comes to office. The power isn't in the office, it's in the vote. City residents, who are predominately African American, voted in white O'Malley for mayor, then black Dixon and Rawlings-Blake. Their power didn't go anywhere. And if Bernstein fails them, they can kick him out.

Candidates like Jessamy and Conaway are phonies. It isn't about racial pride. It's about keeping their own butts in office. Jessamy's act is old and undistinguished, and the most she can offer now is racial fear. If her record supported her re-election, she wouldn't even have needed to go there.

For all these reasons, its time for change. It's time for Gregg Bernstein.

The Sun and Pat Jessamy

2010-09-07T21:41:00.009-04:00

The Sun accused Gregg Bernstein Tuesday of "unethically" stealing its "credibility." Apparently some Bernstein campaign materials cited "The Baltimore Sun" as the source of a campaign claim without clarifying that the information came from a Sun columnist, not from the Sun's editors or reporters.

I almost had to laugh. For years the Sun has received unethically leaked charging documents from State's Attorney Pat Jessamy. But it never reported on her unethical behavior because it was the beneficiary.

As for credibility, this is a newspaper that knows that Jessamy's press aide, Margaret Burns, is ethically challenged. It also knows that she has fed them stories for years to make the police look bad. But it's done nothing to enlighten the public about it, making it a bit ironic for the Sun to complain about stolen credibility. It can't be stolen unless one has it.

But originally I had planned to revisit a previous editorial suggesting that it wasn't quite fair for Bernstein to focus on Jessamy's conviction rate because "police, judges, witnesses and juries (not to mention the caseload, budget and other resources provided to the prosecutor's officer) bear some of the blame..."

I wonder how the editors feel now knowing that Jessamy doesn't "accept blame" at all. Or that she believes conviction rates are "smoke and mirrors" and she doesn't "do" them. Or that she can't tell us what happened to the repeat violent offenders in the War Room program.

They know these things now because Gregg Bernstein challenged Jessamy and forced her into the public eye. Because she said these things in response to campaign questions on radio shows and in debates and can't hide behind the spin of Burns. Statements the Sun has still not reported on.

The campaign was never about whether Jessamy deserved all of the blame for an ineffective criminal justice system, but about whether she could be doing a better job as state's attorney. It's quite clear from her own words that she is not and never plans to be accountable for her own performance.

But I submit that Jessamy is more to blame than anyone else for the current state of our criminal justice system for two reasons.

First she managed the War Room, which showed her how multiple agencies pursuing their narrow, independent missions failed to identify dangerous criminals and released them repeatedly to the street. When I as the War Room supervisor wrote a comprehensive report in 2004 about this she suppressed it, submitting a vanilla version to the Legislature instead. She assured me that she would handle the issues out of the public eye.

But she never did. She never approached either her own staff or any other agency with War Room data and recommendations.

And so I wrote in a 2007 report: "What the War Room has observed over the past three years is that the culture that led to the need for a War Room has not changed much over the years. The system continues to fail to 'focus' upon offenders that are responsible for violence...The 'war' on violent crime needs to come out of a 'room' and into a way of thinking and acting."

Here's what Burns/Jessamy wrote for the Legislature instead: Over the past three-years [sic], a very capable team of law enforcement and corrections partners have established a coordinated effort to meet these original goals, and it appears their efforts have complimented [sic] the criminal justice partnerships and vision to reduce violent crime in Baltimore and make our community safe through the addition of the War Room project...The War Room is a criminal justice success story..."

An incoherent report (and blatant lie) never challenged or questioned in any way by the Sun, by other news media, by legislators, or by others inside the criminal justice system, before or after I left the prosecutor's office. And Jessamy put my name on it. Talk about stealing credibility.

The murder of off-duty police officer Troy Chesley is just one example of how Jessamy's failure to do anything to effect change led to tragedy. Chesley's murderer was on bail for two separate handgun offenses at the time of the murder. Jessamy had never gone to the District Court judges to discuss War Room bail recommendations. Nor had she ever made her own staff seek bail revocations when violent offenders on bail committed another crime.

The robbery case of John Wagner, who is now accused of murdering Stephen Pitcairn, is another example I've discussed before. Jessamy failed miserably to take basic steps to proceed with a very winnable case against a War Room offender, blaming the police and the victim in a reprehensible way to escape any accountability. She also made sure to point the finger at the probation judge, though again she had never gone to the judiciary to discuss War Room offenders and probation proceedings.

The second reason Jessamy deserves more of the blame is because she has actively undercut her law enforcement "partner," the police department. Some examples include:

Spreading the false notion that all arrests for which prosecutors declined to issue charges are "illegal." See The Lie That Won't Die.

Planting a story with TV stations that the police were not solving enough homicide cases.

Feeding statistics to the Sun and successfully urging it to characterize the police citation program as a failure. The police wanted to write more citations and make fewer arrests to keep people out of jail and police on the streets. Instead of helping to accomplish this worthy goal Jessamy tried to undermine the program.

Criticizing a police plan to take fingerprints from offenders on the street. Police hoped to write more citations by enabling positive identifications. Without it, offenders could use a phony name, fail to appear for court, and have the wrong person arrested for it.

Tracking the results of cases in which surveillance cameras were used solely for the purpose of arguing that the cameras were a waste of money, even before the program got going.

And this doesn't even count the many times she has blamed poor police investigations for not being able to prosecute, even when, as with John Wagner, the police didn't do anything wrong.

So we have a prosecutor who never formed working partnerships with other criminal justice agencies to address War Room offenders and who has actively worked against the police department when it tries to improve law enforcement techniques. She has used the police and judges to explain her own failures.

And through it all the Sun has remained silent and reported Jessamy's spin.

The Sun can't shift this to witnesses, judges, juries, police or lack of resources. It's all on Jessamy, whether she "accepts" it or not.

In Her Own Words

2010-09-01T21:52:00.006-04:00

"I don't do conviction rates because I think conviction rates are smoke and mirrors."
Patricia Jessamy, State's Attorney for Baltimore City, 8/30/10

I didn't think Jessamy's appearance on the Marc Steiner Show was going to reveal anything new or interesting, especially when Anthony McCarthy, the co-host, lobbed softballs for her to hit.

He recounted, for example, how the citizens of Charles Village gathered after the murder of Stephen Pitcairn and clamored to hear from Jessamy. I thought he was going to ask why she declined to speak to them. Instead, he wanted to know why they put everything "on [her] shoulders." When he asked about her relationship with the police, it was to find out how the police could be trained to bring her better cases. You get the picture.

But Steiner wouldn't let Jessamy off the hook so easy. When he persisted about her inability to get along with police commissioners she blamed the media for creating that perception, which fit perfectly with a statement she made in another context: "I don't accept blame." She never does.

But it was near the end of the interview that Steiner exposed the essence of Jessamy, her failure to be accountable when it comes to violent criminals. He said he wanted to ask Jessamy a question she had "never answered" namely, what happened to the War Room offenders, the "worst of the worst."

"I don't do conviction rates because I think conviction rates are smoke and mirrors."

Oh, my goodness. Prosecutors charge cases when they believe the evidence shows that a defendant is guilty, and then their job is to convict. It's a fundamental measuring stick of their performance.

Not that conviction rates tell the whole story. For example, I would view with suspicion a prosecutor that boasts a 100% conviction rate since it suggests that he or she will only try slam dunk cases, not those with reluctant witnesses or other obstacles.

But Jessamy doesn't "do" conviction rates at all, meaning she doesn't have to explain anything to anyone. Instead she created a novel, fanciful theory of measuring her success: what percentage of those committed to prison come from Baltimore.

Jessamy trotted this out for the first time in her WYPR debate with Gregg Bernstein, her main challenger. It's her story and she's sticking to it. She told Steiner that 31% of charged cases in Maryland come from Baltimore but 60% of the prison commitments come from there. Therefore Baltimore criminals go to prison twice as much as other citizens for serious offenses, giving her the highest conviction rate in the state.

Talk about smoke and mirrors. Her statistics don't account for the fact that she drops 20-25% of cases before they are charged, something other counties can't do because they don't have prosecutors in a central booking facility like Baltimore's. And that those cases are the minor kind for which people don't go to prison.

And she tells us nothing about the type of crime and rate of crime in each county, or how Baltimore's unique rate of violent crime rate skews the percentages. It boggles the mind to hear her rely on prison percentages, especially when she has her own statistics right in front of her.

But that, of course, is her Achilles heel. For years she ignored the War Room and its mission to focus on violent offenders, and now she's stuck with its sorry conviction rate. And Bernstein cites her own reports to support his claim that in 2010 she convicted only a third of those she charged with illegal gun crimes.

So Jessamy is running as fast as she can from her conviction rates, using the smoke and mirrors of prison percentages. When did we ever hear her tout them before? Not until someone exposed her performance.

She made other interesting claims during the Steiner Show. Like how she invented the federal Exile program, and how she changed the national focus of prosecutors from drug interdiction to violence. Jessamy deserves about as much credit for these claims as Al Gore does for inventing the internet.

She claimed she knew how to try cases and didn't need to "grandstand" by doing it now. But Jessamy never prosecuted violent offenders. She was first hired in Baltimore to handle white collar fraud cases, and after just a few years doing that became the deputy state's attorney in charge of administration, then State's Attorney. She hasn't tried a case for 22 years, but claimed she advises prosecutors about courtroom matters.

I never saw her do it, but perhaps things have changed in the 32 months since I retired from her office. Perhaps she gave courtroom advice to the prosecutor who dropped the John Wagner robbery case, leaving Wagner free to murder a young Hopkins researcher in a subsequent robbery. She certainly stands by it, insisting to a caller that the victim had to testify under oath at a preliminary hearing for her to proceed with the case. When any other competent prosecutor would have done everything possible to avoid the victim's testimony at the hearing.

And finally, when asked if there was anything that she could have done better, Jessamy resorted to her old lack-of-resources complaint, citing furloughs and vacancies that impede her job.

But that hasn't stopped her from employing a $102,000 a year media spokesperson. And an assistant to that spokesperson who makes $75,000, more than many prosecutors. That's for an office of only 400 people. The police department, an agency that's in the news every day, with a police and civilian force of nearly 4,000 people, employs a director of public affairs who makes less than six figures.

But these are corollary issues next to the fundamental revelation of the Steiner interview. And that's that Pat Jessamy doesn't "do" accountability.

The Dawson Tragedy and its Failed Response

2010-08-29T12:05:00.001-04:00

Just as I was about to write a blog on state senator Nathaniel McFadden and the 2002 Dawson murders, presto! There he was all over the news, talking about the Dawson murders.

But my perspective differs radically from McFadden's. He accused state's attorney candidate Gregg Bernstein of exploiting the deaths of the Dawsons by airing an ad featuring the former witness protection coordinator for incumbent Pat Jessamy. In it, she criticized Jessamy's lack of effort to protect the Dawsons.

McFadden, who has endorsed Jessamy, railed about the impact of the ad on the Dawson relatives, even though he hadn't talked to any of them. And the one relative who could be contacted by the Baltimore Sun wasn't upset at all. So who was exploiting whom?

But I had something much more fundamental in mind for this blog.

When the seven Dawsons were firebombed to death in retaliation for reporting on drug-dealing activity, it was Senator McFadden, who represented their neighborhood, putting himself in the forefront of the movement to 'do something.' He helped spearhead and fund the creation of the "War Room" to identify and focus upon violent offenders, and was visible at press conferences and tours when the War Room began operation.

But politicians move on, and so did McFadden once the spotlight faded. It apparently doesn't matter to him now that his response to the terrible Dawson tragedy went down the toilet for lack of effort by the person he endorses, Jessamy. He shows the same lack of courage as the other city politicians who have either endorsed Jessamy or said nothing, even when in a position to know better.

But the Dawsons were murdered in McFadden's very own district. He told his constituents that he found a way to improve their safety through the War Room. And then paid it no attention whatsoever. Every year its funding got renewed without a meaningful review by McFadden or any other legislator. Frankly, nobody cared. They all moved on, until Bernstein's ad appeared.

But the War Room, the response to the Dawson tragedy, failed city residents, and one need look no further than the high profile murders of off-duty police officer Troy Chesley and Stephen Pitcairn to see it. I have written on these cases before in Baltimore's Failed War Room and Shame on Who? But to sum it up briefly:

Brandon Grimes, the murderer of Chesley, was out on bail for two handgun cases at the time of the murder. Although notified by the War Room of his arrest on the second handgun charge while pending the first handgun case, Jessamy's gun unit did nothing to revoke his first bail. War Room arrest notices specifically urged trial prosecutors to try to revoke bail in cases like this, but were ignored in every instance.

The accused murderer of Pitcairn, John Wagner, had been in custody a few months before the murder for a robbery that was caught on videotape. Although he met War Room criteria, prosecutors dropped the case at the first hearing because the victim was not there, even though he wasn't needed. And prosecutors allowed Wagner's probation violation hearing to be dismissed without ever bringing the videotape into evidence. Had probation judge John Howard seen that videotape perhaps he wouldn't have let Wagner go.

Jessamy has been boasting this campaign about having a unit dedicated to probation hearings. But she had always had prosecutors attend probation hearings. What was new was that Martin O'Malley, as mayor, had given Jessamy funding for four new prosecutors specifically to focus on violent offenders at probation hearings.

As head of the War Room, I was excited. I had sent War Room prosecutors on several occasions to probation hearings, but could not do it on a systematic basis due to staff limitations. I immediately requested a meeting with Jessamy's Circuit Court administrator and presented a plan to introduce evidence normally used only for trials directly at probation hearings for War Room offenders.

Jessamy's administrator refused. First she said she didn't have enough staff because she was supposed to cover all probation hearings. In other words, her vision was to simply do what had been done before with different personnel. When I persisted, she refused again because "the judges won't like it."

Finally I said I would do it myself. Only to have her prohibit War Room prosecutors from taking evidence to probation hearings. Yes, that really happened.

Now Jessamy claims that she does focus on violent offenders at probation hearings. That began to be true in recent years for federal targets, targets like Damian Wilson. But for state War Room offenders like Wagner, well, we can see the results for ourselves. It's still business as usual. The kind of business that was done at the time the Dawsons were murdered, way back in 2002.

But that's okay with McFadden. Heck, it's even okay that Jessamy walked out on his bill to strengthen penalties against illegal handguns. Because McFadden is doing politics as usual. And politics is more concerned with the perception of results, not their reality.

When Gregg Bernstein brings up tragic murders to illustrate why we need a new state's attorney, that's not exploitation. That's providing information to voters about the very person who is charged, along with the police, of making the city safer. It's information that Jessamy has controlled for years, and that McFadden and his political colleagues have enabled to remain in the dark.

No Accountability, As Usual

I did not work with Jessamy's witness protection unit and cannot provide any insight as to how it worked with respect to the Dawson case. But I hear the same old failure to assume accountability coming from the mouth of Margaret Burns, Jessamy's spokesperson.

Ditanya Madden, Jessamy's witness protection coordinator, told the Sun that the Dawson family protection needs were never brought to her attention. According to the Sun's interview of Burns, that's because "Madden had set up a system where only those families who agreed to receive assistance would fill out forms for Madden's unit."

So Madden had set up the system all her own? Either Jessamy agreed with it or exercised so little supervision she didn't know about it. One way or another, Jessamy enabled a witness protection unit to operate without having all protection issues brought to its attention.

Perhaps that's justifiable. But to put the responsibility on Madden the way Burns did, isn't. It's exactly the lack of accountability that characterizes Jessamy and her performance as state's attorney.

Just the Facts, Please

2010-08-22T14:19:00.008-04:00

The Baltimore Sun editors weighed in on the city state's attorney election last week after fund-raising reports showed substantial support for challenger Gregg Bernstein. In it, they made sure to blunt Bernstein's two major criticisms of incumbent Pat Jessamy without addressing any of her own claims.

First they said that the whole system, not just Jessamy, is to blame for low conviction rates. (I will address that one soon.) They also surmised that voters don't care about her poor relationship with police commissioners these last 10 years because they re-elected her in 2006 (over an unknown candidate) and must therefore like her "feisty" attitude. They even mentioned their own endorsement of Jessamy four years ago, failing to note their emphatic endorsement of another candidate the election before that.

But my favorite part was how they urged voters to make up their minds based on "all the facts." That's funny, because the Sun has done so little over the years to give us facts about Jessamy's performance. Instead it has focused on conflict-based reporting, the kind that it now wants voters to ignore.

The editors cautioned voters about making too much of yard sign controversies and Jessamy's ill-advised analogy comparing the city courts to public schools. They asked who "would do the best job making the city's streets safer?"

That's the right question. But what guidance are we getting from the Sun? Not much before that editorial. And after it, a front-page article on the race factor, as if that's news to anybody when white and black candidates square off. But for those voters more interested in performance over race, what "facts" and "evidence" does the Sun intend to offer up?

For years now local media outlets have fed off stories spooned to them by Jessamy's office. In Feeding the Press I chronicled an incident where Jessamy spokesperson Margaret Burns extolled an arrest that, upon closer examination, revealed the opposite of what she intended. It showed that Jessamy's office could have but failed to do anything to take a violent criminal off the street prior to his beating up two women. Doesn't that theme sound familiar?

That was two years ago, and nothing has changed. Jessamy issued a press release last week boasting about a prison sentence one Damian Wilson got for violating probation. It seems Wilson was a target of the federal Violent Repeat Offender (VRO) program after citizens complained about his drug-dealing activity, and city prosecutors were tasked with doing something because he was on a city probation.

But a little work on the facts behind the press release reveals that Wilson is a classic example of a revolving door criminal...that his belated incarceration should be credited to the leadership of federal prosecutors...and that Jessamy did nothing meaningful on her own.

Fortunately the City Paper did the work, and here's the story: Wilson accumulated a series of arrests beginning at age 18. (Who knows what his juvenile record told prosecutors.) Car theft, drug dealing, drug dealing with a gun, handgun possession, resisting arrest, assault, armed robbery--the typical pattern of a dangerous offender. None of the criminal charges resulted in convictions. But in 2002, at age 28, Wilson was finally convicted of drug dealing and got--what else?--probation, with six years in prison suspended.

Wilson went out and picked up some assault and harassment charges against his girlfriend, which prosecutors dropped. But police nabbed him again for selling drugs. And all he got was a 2004 plea deal that bundled his probation violation with his new felony drug case for a grand total of two years.

In 2006 Wilson was convicted of driving on a suspended license with no consequence, followed by some more domestic violence incidents. But in 2007 police nailed him again selling drugs, and this time he got...

12 years! Can it be? Nope, 11 years were suspended, and he served the one year he got while waiting in jail for his case to resolve.

Wilson was arrested several more times, including another attempt to sell drugs, and was convicted on two minor charges with little consequence. The judge who had him on probation issued a warrant, but Wilson was allowed to stay on the street while he racked up his arrests. It wasn't until May, 2010 that another warrant for violating probation was issued and Wilson finally put away. And only because the federally-led VRO program got involved.

Was all of this fiasco Jessamy's fault? Probably not. But with Wilson's criminal history staring her in the face she allowed multiple plea bargains on drug-selling cases that kept him on the street and criminally active. And did nothing to violate his probation as he piled up more arrests for two more years.

Facts like these can be found everywhere. They are why Bernstein is running, why so many have contributed so much to his campaign so fast, and why the police commissioner put a Bernstein campaign sign in his yard.

But it doesn't take experts to recognize these facts. Citizens in the community can see the evidence that the Sun still seems to be searching for, when characters like Wilson keep showing up on their street corners.

They know who's not making them safer.

A Live Blog of the State's Attorney Debate

2010-08-12T11:56:00.013-04:00

Today WYPR Fm 88.1 is hosting a debate between challenger Gregg Bernstein and incumbent Patricia Jessamy for the state's attorney for Baltimore City. The state's attorney is the top prosecutor in the city. My intent is to report on the discussion as it goes along, and then offer some thoughts and observations.

12:03: Dan Rodricks, the moderator, introduces them by saying that Bernstein claims that Jessamy has the lowest rate of conviction in the state and that it's time for a change, while Jessamy touts her record on gun legislation and repeat violent offenders.

12:20: Rodricks, after reviewing their qualifications, clarifies that this is not a formal debate. He plans to throw out some questions and let callers call-in. He asks Jessamy why they should re-elect her, and she says it is to continue the progress and partnerships that she has made. She says that her focus on violent offenders has been proven by "commitments to the Department of Correction," that is, by the numbers of offenders sent to prison by Baltimore. She is running to "dispel the lies" because Baltimore is sending more people to prison than anywhere else.

She goes on to say that she formed a gun team of prosecutors, created a wiretap team, and cross-designated prosecutors as federal prosecutors. "I am tough, I am smart, I am truthful."

Bernstein replies that Jessamy over course of her tenure has "concede[d] our streets" to criminals that revolve through the doors of justice. "I will take personal responsibility" to convict criminals he says, and will not engage in the blame game. When asked how he knows that Baltimore has the lowest conviction rate in the state, he cites an Abell Foundation report on low conviction rates by juries when Baltimore city was compared with other counties.

Jessamy challenged that report as being "unscientific" and returned to her claim that prison statistics is the measuring stick.

12:38: Bernstein replies that her own statistics only show a 45% conviction rate in gun cases.

Jessamy just called Bernstein a liar, saying that "he continues to lie." She doesn't say how and in what way.

Rodricks asked Jessamy how the city would become a "police state" if Bernstein is elected, as she claimed. She begins to ramble and talks about the "natural tension" between police and prosecutors and their different burdens of proof before saying that Bernstein would be a "rubber stamp" for the police.

A citizen e-mails a question to Bernstein about how would we know that he wouldn't be a rubber stamp. Bernstein says he would work independently but also cooperatively with the police. He points out that Jessamy has, at most, successfully prosecuted 1-2 police officers over the years. But that anyone knows the two agencies need to work together.

Jessamy again says Bernstein is lying. When asked by Rodricks to compare her relationship with Bealefeld to past commissioners, she says her relationship with Bealefeld was "outstanding" until this campaign.

A caller named Marty says that it's well-known that the best place to get charged is in Baltimore, because they get the best deals and the least fight from prosecutors. Jessamy goes on again to say that most commitments to prison come from Baltimore. Rodricks points out that that could be caused by high crime or other factors. Jessamy repeated her assertion and called statements that her conviction rate is low "lies."

Bernstein brings up the Pitcairn murder case. He spoke to the witness that Jessamy said was uncooperative. Prosecutors only spoke to him once, and gave up at a preliminary hearing when they didn't even need a witness. Bernstein says this is an example of failing to properly focus efforts.

Jessamy: "He doesn't even understand how the system works." Jessamy says "it would have been better" if police had taken a statement from the victim. And says she wanted to get more witness intimidation legislation from Annapolis.

12:41: Caller from Bolton Hill asks Bernstein about citizen concerns about police conduct and lenient judges. How would Bernstein deal with that? Bernstein says we have to start somewhere, and he would become more strategic. He has watched prosecutors fail to do that, they ask for the same sentence over and over and this makes it hard for judges to make their decisions.

12:48: Jessamy again says that Bernstein has no idea what he is talking about, and that she has units in her office for certain types of cases that know exactly what they are doing.

Jessamy says they have a way to identify who the "worst of the worst" is because she is the "technology queen." She says she connects all the agencies with technology and has won an award.

Bernstein says if she is the queen, her kingdom is in shambles. Her prosecutors don't have voicemail, or blackberries. But the way to target the worst of the worst is to work with the police to identify who they are and to give prosecutors the resources they need.

12:51: Jessamy says her prosecutors identify the worst of the worst at Central Booking. Bernstein responds that the War Room, the program she is talking about, has a conviction rate of only 35%. When Rodricks asks how he knows that, he cites my study of War Room offenders. Jessamy can be heard laughing, but can't respond because Rodricks takes a call.

12:58: In response to a call from a caller, Jessamy touts her domestic violence program and how successful it is. Bernstein states that this represents a disconnect with reality, because 80% of domestic violence cases are dismissed.

Jessamy says we have to look behind the statistics. And that there are elements of the law that have hampered prosecuting domestic violence cases.

A caller asks how Bernstein is going to put people in jail without evidence. Bernstein says he believes in innocent until proven guilty. And that his focus would be on targeting the most violent criminals within the context of the law and the burden of proof. Jessamy says she is already doing that.

In response to an e-mail, Jessamy says she doesn't try cases and has 200 lawyers to do that. She could make "a splash" by going to court but manages her office and knows everything that is going on. In answer to a question about his credentials, Bernstein touts his record as a trial attorney.

Debate concluded.

******************************************************************************************
My observations and comments:

First of all, whew. This was my first experience with live blogging and it was a challenge. I would suggest to anyone interested in this debate and in reaching their own conclusions as to what was said and how the candidates did, to please go to the WYPR website. I personally thought it was enlightening.

When Gregg Bernstein made his opening statement it sounded like he was reading from text, which diminished the message. But as he went on he was clearly the more relaxed and confident of the two. He cited statistics, had answers as to where he got those statistics and appeared familiar and conversant with what is going on in Jessamy's office.

And he continued to repeat that the key to being effective was proper strategy. As a matter of substance, he was exactly right.

I will caution him about this, though: if he thinks he is going to come in as state's attorney and suddenly get all his staff blackberries, he has never dealt with local government and limited budgets. That is a learning curve he will have to master quickly. To Jessamy's credit, she has dealt with a stubborn city bureaucracy for a long time and probably got about as much out it and in finding alternative sources of funding as it was possible to get. But her problem has been, as Bernstein points out, one of strategy and execution of that strategy.

Jessamy spoke in rapid cadence as though she felt stressed or lacked the time to get out all she wanted to say. Because she often used terms and concepts better understood by those within the system, I wonder how much the average citizen "got" what she was saying.

I particularly wonder how the average citizen reacted to the number of times she said Bernstein and others were "lying" and spreading "lies." I find the constant use of these terms against those who disagree with her disturbing. Her own "proof" of her success in convicting violent criminals lay solely in prison statistics. One could point out, as Rodricks did, that prison statistics might just indicate there's that much more crime in Baltimore. Talk about being an "unscientific" measure of her effectiveness.

But Jessamy insisted that those who challenge her on her conviction rate are "lying." For me, this method of debate just validates the view that Jessamy doesn't get along with people. She can't agree to disagree, or to learn from the perspective of other people. They are all liars.

Her other main retort was that Bernstein did not "understand" how the system worked. For example, she said that in the robbery case mentioned by Bernstein, she needed the victim to come to court to testify under oath at the preliminary hearing so that they could have his statement for later.

What an incredibly shocking explanation. No prosecutor wants his or her witness to testify at a preliminary hearing, subject to cross-examination and the probability of having minor differences in their later testimony used against them later at trial. Based on this debate, it is clear that Bernstein understands prosecutorial strategy far better than Jessamy.

I want to say something about the War Room. When Bernstein mentioned my report, Jessamy laughed. Perhaps she would have called me a liar, too, had she had the chance. But here's the rub: where are Jessamy's statistics? She has had the War Room case outcome data in her own database. But she never, ever looked at it or published it. And when given the chance to comment on my report by the City Paper, refused to do so.

Finally, her comment that her relationship with Police Commissioner Fred Bealefeld had been "outstanding" prior to Bernstein's campaign may have been the most revealing of all. Because in my opinion, she may actually believe this. It shows just how much authority she has ceded to her media spokesperson Margaret Burns, and how she refuses to believe that her tactics have sabotaged her relationship with the police. (It also demonstrates how professional Bealefeld has been that Jessamy thought their relationship was great until now.)

Pat Jessamy lives in a world where she does everything right, her critics are all liars and ignoramuses, and there must now be a conspiracy against her because things were hunky-dory with Bealefeld until Bernstein came along.

As I said, I found the debate illuminating.

Last post at 2:09 p.m.

The State's Attorney's August 10th Press Conference

2010-08-10T20:42:00.007-04:00

The following is a fictional account of the Baltimore state's attorney's August 10th press conference:

Baltimore State's Attorney Patricia C. Jessamy's Opening Statement:

Citizens of Baltimore, I know what you want. Accountability. Integrity. Effort. Results. That is why I am calling today for an investigation of Police Commissioner Fred Bealefeld.

Reporter: I don't understand. You want an investigation of whether, while in uniform, he asked a community activist/politician to meet with Gregg Bernstein, your challenger for state's attorney?

Jessamy: That's right. When the people ask for accountability, I make sure the police give it to them.

Reporter: You once asked all the employees of your office to sign a birthday card for display at your annual fund-raising birthday party. And your office spokeswoman once appeared at a woman's Republican club to denounce Mayor O'Malley's crime statistics, boasting how you were going to expose him. How do you to reconcile your position today with your using city employees to further your political agenda?

Jessamy: That's different. The people elected me. I can do whatever I want.

Reporter: What about your own accountability? Why didn't you take responsibility when your office dropped robbery charges against John Wagner a few months before his arrest for murdering Stephen Pitcairn? You claimed "no victim, no case," but you had a victim who worked for the city and a videotape of the robbery. You even dropped the case at a preliminary hearing, before the victim was even needed.

Jessamy: I am the state's attorney. A case is only as good as I say it is.

Reporter: You are suggesting today that the police commissioner isn't telling the truth about whether he was wearing his uniform when he spoke to a citizen about Bernstein. What about Zach Sowers, who was beaten into a coma by some robbers? Your spokesperson claimed after the trial and after he died that he only fell down between a couple of cars.

Jessamy: The police lied and the jury lied. That man was sleeping like a baby. When his whiny wife criticized my handling of the case, I had to tell the truth.

Reporter: You say you want results. Commissioner Bealefeld has presided over the largest, most sustained drop in violent crime these last few years. On the other hand, the program with which you were entrusted, the violent repeat offender program (War Room), failed because you ignored it. Can you comment on that?

Jessamy: I get credit for all violent crime reductions because I am the state's attorney. Unless crime goes up, of course, in which case the police get the blame. As for the War Room, no one else cared that it failed, not until that Gregg Bernstein brought it up. But I just issued a press release about a war room case that blames the judge, so I am not ignoring it any longer.

Reporter: You have openly criticized and fought with four police commissioners. Can we expect anything different if you are re-elected?

Jessamy: Absolutely not. You see, the only way I can get elected is to pretend that I am protecting the public. And if I can't protect them from criminals like John Wagner, then I will protect them from the police. And if I am re-elected, just wait until I get back at Bealefeld. You ain't seen nothing yet.

Reporter: How will you protect citizens from the police?

Jessamy: First, when police officers make bad arrests or fail to investigate cases to the extent we need, I will publicly blame them and the commissioner. It's a whole lot easier and much more satisfying than trying to work with them to fix the problem. Then when I have sufficiently undermined the public's confidence in all police officers, I will watch juries acquit criminals and blame the police again.

Reporter: What is your most significant accomplishment?

Jessamy: Working to get new gun and gang legislation.

Reporter: So why did you walk out on a Senate committee hearing on gun legislation?

Jessamy: Because I should have had the credit. Stephanie Rawlings-Blake didn't give me the credit. She gave O'Malley the credit. [Getting red in the face, stamping foot.] I should have had the credit! And if I don't get the credit, what good is the legislation?

Reporter: Is investigating the police commissioner for speaking to someone about supporting your opponent the most serious topic on your agenda this campaign?

Jessamy: It most certainly is. I need to get on camera. Gregg Bernstein is raising so much money--don't ask me how--that even appearing ridiculous is better than no publicity at all.

Jessamy's One-Sided, Never-Ending Feud

2010-08-08T22:10:00.002-04:00

Police Commissioner Fred Bealefeld puts a "Gregg Bernstein for State's Attorney" campaign sign in his yard. Incumbent State's Attorney Pat Jessamy calls the sign "divisive."

And the Sun provides this assessment: "The two top law enforcement officials--Jessamy is elected and Bealefeld is appointed--have feuded for years over policing strategies, quality of arrests and investigations, and whether prosecutors are aggressive enough in pursuing cases and jailing offenders."

Wrong, so wrong, and it's high time the Sun quit repeating it. Bealefeld hasn't feuded with anybody. He's been nothing but publicly respectful and privately as cooperative as it is possible to be with Jessamy over the years.

Jessamy feuded with Mayor Martin O'Malley. She expressed herself by attacking his three police commissioners prior to Bealefeld. Remember 2006, when Jessamy shouted at a raucous public meeting how she wasn't going to let the police "trample on the Constitution"?

But when O'Malley left for Annapolis, the incoming Dixon administration tried very hard to work with Jessamy. This included not only Bealefeld when he became police commissioner but also Sheryl Goldstein, director of the Mayor's Office on Criminal Justice.

When Goldstein was first hired, a third party suggested that Goldstein and I have lunch. I didn't know Goldstein, but I was asked to give her some perspective on Baltimore's criminal justice system.

I gave her my honest, gloomy assessment. Goldstein asked for the solution.

"We need a new state's attorney," I told her.

Goldstein didn't buy it. Off she went, full of energy, enthusiasm and optimism about her ability to work with Jessamy and effect change. The way I once felt.

But after three years, Goldstein's experience with Jessamy led her to the same conclusion I had reached: we need a new state's attorney. Goldstein's husband, Gregg Bernstein, an eminently qualified candidate, filed to run against Jessamy, and Goldstein took a leave of absence to help.

Jessamy's campaign boils down to this: Crime has gone down and she is the "only constant." And she will protect us citizens from the police. (That is not a misprint. She talks more about how she will stop the police than about how she will stop criminals.)

But her real slogan should be this: "A decade of attacking four police commissioners and the only constant has been me."

No good prosecutor rubber stamps police actions. The question is how do they handle their differences: behind the scenes, with mutual respect and a desire to keep improving? Or the Jessamy way, by publicly blaming the other?

Jessamy has posted articles on her website about cases dropped because of police failure to appear. (She doesn't mention how many cases she drops due to prosecutor failure to try.)

When an innocent teenager was kept in jail for months, Jessamy blamed the police by saying that they, and not she, have "charging rights." Except that she has charging rights and she charged the case.

She even trotted out the "lack of charging rights" excuse to absolve herself of any blame for unfounded rape reports...even though she had to know there was a problem and should have gone to Bealefeld about it.

She uses the term "legal insufficiency" to make people think that police aren't making good cases. I wrote an entire article about how Jessamy lies about "legally insufficient" cases. Here's just one example to illustrate: I once dropped a case because it was minor and documented my reason. But because the defendant was high-profile, and Jessamy wanted to embarrass the police, she told the media the case was "legally insufficient."

"Uncooperative witnesses" is another favorite Jessamy excuse, one that's especially tough to evaluate objectively. But it was exposed by the background of John Wagner, the man accused of stabbing Stephen Pitcairn to death. For Jessamy, a witness saying he doesn't want to come to court is a good reason to drop a robbery case without further effort.

At first the "uncooperative witness" excuse may not seem like police-blaming, but wait: Jessamy excused herself from not forcing the witness to court by blaming the police for not getting a taped statement from him. It's astonishing, since one has nothing to do with the other. And Jessamy didn't care that police had a VIDEOTAPE of the robbery, far better than any recorded witness statement.

These are just a few examples. Over and over, Jessamy has publicly blamed the police or planted media stories to make them look bad. When Jessamy did it to O'Malley's police commissioners, it was part of her feud with O'Malley.

But when she does it to Bealefeld now, it's to cover her own failures. Bealefeld, Goldstein, Mayor Sheila Dixon, and now Mayor Stephanie Rawlings-Blake--none of them engaged Jessamy in a feud, and all kept their own disagreements private.

But now there's a chance to change things. Now there's an opportunity to bring positive leadership and new energy to this city's criminal justice system. Goldstein and her husband Gregg Bernstein have created that opportunity. And with the stakes so high, Bealefeld refuses to stand completely on the sidelines.

When Jessamy calls Bealefeld's campaign sign "divisive" she is reaping what she sowed,the consequences of her own blame game. But Bealefeld didn't put up that sign to fuel a feud. It's much more fundamental than that.

Because anyone with inside experience with Jessamy--including Goldstein and Bealefeld--know what I know: that however hard they try, Jessamy won't work with them. She won't change her prosecutorial practices, won't eliminate her excuses, won't stop grabbing credit without the work, and won't show leadership.

And if re-elected, she promises more of the same.

The Man Without Principles

2010-08-01T22:01:00.011-04:00

When Baltimore city councilman Martin O’Malley first began making a name for himself in the late 1990s by criticizing the police department and advocating “zero tolerance” on crime, I asked a co-worker who knew him what she thought of him. Did he really care or was he just an ambitious young politician?

“Martin O’Malley doesn’t have a principled bone in his body,” came her reply.

So I was perplexed to learn later that she was driving voters to the polls to vote for him as mayor. “I like his positions on the issues,” she explained.

Her particular issue was gay rights. And after O’Malley was elected mayor, his housing commissioner, Paul Graziano, made news by referring to gays as “faggots” and making other hostile remarks before being arrested for disorderly conduct in a bar. O’Malley shrugged it off as the product of alcohol.

Had Graziano used the “n” word or made his remarks about blacks, he’d have been fired on the spot. But gays? Well, they didn’t carry the same political weight.

Pick up a scorpion who needs your help, expect to get stung.

O’Malley sure stung Baltimore when he praised State’s Attorney Patricia Jessamy last week. As I pointed out recently, this is the man who publicly insulted her and later gave her a fat raise to entice others to run against her.

Funny thing is, perhaps she could have been a more effective prosecutor had he stretched out the hand of partnership when first elected mayor. If he had invited her into his criminal justice policy circle, sought her opinion, and worked with her on innovative ways to end the revolving door of justice for violent criminals.

Instead, he played the part of Lone Ranger come to rescue the system and gave her the back of his hand from the get-go. He tried to bully everyone else into doing things his way, too. He insulted not just Jessamy but the chief judge of the District Court by sending her a cartoon “stick figure” drawing of his plan to reduce caseloads (so she could understand it.) And according to Jessamy, he carried around cardboard cut-outs of Jessamy and U.S. Attorney Thomas DiBiaggo to mock them for not personally coming to meetings of the city criminal justice coordinating council. (Of course, he stopped going himself once he ramped up his gubernatorial efforts.)

Though he claimed success, O'Malley largely failed in his criminal justice agenda, but that’s a whole other story. His biggest failure was in making an enemy of the state’s attorney, who learned from him how to bully her partner, lay off blame, and grab credit.

And in making her an enemy, he helped create a state's attorney who is obsessed with her image and disconnected from the realities and practices of her office. She’s a poor manager who does not want to be told bad news and surrounds herself with yes-people. And as her profile rises with each successive election her accountability diminishes accordingly, to where it's now about zero. We will never, ever hear Jessamy say what Police Commissioner Fred Bealefeld said the other day, that he was sorry he did not protect Stephen Pitcairn and the community.

I’ve spent over two years writing about issues that O’Malley as mayor knew were true. The leniency of judges and parole commissioners towards violent offenders, the unhealthy relationship between Jessamy and the police, the failure of Jessamy to change the prosecutorial culture that contributes heavily to the revolving cycle of violence.

But like a scorpion, O’Malley has turned on the city. When asked to weigh in on her performance, STING! He tells the Sun what a great job she's done. Here are some of his blatant lies:

“We have done a lot of positive things together.”

“[W]e talk every day.”

“…the higher level of functioning especially with the War Room…”

“I believe her leadership and the performance of that office has been a part of why Baltimore has been able to achieve historic reductions these last three years.”

And when asked if he was endorsing Jessamy, O’Malley said “I anticipate…yeah, stay tuned.”

It’s the Twilight Zone. I guess his close race with Ehrlich for re-election sent him spinning off into the alternative reality of politics. O’Malley praises Jessamy so he can share credit as governor for crime reduction "these last three years." And he doesn’t want to offend pro-Jessamy leadership and voters in Baltimore whom he may need for his re-election.

So he insults the intelligence of Baltimoreans instead. He’s fooling no one about his opinion of and relationship with Jessamy. And his endorsement of her or vice versa won’t have anything to do with their respective elections. He of all people has forgotten that crime is a local issue.

But he revealed that my co-worker’s assessment, made a dozen years ago, was and remains absolutely accurate. His own political ambition means more to him than anything else, including the city that launched his political career and helped carry him to Annapolis. He would give us more Pat Jessamy if it means he still gets to be governor.

STING!

Shame on Who?

2010-07-29T11:34:00.006-04:00

“No victim, no case.”

So pronounced the spokesperson for Baltimore State’s Attorney Patricia Jessamy after the robbery and murder of Stephen Pitcairn, explaining why prior charges brought against suspect John Wagner just four months before the murder had been dropped.

I practically choked on my breakfast reading that quote in the Sun. Prosecutors did have a victim. He was just giving them a hard time. So what? Victims and witnesses do that all the time in Baltimore. But it isn’t up to them to decide whether they will testify. It’s up to prosecutors, who have to protect the safety of everyone, not just the victim.

And they had surveillance video footage to corroborate the robbery for which Wagner was arrested. In fact, they were able to catch Wagner later using surveillance cameras as he boarded a bus. All they needed to do was get the victim onto the stand, however resistant he might feel.

But it gets worse. What the Sun story omitted was that the prior robbery charges were dropped only 19 days after they were brought. Prosecutors abandoned the case at a preliminary hearing in the District Court, a hearing to determine whether there was probable cause to charge Wagner with a felony.

Had a judge found probable cause, the case would have gone down to the Circuit Court, and no doubt would still be pending. And Wagner would have been in jail on July 25 rather than murdering Pitcairn because Commissioner Karen Daniels and Judge Theodore Oshrine had held Wagner without bail after his arrest on the robbery.

It’s even likely that prosecutors themselves recommended no bail, since Wagner qualified for the violent repeat offender (War Room) program. But as I have said repeatedly for over two years now, Jessamy ignored the War Room program once offenders got past the bail review stage. The prosecutor handling the hearing failed to recognize or care that Wagner—whose long arrest record began with two 1993 robberies and who was now on probation for a serious domestic assault—warranted a little extra effort.

But it's gets worse still. Because the prosecutor didn't even need the victim at the preliminary hearing. He could have asked a police detective to testify, because hearsay is admissible at preliminary hearings. And if he knew he had a rogue judge that forces victims to testify, he could have sent the police to get the victim or sought a body attachment (a warrant for witnesses.) He also could have sent the case to Circuit Court prosecutors for a grand jury subpoena to the victim and an indictment. It's not as if they didn't know where the victim lived.

All the prosecutor did instead was go to court and ask meekly for a one-week postponement. He wanted to combine Wagner's case with his co-defendant's case and get the victim to court for both, promising to drop the cases if the victim didn't show up. He acquiesced weakly when Judge Yvonne Holt-Stone, showing as much indifference as the prosecutor, denied the postponement.

And Pat Jessamy stands by it.

Remember the kidnapping and robberies in the Guilford neighborhood, when the suspect was on probation for committing a robbery in the same area? In that prior case prosecutors did have a cooperative victim yet failed to ask for jail time. Jessamy’s explanation? The uncorroborated victim testimony was "minimal" evidence, something her office never bothered to tell the victim.

So Jessamy can’t prove cases with cooperating witnesses without corroboration. And she can’t prove cases with resistant witnesses despite corroboration from a video.

But then, she has dissed surveillance cameras since they first came out, using them to attack the police for wasting money. And no doubt this dropped robbery case is part of the statistics she uses to show that surveillance cameras don't lead to convictions.

Jessamy doesn’t even try. That’s all the public wants. Try.

But Jessamy prefers to accuse those who criticize her of “politicizing” a tragedy, specifically Gregg Bernstein, her challenger this election who called the murder “preventable.” She says he should be “ashamed” of himself.

But if he is right, and the murder really was preventable, who should be ashamed of whom?

Bernstein is right. The April robbery case absolutely should not have been dropped at the preliminary hearing stage. The culture of the city prosecutor’s office, the one that Jessamy has directed for 16 years, led directly to Wagner’s freedom to commit murder.

And so did the culture of a judiciary that refuses to take probation violations seriously. Judge John Howard failed to incarcerate Wagner at a hearing that took place only two days before Wagner was charged with the April robbery. It was Wagner’s second probation violation, this time for stealing a car while on Howard's probation. But Howard put him back on the street. It's truly unbelievable.

And par for the course. Judge Howard isn’t alone. I wrote about the problem in 2008, right about the time that Howard was putting Wagner on probation, in The Empty Threat of Probation.

It’s all shameful. And if the voters don’t act, the shame will keep on coming.

Now We Know

2010-07-11T17:37:00.003-04:00

I was (and still am) on vacation when Gregg Bernstein announced his candidacy for Baltimore State’s Attorney. We should be grateful that such a worthy candidate is willing to take on the rigors of a campaign and the challenges of the city prosecutor’s office. It’s an office that could and should be the shining light of the state but has, particularly since 2002, elevated the image of State’s Attorney Patricia C. Jessamy over her results.

I did catch about half of the Larry Young radio show last Friday, however. It was refreshing to hear Jessamy herself on the show, rather than her ubiquitous spokesperson, Margaret Burns. I tuned in when former Baltimore mayor and state’s attorney Kurt Schmoke was claiming that he travels around now as an academic and sees other prosecutor offices copying Jessamy’s programs.

What programs? Schmoke, who hired Jessamy into the state’s attorney’s office 25 years, is now 22 years removed from that office. He hasn’t a clue.

Then defense attorney Warren Brown called into the show. Upfront about his support of Bernstein, he nevertheless complimented Jessamy for her personal qualities before asking his question: Why has Jessamy never invoked mandatory penalties for repeat violent offenders?

Here was her answer:

1. Brown had a personal motive for asking this question because he blamed her for leaking some information that took him out of a previous state’s attorney’s campaign.
2. Brown had just argued for a lenient sentence for one of his clients but the judge sided with the prosecutors.
3. No one will believe that a defense attorney wants her to put his clients away for life.

Brown persisted: Why has Jessamy never invoked mandatory penalties for repeat violent offenders?

Jessamy finally responded that Brown was “inaccurate.” She provided no details—no explanation of her policy, no numbers, nothing. And she proudly added that she did not invoke mandatory penalties for “non-violent offenses.”

Anybody listening to this—assuming they weren’t thrown off by her accusations and diversions--would have realized that Jessamy has no handle on whether or when her office pursues mandatory penalties for repeat violent offenders. That’s pretty disturbing.

But my ears focused on her admission that she doesn’t pursue mandatory penalties for non-violent offenses. Giving her the benefit of the doubt, I assume she was talking about felony drug offenses, not handgun possession charges, which technically are not “violent” offenses but are connected to violence.

But drug-dealing is likewise connected to violence, something I have argued since I began this blog. My recent study of Jessamy’s violent offender program confirmed the connection. Yet Jessamy admitted to a policy that never seeks mandatory penalties for drug-dealing.

I suppose she’s catering to a constituency that favors drug treatment over incarceration. Rehabilitation over prison. As do I. For addicts. For those selling to support an addiction. For young people who made a mistake.

But not for those shooting and intimidating and murdering to make drug profits for gangs and organized crime. When police catch those persons repeatedly dealing, prosecutors need to consider mandatory penalties.

Jessamy doesn’t, by her own admission, make any distinction between dealers. It’s the first tangible result of Bernstein’s challenge. Now we know.

Unfounded Rape Reports and Unfounded Excuses

2010-06-29T22:19:00.007-04:00

In the face of rumors swirling around that her boss, Patricia Jessamy, may face a serious challenger this year, State’s Attorney spokesperson Margaret T. Burns remains true to form.

With Baltimore leading the nation in “unfounded” rape reports, and various agencies and advocates getting ready to review those reports, Burns disclaims any responsibility or knowledge. Instead, as reported by the Sun, she “points to a longstanding struggle between the Police Department and the prosecutor’s office about who has ‘charging rights’ in sexual abuse cases.”

Who is she kidding? Both agencies have “charging rights.” The police can file a statement of charges. The state’s attorney’s office can take a case to the grand jury and ask for an indictment. In fact, that’s what it did to ruin the investigation of a rape of prostitute by a police officer.

And when an innocent teenager was kept in jail for seven months, Burns claimed that the police charged the case even when her own office obtained the indictment. Burns can’t help herself. The lies just keep on coming.

She claims that “We have no way of knowing about these unfounded cases…Most of the time, these cases are cloaked under the secrecy that is associated with law enforcement investigations.”

“Cloaked” my eye. Burns admits that prosecutors are handling at least one of those unfounded cases, and that nurses at Mercy Medical Center have shared their concerns about how police investigators talk to victims of sexual assault.

In other words, Jessamy had reason to know that there might be a problem and failed to go to Commissioner Fred Bealefeld about it. In trying to indict the police Burns indicted Jessamy instead.

Perhaps all these “unfounded” reports of rape are improper shortcuts to dropping cases that can’t be proved beyond a reasonable doubt. Rape cases are notoriously difficult to prosecute successfully. It nearly always comes down to one person’s word against another.

But it’s even harder than that. Women are expected to behave as if all men are dirty dogs who will aggressively pursue sexual relations with them. If they don’t, if they are naïve or careless or trusting or drunk or otherwise not on guard, then juries will hold it against them. It’s the woman’s responsibility to avoid unwanted sex because they should expect men to do whatever it takes to get it. That’s the courtroom dynamic.

So police may be inclined to un-found reports that stand no chance of success in court, especially when the women involved don’t meet their standard of real “victims.” Prosecutors might turn a blind eye rather than add another case to their docket. Who knows at this point what’s behind the large number of unfounded reports?

But I do know that Burns is full of it when she claims that Jessamy’s office knew nothing and could have done nothing about it. And I also know that victims of sexual assault need an ear, whatever the ultimate chances of success in court.

I remember one of my first rape cases, that of a woman who had gone out for the evening with a friend of hers. They met a man who seemed very nice, and he invited the woman back to his place to watch some TV. As soon as he turned it on, he turned on her and had sexual intercourse with her. She was shocked and confused, felt helpless under his weight, and did nothing. When it was over, she left and called the police.

When I heard her story, I knew I didn’t have a case. She hadn’t said “no” in words or action, a legal requirement of rape. But I also knew she was telling the truth and had been traumatized by the incident. I just kept listening until I could figure out what to say. Finally I asked her what she wanted to happen next.

She took me off the hook, saying she didn't want to pursue the case. She felt humiliated and didn't think anyone would believe her. I told her that I was so very sorry that this had happened to her.

She broke down and cried. “It means everything to me that someone believes me,” she said. And added, “Next time I feel lonely I will just stay home and read my Bible.

What victims of sexual assault need is a listening ear. An open mind. Police who behave respectfully. And a State’s Attorney who quits her shameless posturing and acts on their behalf.

The Rosie-Eyed View Even a Feel-Good Movie Rejects

2010-06-28T23:08:00.007-04:00

I took my son to see Toy Story 3 last Friday, the same day I read an op-ed piece in the Sun that insisted that practically no juvenile offender be incarcerated.

The villain of the movie was Lots-o’-Huggin’, a stuffed bear that formed a gang to bully other toys at a child care center. Traumatized when he was abandoned as beloved toy, he now compensated by controlling other toys.

When his victims escaped from the day care center with Lots-o’ in pursuit, they fell into a perilous situation and saved Lots-o' from death. But when his chance came to redeem himself and return the favor, he sneered and left them to die.

This took me by surprise. Like my son I had hoped for (and expected) the emotionally damaged bear’s transformation through the power of love and forgiveness. While most of his gang did change their behavior, Lots-o’ didn’t. I admired the movie’s creators for disappointing the audience with this honest dose of reality.

And thought of that polemic by a family mediator from Oregon named Matthew House. House makes the dubious claim that a juvenile courts system created in Chicago in1899 “almost completely eliminated recidivism” and that if we just returned juvenile justice to its historical roots (no punishment, only rehabilitation) we could accomplish the same thing now.

So House, from his Oregonian perspective, opposes the building of a new juvenile jail in Baltimore and assails the life term given to Lamont Davis, who at age 17 shot and maimed 5-year-old Raven Wyatt in an attempt to kill someone else.

He claims (wrongly) that Davis will never have a second chance, and argues that treatment “in the community” is always better than incarcerating juveniles. Ironically, Davis was already being supervised “in the community” when he shot little Raven. Had he been in a juvenile jail instead, he wouldn’t have had the chance to wreck both of their lives.

The new juvenile facility is designed to detain dangerous juveniles charged as adults for gun and violent crimes while they wait for trial. Right now they are housed with adult offenders in a dilapidated old detention center, something nobody thinks is a good idea. This new jail will improve our current handling of juveniles, and is not the product of a plan to lock up more juveniles.

House does admit that detention may be necessary “as a last resort” without giving any examples. The Lamont Davis case apparently doesn’t qualify.

But deciding what constitutes “the last resort” is the very core of the issue. House wants to rehabilitate every juvenile in the community. I’d like that, too. (And why not every adult while we’re at it?) But what “community” are we talking about?

The day before House’s piece and Toy Story 3 I was riding the #27 bus when a sharp “Shut up!” caught my attention. There sat a woman in the front seat with a little boy and girl no more than three or four years old each. I hadn’t seen or heard anything the children did to earn such a rebuke, and in fact they were quiet and well-behaved.

But apparently they annoyed this woman, who never looked up from an electronic device she was manipulating with her fingers and listening to through earphones. She stared into it while issuing half a dozen loud Shut Ups to the children.

At one point the boy fell off his seat. As he was climbing back into it she yelled “Get back into the seat!” and hit him audibly in his back (while still staring into her device.) The boy neither flinched nor cried, unsurprised by this treatment. When he asked, “Is this our stop?” she yelled “No! Shut up!” But he was right, and when she finally looked up she jerked the children off the bus in a hurry.

It’s a scene most of us who live in Baltimore have witnessed. And it’s just a tiny glimpse into the lives that many children lead, as their parents stop short in public of criminal child abuse.

I've seen worse. Children shuffled around from place to place, custodian to custodian, and school to school, many with harsh, abusive parents who don’t like their kids or know how to raise them but keep having children anyway. Addicted parents, mentally ill parents, parents with little or no meaningful employment throughout their entire lives.

When I look into the faces of kids like those on the bus and at the shelter I work for, I see brightness and promise and hope. A decade later, that promise may be flickering or extinct.

Like the reformed gang members in Toy Story 3, many kids can navigate their way through this upbringing with their own resiliency or with help from mentors, government institutions and second chances. But some, like Lots-o’-Huggin’ Bear, won’t. The trauma, the lack of love, the violent drug culture--this just can’t be ameliorated for every violent youth to the point where he or she no longer poses a life-threatening danger to others. For some, the best hope lies with aging their way out of the violent expression of their anti-social feelings.

Do I think that jails and prisons make anybody better people? No. They just house violent offenders separately from the rest of us. I hope that inmates are offered schooling and training and therapy and treatment that gives them a chance to succeed when they come out, assuming they can get jobs (for which much more assistance needs to be given.) But in the meantime, they can’t inflict damage on others.

The real issue is not whether we need to lock any juveniles up. It is who to lock up, in what kind of facility, for what behavior and for how long, while doing our best with alternative solutions and prevention programs for others. This isn't 1899 Chicago. We've got juveniles who think nothing of gunning down others over "disrespect."

Even in a feel-good movie, Lots-o’-Huggin’ Bear could not transcend his trauma. It’s the sad, tragic truth of real life as well.

A Failed Program, A Failed Relationship, and the Possibility of Change

2010-06-20T17:01:00.008-04:00

I began my blog two years ago with Baltimore’s Failed War Room. The War Room was supposed to focus upon violent offenders to keep them off the streets. From my perspective as the War Room supervisor, it failed to make a meaningful difference, not because it couldn’t, but because no one was trying. War Room offenders returned to the street, free to commit more crimes.

All I could do, however, was present anecdotes. So I decided to study the data myself, the same data that Baltimore State’s Attorney Patricia Jessamy would not share with anyone. The results are contained in A Study of War Room Offenders, which I am publishing today.

The general public might find the terminology and data boring. But the Executive Summary says this: that the State's Attorney's Office achieved a conviction rate of only 35% for War Room offenders. And that judges and parole commissioners revoked the probation and parole of War Room offenders barely more than a third of the time despite new convictions.

Jessamy may assail these and other findings as coming from a former “disgruntled” employee. But she has the data herself.

And I am not publishing the data out of some personal problem with Jessamy. To this day I think Jessamy is a fundamentally decent person. But she took no interest in the War Room, which had opened my eyes to the deficiencies of the criminal justice system. I have a philosophical difference with her about what the State’s Attorney’s Office can be doing to improve the criminal justice system. The War Room data reveals what it's not doing.

I have a second major difference with Jessamy, which I have also written about. She thinks she can be an effective advocate while undermining the police department. On the contrary, her decision to use the police as a tool to further her political standing has undermined public safety. New ideas, new strategies, and an honest critique of current efforts arrive stillborn when one partner wants to control or blame the other.

Even the recent, alleged murder of a citizen by an off-duty police officer reflects the tension that she alone now promotes. From the public’s point of view, it was hard to understand why the officer wasn’t arrested on the spot for what appeared to be the execution of an unarmed man. He wasn’t because some witnesses at the scene claimed that he had identified himself as a police officer and defended himself. But when police investigators determined this claim was false, they were ready to arrest two days later.

But prosecutors first retraced all the steps themselves, taking more than twice as long as the police and leaving what appears to be a dangerous person free on the street. A healthy, police-prosecutor relationship wouldn’t have exposed the public to that risk, or created the perception of a double standard. This was one of the more subtle consequences of the poor relationship.

I have felt strongly enough about both of these differences with Jessamy to publicly challenge her policies. The city prosecutor’s office can and should be a leader in changing the criminal justice culture, but isn’t moving in that direction.

Speaking of change, the Baltimore Sun reported Friday the interesting speculation that a credible challenger to Jessamy may soon emerge. Unless and until that happens, I have no comment to make. But I couldn’t help but be struck by Jessamy's statement that she confronted Governor Martin O’Malley about recruiting someone to challenge to her.

First of all, it wouldn’t be the first time. He has tried to find opponents before.

Secondly, Jessamy owes O’Malley. Big time.

It was Mayor O’Malley who rescued her floundering 2002 re-election chances by publicly demanding that she get off her lazy "ass” and prosecute a case that his police department had bungled. The insult raised a racist image that backfired resoundingly in the African American community. It also, by the way, was false. Jessamy may have her management and leadership issues, but she is in no way lazy. Jessamy was re-elected in 2002 and has raised her profile and influence ever since.

Secondly, when Jessamy was privately talking in 2006 about serving another two years and then retiring, O’Malley (and his enablers on the Board of Estimates) suddenly raised her salary about $80,000. He never explained his motive, but it seemed obvious that he wanted to entice someone to run against her. Problem was, she had just been re-elected to a new four year term. Instead of retiring into the sunset, she announced to her staff that she planned to stay until she earned her 30-year retirement from the city and what will be a fat, six-figure pension based in large part on her $229,500 salary.

So it seems to me that anytime O’Malley wants to undermine Jessamy she should be laughing. All the way to the bank.

Judges, Politics and Resisting Arrest

2010-06-07T00:40:00.005-04:00

What an editorial by the Baltimore Sun last week, which actually called out a judge by name. I’d gotten used to the old editors who would have been worried about interfering with judicial “independence.” No doubt the Sun will be accused--wrongly-- of doing exactly that.

Kelli Oliver and Talaya Kirkland verbally abused a police officer who stopped their car for a broken tail light and reportedly made a scene that caused traffic to stop. When the officer tried to arrest them for disorderly conduct, Kelli Oliver kicked and bit the officer.

For this they were found not guilty by Baltimore County Judge Dorothy Wilson, who found their behavior legally justifiable. The Sun did a great job of explaining the law and why it believed that Wilson fell down on the job. And it clearly felt the ruling smelled of politics, since the two defendants were the daughter and granddaughter of Baltimore County Councilman Kenneth Oliver.

I didn’t see the trial myself. But I am quite familiar with political verdicts. Had anyone asked me in advance what I thought the verdict would be, I would have said not guilty, regardless of the judge, and based solely upon the nature of the charges and the defendants’ family connection. It happens all the time.

Once as a young prosecutor a police sergeant confronted me about why my team had dropped a case. I learned that my co-worker had done it in response to a call from the front office. The defendant, the husband of the secretary to the Baltimore County executive, had been arrested for soliciting a prostitute and “they” didn’t want his wife to find out.

I was so mad I called my boss and told her that if the front office wanted to drop a case for political reasons they could come down and do it themselves. Youthful, righteous, naive indignation. A few years later when I told this story to others in front of this co-worker he chuckled, informing me that he had dropped a second case after a call from the front office.

“You did?” I asked incredulously.

“I’m a loyal foot soldier,” he replied.

Not long afterward the co-worker came into my office and stared out of the window, feeling rather badly about a plea he had just taken. A man of Greek descent had sexually molested a child, and some politically influential members of the Greek community had called the state’s attorney, who in turn asked his loyal foot soldier whether “anything could be done” with the case. The loyal prosecutor used his discretion to plead it out to probation.

But despite his momentary remorse, the foot soldier’s political instincts had its rewards. He’s now a judge.

Then there was the prosecutor assigned to a court created to plea bargain cases to keep them from going from the District to the Circuit Court. She called me to say that she couldn’t stomach the plea agreements that the judge was offering. When I sympathetically told her that all she could do was make the state’s recommendation clear on the record, I heard silence on the other end of the phone.

“You are putting the state’s position on the record, aren’t you?” I said.

“You know what I want to be,” she replied.

Yes, I did. She, too, is now a judge.

Despite Attorney General Doug Gansler’s campaign to end the election of Circuit Court judges in Maryland, it won’t kick politics out of the judiciary. District Court judges like my two former colleagues aren’t elected, but they “play the game” which includes currying favor with politicians and prominent lawyers who recommend them for their judgeships. This results in too many judges who lack the guts to make independent decisions that negatively impact influential people. They continue to be politically sensitive.

Judges are human beings like the rest of us. They need the same scrutiny anyone else in public service should get. I applaud the Sun for taking a look at Judge Wilson’s decision, and hope they will keep it up.

A New View of Resisting Arrest?

It would be hard to imagine Judge Wilson allowing police officers to bite and kick citizens in the course of making a legal arrest. We’d call that police brutality. But she said it was okay for citizens to do it when police officers did not have grounds for arrest. Not only did she invite others to question her motives with this decision, she opened a can of legal and practical concerns.

An “illegal” arrest is in the eye of the beholder. A police officer may be making an arrest in good faith. A citizen may legitimately think the arrest is illegal. No one knows until they get to court, where different judges may rule differently. It's really just a crapshoot as to whether its justifiable. Should we permit violence under these circumstances?

There’s also a disparity within the law. A citizen has a common law (historical) right to reasonably resist an illegal arrest. But he does not have a similar right to resist an illegal stop. (A stop is a temporary detention by police.) Why not? That’s just the way the law developed over the years, because a “stop” was a concept invented by the Supreme Court and not rooted in common law. We can't expect the ordinary citizen to know the difference, and there's no valid rationale for the difference to exist.

And practically speaking, what is “reasonable” for a citizen to do in resisting an illegal arrest? Citizens can’t use deadly force. But Judge Wilson says they can bite and kick the police. Suppose the kick is to the groin, or the jaw, or the bite takes off part of an ear, a la Mike Tyson. Would that be okay, and would it matter if the injury was inflicted intentionally or unintentionally (as if we would ever know for sure)? That's a heck of a decision to leave to judges, and doesn't say much about how our country has evolved. We are not still fighting the King's men.

Then there's the problem of escalating force, from police officers making an arrest in good faith, to the rogue cop itching for an excuse for violence, to the citizen matching blow for blow. And what is a bystander to do in seeing a citizen grappling with a police officer? Does he have to know if the arrest is legal or illegal to lend aid?

Although I’m not a fan of reacting to every issue with new laws, legislators may want to take a look at this situation. It may be safer for all involved not to permit a citizen to resist arrest, whether the arrest is legal or illegal, and confine the remedy for an illegal arrest to a civil lawsuit. The lawsuit's coming anyway.

The Death of Elbert Davis

2010-05-17T22:58:00.011-04:00

As a young woman playing slow-pitch softball I learned quickly that I better make the plays in the field when they came my way. It was too easy for hitters to smack the ball to give them extra chances.

Baltimore’s criminal justice system is much the same way. Defendants get so many chances to “beat the charges” that when prosecutors get a chance to make their case against dangerous criminals they better do so.

The history of Umar Burley illuminates how criminals cycle through the system and why I’ve been critical of State’s Attorney Patricia Jessamy for failing to train, lead and focus her prosecutors properly.

Burley is the guy charged speeding away from police and smashing into the car driven by 86-year-old Elbert Davis April 28, killing him and injuring another elderly passenger. Burley had at least 20 prior arrests, listed in detail at the end of this article.

Prosecutors dropped eight cases at the lowest level, the District Court. Since most of these cases had victims, presumably the victims didn’t come to court or didn’t cooperate.

In another five misdemeanor cases Burley asked for a jury trial, which is how defendants manipulate the system when prosecutors are ready to proceed. Burley got what he wanted after the cases were sent to the Circuit Court for jury trials: three dismissals and one probation.

Let me pause with that probation case. Burley was charged with speeding down Liberty Heights Avenue, a major thoroughfare in Baltimore, and then down Fulton Avenue, a residential street. He blew through red lights attempting to escape police officers who had tried to pull him over. When police finally caught him, they found him with bags of heroin and cocaine. The heroin was 44% pure.

At the time of this arrest Burley had already been convicted of drug dealing, for which he got three years, and for drug possession, getting probation. So what did he get this time? More probation. And the prosecutor dropped the heroin and fleeing-from-police charges to boot.

Not only do high speed flights from police endanger public safety, but my experience in the War Room identifying violent offenders taught that these incidents appeared frequently in the background of offenders who were or became violent.

But the prosecutor in Burley’s case gave the charge away in a plea bargain. And a month later Burley was charged again with fleeing the police, this time in Baltimore County. He got probation again. Prosecutors didn’t take the crime seriously, and neither did Burley.

Police then caught Burley red-handed with a gun in his car. But Burley walked when the judge threw out the gun because of an illegal search.

I watched the video of this case. Judge John Prevas ruled properly. But the young, inexperienced prosecutor failed to properly prepare the police officer to testify about an alternative argument that the judge acknowledged would have saved the evidence. The prosecutor was part of a specialized gun unit that was supposed to focus on gun offenders. It wasn’t up to the task.

After the failed handgun case, police arrested Burley for possession with the intent to distribute drugs. Burley got 5 years, with all but one year suspended. A dozen years earlier he had received three years for the same crime. The penalty got lighter for a repeat offense.

A month after his release on his one year sentence, police arrested Burley for possessing a gun that they found between him and a co-defendant in a car. He also had failed to report to his probation agent and was charged with violating probation. By the time the probation violation came up for a hearing, the U.S. Attorney had intervened and charged the gun case federally, causing Jessamy’s office to drop its charges.

At the hearing Burley’s defense attorney told Judge John Glynn that the gun charges had been dismissed. And the prosecutor agreed. He never mentioned that the gun charges were now pending in federal court instead of state court.

Who was the prosecutor? Incredibly, it was Doug Ludwig, head of the specialized gun unit. Ludwig had twice authorized that Burley be charged with handgun violations, and he had coordinated the transfer of Burley’s case to federal prosecutors. He now had no idea who Burley was and no clue about his record. It was just another day in court for Ludwig, handling probation cases he cared nothing about.

So in September 2008 Judge Glynn imposed only 18 months out of the four years that he had originally suspended and terminated probation. Burley served the sentence while already in jail waiting for his gun case to resolve. The U.S. Attorney then dropped Burley’s gun case in March 2009 after his co-defendant pled guilty. Federal prosecutors take few chances with their conviction rate, and in my opinion didn’t want to risk an acquittal when the co-defendant could take the fall for the gun. But Jessamy’s prosecutors could have taken the evidence into the state probation heaing, where, because it is a civil proceeding, the burden of proof is lower.

Not only that, Burley had heroin on his person when arrested on the gun charge, which Ludwig could have proved at a probation hearing. And if nothing else, knowing that Burley was a danger, Ludwig could have argued for the full four-year sentence to be imposed no matter what the reason for the probation violation—Burley not reporting to his agent, Burley with heroin, or Burley with a gun.

But Ludwig said nothing. He made no sentencing recommendation whatsoever. Jessamy’s chief gun prosecutor failed to track and focus upon an offender he himself had charged twice with handgun crimes. He didn’t know he had the man’s case on his probation docket. Burley was just another defendant. Next.

And so Burley was free on April 28, 2010 to speed once again through the streets of Baltimore, this time killing an elderly man.

I suppose that even had Judge Glynn imposed the full four years for violating probation there’s no guarantee Burley would have still been locked up this past April. The Parole Commission would have considered Burley “non-violent” and probably let him loose as soon as possible.

And that, citizens of Baltimore, is your criminal justice system in action.

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

Burley’s Prior Cases

The cases listed below are taken primarily from electronic court records. I don’t claim that it is complete—it probably isn’t. The electronic records that the judiciary make available to the public are terribly flawed. They also omit many serious traffic crimes.

All cases were in Baltimore city except where noted.

1989: Possession of illegal drugs. Result: Probation.

1994: (1)Auto theft. Result: Request for jury trial. Final outcome unknown.
(2)Assault with the intent to murder. Result: charges indefinitely postponed.

1995: Possession of illegal drugs with the intent to distribute them. Result: 3 years in prison, with another 3 years suspended.

1998: (1)Disorderly conduct. Result: Dismissed.
(2)Assault and malicious destruction or property. Result: Dismissed.

1999: Assault. Result: indefinitely postponed.

2000: (1)Malicious destruction of property. Result: dismissed.
(2)Possession of illegal drugs with the intent to distribute. Result: Dismissed.
(3)Possession of illegal drugs. Result: request for jury trial, indefinitely postponed.
(4)Possession of illegal drugs. Result: request for jury trial, indefinitely postponed.

2001: Possession of illegal drugs. Result: indefinitely postponed.

2002: Possession of illegal drugs with the intent to distribute; assault; theft. Result: Dismissed. (Baltimore County.)

2004: (1)Assault. Result: Dismissed.
(2)Fleeing and eluding police, possession of heroin, possession of cocaine. Result: Request for jury trial. Guilty plea to possession of cocaine for two years suspended and one year probation.

2004: Fleeing and eluding police. Result: probation. (Baltimore County.) In 2007 Burley got six months for violating this probation which he served while in jail on a felony drug charge.

2005: Handgun violation. Result: evidence suppressed at trial, case dismissed.

2006: Possession of illegal drugs. Result: jury trial request, dismissed in a plea bargain with the next case listed.

January 16, 2007: Possession of illegal drugs with the intent to distribute. Result: 5 years in prison but 4 of those years suspended. Burley was violated on September 10, 2008 for failing to report to his probation agent and got 18 months out of the 4 years suspended. He served that time waiting for charges in the following case to resolve.

November 19, 2007: Handgun violation and possession of heroin. Result: federal prosecutors charged and then dropped the handgun case after a co-defendant pled guilty. No one pursued the heroin charge.

Baltimore’s Shadow State’s Attorney

2010-04-21T21:46:00.003-04:00

Three things I noticed about last week's conviction of Lamont Davis for shooting 5-year-old Raven Wyatt in a botched attempt to kill a fellow teenager.

First, the work of Diana Smith, the prosecutor who had to battle the alibi provided by the Department of Juvenile Services (DJS) that Davis was home at the time of the shooting under their supervision. Smith is one of a number of dedicated, competent prosecutors whose work is overshadowed by the political nonsense of her superiors at the Baltimore state’s attorney’s office.

Which leads to point two. Police solved the case using evidence gleaned from a stationary outdoor surveillance camera, known as a pole camera, which captured the incident on video. It’s the second time in a month that a pole camera led to a conviction in a shooting case.

Yet as the Sun’s Peter Hermann pointed out, city state’s attorney Pat Jessamy actually used the first conviction to decry pole cameras as a waste of money. As usual, Jessamy herself did not speak on the issue. The press release and subsequent commentary came from Margaret Burns, Jessamy’s press aide.

When pole cameras first went up in 2005 under Mayor Martin O’Malley, Burns ordered prosecutors to identify and track cases in which police arrest reports mentioned cameras. The order didn’t come from trial supervisors, from Jessamy, or from anyone else who should have been interested in maximizing the cameras’ potential. It came from the media spokesperson, then at the height of her personal and political feud with O’Malley.

Burns was busy attacking O’Malley and the police on all fronts, from arrest numbers, to police officer appearances in court, to crime lab issues, to a new citation system designed to reduce the number of arrests Burns was complaining about. She undermined the police at every turn.

From its inception Burns resolved to label the pole camera program a failure. She even sent an e-mail to prosecutors seeking examples of blurry pole camera images for distribution to the media, something Steve Fogleman, a candidate for state’s attorney, exposed in 2006.

But O’Malley’s been gone from Baltimore for three years, and Jessamy’ prosecutors just secured two shooting convictions in one month with the help of pole cameras. So why the continued pokes at the program? Anything that helps Jessamy convict criminals ought to be welcomed.

Perhaps she’s thinking of running for mayor, and is playing politics with public safety to get there. If there’s one thing Jessamy’s behavior over the past decade has demonstrated, it’s Pat's Political Career before the Public Interest.

But I also worked long enough with Margaret Burns to know that she genuinely enjoys the kick-the-police game to which she is now addicted. It’s possible that her curious attacks on pole cameras simply reflect a personal pathology that derives pleasure from conflict.

And finally my third observation. When the Davis verdict came down we didn’t see Jessamy on camera before the media, Jessamy photographed by the Sun, Jessamy quoted, or Jessamy dispensing congratulations to her staff. We saw Burns. Here we had one of the most high-profile convictions by Jessamy’s office in recent memory, and Jessamy’s nowhere in sight.

If and when Jessamy declares her candidacy for mayor, or even if Jessamy confines her political ambition to another run for state’s attorney, her supporters and contributors need to recognize what their eyes tell them: that the candidate behind the candidate—the Manchurian Candidate, for old movie buffs—is Burns.

It’s Burns who forms the strategy, who relentlessly attacks perceived enemies, who puts her candidate forth even as she pulls all the strings, not just about media matters but about prosecution strategies. But unlike Angela Lansbury, who brilliantly played the power behind the candidate in the 1962 movie, Burns can’t quite keep her ego in check.

A good puppeteer, even a good media relations director, would have put Jessamy out in front. And any state’s attorney worth her salt would have spoken to the people herself after such a significant verdict.

Burns grabbed the spotlight instead. The shadow state’s attorney stepped forward.

Voters take heed. A vote for Jessamy, whatever office she runs for, is a vote for Burns.

=====================================================================

The Value of Technology

The Baltimore Sun editors took two technologies to task after the Davis verdict.

The GPS monitoring system used by DJS to “supervise” juveniles in the community was proved a joke beyond a reasonable doubt. And despite the nine months DJS has had to fix their home monitoring program since the shooting, it remains inept. A co-worker of mine had her teenage son hooked up to an ankle bracelet for DJS home monitoring this week. He leaves the house when he wants, and nothing happens.

But when it comes to pole cameras the editors appear to suffer from CSI syndrome, lusting for cameras so fantastic they can read license plates from outer space. They neglected, however, to mention the cost. $20 million? $100 million? Are we going to hang technology like that on a pole in East Baltimore?

And the editors appear to adopt the premise that unless camera videotapes can prove the identity of every criminal beyond a reasonable doubt they are not worth the investment. Sounds like they’ve been talking to Burns, but certainly not to police or prosecutors.

Even when video images cannot identify a criminal in a courtroom they can lead to his arrest. And they can demonstrate the manner in which a crime was committed, eliminating the alternative versions that defense lawyers push on juries.

If the cameras just proved how a crime occurred and left only the issue of identification, they still make for valuable tools. And if the clarity of their images can be improved at a reasonable cost, all the better.

But as they are now? They helped bring Raven Wyatt’s shooter to justice by giving police detectives the clues they needed to find him.

Bravo for pole cameras.

The Greatest Part-time Job in the World, Part II

2010-04-14T14:03:00.005-04:00

In Part I I described the District Court of Maryland as a part-time job for its judges.

That’s no reflection on the job most of them actually do while on the bench. With exceptions, including two I named, most of the judges on the District Court handle their work responsibly and conscientiously.

Some even work harder than the job requires. Judge Charlotte Cooksey single-handedly created Mental Health Court, a specialized court to handle the mentally ill who cycle through the criminal justice system in Baltimore. Judge Jamey Hueston made similar efforts to bring Drug Treatment Court to the Baltimore District Court two decades ago.

But the basic demands on a District Court judge in criminal court does not, for the most part, require a full week of work. It’s a court of little consequence, designed for maximum manipulation by defendants charged with misdemeanors. As a result, the Circuit Court, which handles jury trials and felony cases, is manipulated as well.

I once heard Judge Ben C. Clyburn, now the chief judge of the District Court, once describe the District Court as a “postponement and probation court that lacks finality.” He was speaking as a member of a committee created to improve the status quo, and I appreciated both his honesty and his efforts to change things. Too many colleagues of his colleagues are quite content with their job.

Go to a district criminal courtroom in Baltimore one morning and it would appear very busy, a kind of controlled chaos. But underneath the surface, there’s little of substance.

First come the cases dropped for lack of evidence or witnesses. Then, as Judge Clyburn pointed out, defendants get either a postponement of their case or probation. Postponements are wonderful for defendants because witnesses will eventually stop coming to court. And when defendants run out of postponements in the District Court they can, in most cases, demand a jury trial in the Circuit Court, which brings more postponements.

If a prosecutor offers probation in the District Court many defendants will take it. But if the prosecutor doesn’t recommend it, or the judge won’t agree, it’s on to the Circuit Court.

Defendants may opt for a court trial with the hope of an acquittal. Or they may not have the right to a jury trial if it’s a very minor case. But if a District Court judge convicts them after a trial, no problem. They have an automatic right to start over again.

Appeals from convictions in the Circuit Court are based on legal errors or some gross unfairness. But appeals from the District Court are “de novo”, which stands for do-over. An appeal wipes out the first trial and sends it to the Circuit Court, no questions asked. It doesn’t matter how fair the trial or how clear the evidence. The District Court trial merely served as a dress rehearsal.

Victims and witnesses must go through more postponements at the Circuit Court. Assuming they stick around long enough, they have to testify all over again. For them the do-over appeal is a nonsensical, burdensome system.

Even defendants who plead guilty in the District Court can start over at the Circuit Court. They can offer to plead guilty in return for the prosecutor dropping some charges. But on appeal from the guilty plea the dropped charges stay dropped. It’s a nifty little way to manipulate the system.

Defendants can even appeal when they violate a District Court judge’s probation and get a whole new hearing in front of a Circuit Court judge who knows nothing about the original case (and could often care less.)

The bottom line? The Circuit Court matters. The District Court doesn’t.

And a corollary to that: The rights of defendants count. The rights of victims and witnesses don’t.

The District Court is designed in every way possible to inconvenience victims and witnesses and give defendants multiple chances to “beat the charges.” Yet because the District Court is supposed to handle the minor cases in the system, its judges are forced to play the game.

Deny a postponement? Refuse to promise probation? The defendant will just demand a jury trial and burden the Circuit Court with a misdemeanor case. And if by chance a District Court judge actually conducts a trial and convicts someone, who cares? The defendant can just appeal and start over again. There’s little incentive to conduct a proper trial.

None of this benefits the Circuit Court or the criminal justice system. When misdemeanor jury trials come to the Circuit Court in numbers impossible to provide courtrooms for, Circuit Court judges play Let’s Make a Deal.

District Court plea offers and sentences get chopped down to nothing. Defendants on probation for something serious, like a gun or violent crime, can often get Baltimore Circuit Court judges to work out “package deals” that won’t violate their probation if convicted on a new offense.

So misdemeanor cases don’t count in the District because they are not allowed to count, while the Circuit Court is too busy to handle them. The only ones in the criminal justice system who benefit are defendants.

So the District docket dance goes on. The most popular judges are not those who take their time to do careful work, because careful work is neither necessary nor valued. It’s those who finish fastest so everyone can get out of there.

And so we find judges on the golf course, in the stores, at their children’s schools, or employed in other occupations during normal working hours. The judges aren’t needed to actually judge cases, only to preside over a clearinghouse that winnows out cases through attrition of witnesses and manipulation of the system.

The General Assembly created this system. And while it once showed some willingness to change it, it ultimately failed to so.

More on that, and how to fix the problem, in Part III.

Locking Up a Cop

2010-03-22T00:07:00.003-04:00

The latest brouhaha between city prosecutor Pat Jessamy and the police arises from the arrest of a city police officer who failed to appear on time to testify in a gun case.

Judge Gale Rasin issued a “body attachment” to lock the officer up overnight at Central Booking. Not only was the situation potentially dangerous for the officer, it was downright humiliating.

City prosecutors said they had to request the body attachment or lose their case. Police say prosecutors didn’t need to have the officer locked up.

Judging from the subsequent accusations and hard feelings swirling around the internet, law enforcement cooperation has taken another hit. But this time they are all in it together, because everybody’s right and everybody’s wrong.

In late January 2009 city police officers Victoria Reynolds and Jason Shreves got a call at night for multiple young men, possibly armed, wearing ski masks and getting out of a vehicle. Officer Shreves was first on the scene and approached a parked minivan with two men inside. One of the men appeared to place something under the driver’s seat in front of him, and when Shreves shined his flashlight through the window he saw the butt of a gun.

Officer Reynolds arrived when Shreves was looking into the window and assisted him with pulling the suspects out of the car and searching it. They recovered the gun, ski masks, crow bars, and similar “criminal tools.”

Fast forward a year to last Monday afternoon. After four postponements, the case was finally sent to Judge Rasin’s court for trial. Rasin said that the trial had to be finished by Tuesday because she was not available the rest of the week. (According to the defense attorney on the video I watched, the lack of court availability created all the prior postponements.)

The defense first made a motion to keep the gun out of evidence, arguing that the police lacked probable cause to seize it. This required a hearing, but no police officers were present to testify. They had been placed “on call.”

Putting officers on call makes practical and economic sense for the police department. With so many postponements in the Circuit Court, letting them attend to other duties until really needed makes sense. But officers have an absolute duty to be available when the call comes.

The prosecutor told the judge that he could not get hold of Officer Reynolds, who was at the firearms range. He had called the range and was told she was dismissed for the day, and her personal cell phone was out of order. Judge Rasin gave him half an hour to bring her in, get a body attachment, or dismiss the case. After another hour or so, Judge Rasin issued the body attachment.

Prosecutors were right to say they would have lost the case without the body attachment. But they were wrong to tell the judge and the public that it was Officer Reynolds they needed. They needed Shreves. He had made all of the observations that led to seizing the gun. The judge ruled in the state’s favor solely on the basis of the testimony Shreves eventually gave Tuesday morning.

In fact, when the case went to trial before a jury, the prosecutor only called Shreves.

The prosecutor—a hard-working and dedicated young man--made an error in legal judgment. The officer he considered his “primary” witness—the one who wrote the police report—wasn’t the officer he needed on the defense motion.

But regardless of who the proper witness was, Reynolds was still supposed to be available. And the prosecutor did everything he could to forestall the arrest of Reynolds, including consulting with his supervisor, calling police supervisors, asking the judge to continue the case to the next day, and asking her to consider a police commander’s offer to charge Reynolds administratively and guarantee her appearance in court. He argued that it was rare for him to have to hunt down officers, and finally informed her that both of the officers were on their way. All to no avail.

Judge Rasin was the one determined to lock up Reynolds. At first it was about needing to finish the case by Tuesday. But that gave way almost immediately to extracting “a real consequence” from the police department.

Rasin learned that she was going to have time to hold the hearing Tuesday morning before she could get a jury panel. No practical reason existed any longer to lock up the officer, but Rasin wanted her pound of flesh.

When the prosecutor told her around 3 p.m. Monday that “Plan B”—Officer Shreves—was on his way to court, Rasin said she was “not sitting around waiting for another police officer.” When he subsequently told her that Reynolds had been reached and was also on her way to court, Rasin told him to hurry up and get the body attachment to her to sign, because otherwise it “would be a little awkward.”

In other words, even if Shreves or Reynolds arrived in time to testify on Monday, she wanted Reynolds arrested. She warned the sheriff and prosecutor not to extend any professional courtesy by warning Reynolds and giving her a chance to avoid the body attachment.

The next day, when an exhausted and emotional Reynolds was brought to court from jail, Rasin made her endure a long, condescending lecture about why she issued the body attachment “at the state’s attorney’s request.”

I don’t know whether Rasin has a bias against law enforcement agencies, but it sure appeared that way. She made a couple of mocking comments aimed at Police Commissioner Fred Bealefeld, and took a shot at prosecutors by claiming that they had “no apparent concern” for civilian witnesses who were locked up for “months.”

But perhaps her eagerness to lock up Reynolds is explained by a story she told about another handgun case she had where the officer was also at the firearms range. When told it was time to testify the officer said he was in a shooting competition, had just advanced to the next level, and wasn’t coming in.

She didn’t say what happened next, but I know I would have locked his rear end up if I had the chance. I recall my own murder case when my first scheduled witness, a police officer, failed to answer his phone when I called. He then had the gall to show up in the middle of the trial asking me to document his overtime.

Attitudes like these turn off judges and prosecutors, undermine the police mission, and need to be stamped out by the police department. Circling the wagons around officers who blow off court invites body attachments.

On the other hand, communication sometimes fails. And things happen. Just like when this case was postponed multiple times, leaving the defendant in jail for 14 months because the judiciary couldn’t get the case tried.

The Fraternal Order of Police, angry that the prosecutor didn’t choose to drop the case (and let the defendant go free), needs to cool its jets or risk losing all credibility.

But I understand the police suspicion of a state’s attorney (Pat Jessamy) who will sell them out whenever it suits her. I have touched on this subject more than once, such as in The Sad Truth Behind the Statistics, The Cost of Failed Teamwork, The Pot Calling Out the Kettle, and The Lie That Won’t Die.

More fundamentally, I understand their fierce protectiveness of their own. Because when it comes down to it, it isn’t me or the prosecutor or Judge Rasin who must walk up to a car at night with suspicious men inside. It’s Jason Shreves and Victoria Reynolds, who could have been blown away on the spot. (And after I drafted this, two officers did get shot.)

So I get their outrage over locking up Reynolds like a criminal. And I think Judge Rasin picked the wrong set of circumstances to make her point.

But she has also had enough experience with officers who don’t show up to have a point to make, which the police need to acknowledge and address.

As for Jessamy, if she isn’t going to work with the police, she should at least refrain from throwing stones while living in her own glass house.

Pat Jessamy's Priorities

2010-03-16T11:38:00.002-04:00

Every legislative session Baltimore State’s Attorney Patricia Jessamy descends upon Annapolis amid a flurry of press releases that proclaim her ardent desire for better gun and gang laws to further the fight against violent crime.

But anyone who wants to know her real agenda need look no further than last Thursday’s state Senate hearing on a bill to increase penalties for convicted felons who carry guns.

Jessamy has complained about the current law for years. Now she had a chance to throw her weight behind a proposed law that has garnered support not only from police and prosecutors but from some leading defense attorneys as well.

Jessamy arrived with her usual entourage. WBAL-TV put her on the news that night and posted a story about her on its website. But it neglected to report that she never testified.

Steve Levin, a defense attorney and former federal prosecutor, wrote an eyewitness account of what happened at the Senate hearing.

After Baltimore mayor Stephanie Rawlings-Blake testified for the bill, Jessamy’s spokesperson and alter ego, Margaret Burns, was heard complaining that Rawlings-Blake hadn’t sufficiently praised Jessamy for her efforts against gun crime.

So when the committee took a break, Jessamy and her entourage left. This despite another WBAL report last month that Jessamy planned to "be in Annapolis all session long...advocating for stronger penalties for felons in possession of handguns."

Every other witness waited and testified, but not Jessamy. She packed up and went home.

Vintage Jessamy. When it comes right down to it, her real priorities are credit and control.

Jessamy's duty to the citizens who elected her was to testify on that bill. If she felt insulted by the mayor she could have privately complained later. Instead, she bailed on her constituents.

What’s especially ironic is that Jessamy deserves so little of the credit she tries to grab. For example, she had the chance to be an innovative leader against violent crime with the War Room years ago but buried the program instead. When the city gave her a team of prosecutors to focus on dangerous offenders who violate probation she had no idea what to do until federal prosecutors created the blueprint.

It's mainly through the leadership of U.S. Attorney Rod Rosenstein that Baltimore has effectively focused on violent offenders in recent years. The State Department of Public Safety added its own program, the Violence Prevention Initiative, and the Mayor’s office created Gunstat.

In other words, all of the creative vision and leadership have come from outside Jessamy's office. Jessamy initiated nothing, other than press releases. She just follows along, demanding credit as she goes.

And the others give it to her, too, especially Rosenstein and Sheryl Goldstein, who heads the Mayor's office on criminal justice. They try as hard as they can to forge a harmonious relationship. It’s never enough.

What's particularly disheartening is Jessamy's return to the "disrespect" card that she played so often and so well after Mayor Martin O'Malley, a white male, openly insulted her work ethic and judgment nearly a decade ago. She retaliated by attacking and undermining O'Malley's police department and came out the "winner" by staying in office. The losers, of course, were the citizens of Baltimore.

But now Jessamy plays the card against an African-American female like herself, someone who just took office as mayor in challenging times and who testified in support of the same bill Jessamy supports.

It isn't about disrespect after all. Or what's in the interest of public safety. It's about Pat Jessamy's desire to be top dog.

I see stormy clouds ahead. Watch for ecalating leaks and negative stories about the police department as a means of controlling the mayor. Jessamy and her hatchet woman, Burns, may be gearing up for another public feud based on nothing more than Jessamy's insatiable ego.

Related prior articles:

Baltimore's Failed War Room
Baltimore's Violent Crime: The Good News
The Cost of Failed Teamwork
The Pot Calling out the Kettle

Getting it Wrong, Getting it Right

2010-03-09T21:29:00.012-05:00

What a wretched job the Baltimore Sun did in reporting on a Maryland Senate committee’s vote to approve the appointment of Thomas Miller III as Anne Arundel County District Court judge. Miller is the son of Senate President Thomas “Mike” Miller.

That in itself is newsworthy, that the Democratic governor appointed the son of the Democratic Senate President as a judge. But the Sun utterly missed reminding the public what made this nomination controversial if not odorous.

The story did mention that three members of the county judicial nominating commission resigned when Miller’s name was forwarded to Governor Martin O’Malley for consideration in 2008.

But it failed to report that the commission had first found young Miller not qualified. It reversed itself when O’Malley ordered them to forward more names from the same list it had already considered, following by some heavy politicking from “political types” on behalf of Miller. This is what prompted the resignations, something I found both unusual and brave at the time.

With the Sun reporting every move by Attorney General Douglas Gansler to rid the state of judicial elections, it needs to report the other side of the coin, the smarminess of leaving the choices to politicians.

On the other hand, how refreshing it was to see the Sun’s Michael Dresser dress down House Judiciary Chairman Joe Vallario for his rudeness, distortion of facts, and inability to separate his profession as a defense attorney from the public interest.

It’s great that Vallario takes a hard look at bills promoted by law enforcement types and politicians. Many of them aren’t really necessary or are flawed because they were hastily drafted in response to some high profile tragedy.

But Vallario consistently stands in the way of beneficial legislation based on his bias as a defense attorney. And it’s a bias, all right.

Take a bill he actually allowed to become law some years back, a little provision that deprived the Circuit Court of the power to try a misdemeanor drug case. Only the District Court can try these cases unless the defendant decides to take it to the Circuit Court or the drug charge is part of a more serious case.

This was a new and curious exception to the broad jurisdiction always granted to the Circuit Court and had only one conceivable motivation: to deprive prosecutors of the ability to combine drug possession cases with more serious cases at the Circuit Court. District Court judges would have to make sentencing decisions without knowledge of the other cases. Divide and conquer.

Vallario never would have let a bill pass that stripped defense attorneys of the chance to choose their court. But it was okay to do it to prosecutors to give the defense an advantage.

And now he can’t bring himself to require citizens charged with traffic violations to request a trial, even if they already do it for parking tickets. Although it would save the taxpayers money and allow police officers to spend more time on the street, Vallario won't make a defendant check a box and use a stamp. And he’s rude to the police chiefs who dared to suggest such a thing, to boot.

It’s way past time for the House Speaker to find another chairman without a conflict of interest. Good for Dresser for having the guts to suggest as much on the Sun pages.

Related prior articles:
The Politics of Picking Judges

Once is Enough

2010-02-27T09:43:00.013-05:00

I never realized how dependent the liquor industry was upon those who drink and drive until I read last Friday’s Baltimore Sun article on ignition interlock devices.

Executives from the alcohol lobby and distributors rose to the defense of drunk drivers at a Maryland Senate hearing. One didn’t want to punish those who were “one sip of wine over the limit” the same as those who were “hard core alcoholics,” as though the difference matters. Too drunk to drive is too drunk to drive.

Another feared the crippling of “our judicial process” if judges were required to order the installation of the devices for those who drive drunk. Who knew the liquor industry cared so much about judicial discretion?

One would think that alcohol distributors would support measures to reduce drunk driving and put their industry in a positive light. Or at least stay out of the discussion. Especially when the Senate bill they testified about has nothing to do with judges. And it doesn’t “punish” anybody.

Ignition interlock devices are designed to keep drivers from driving drunk by preventing them from starting their car if they have a certain level of alcohol in their system. The proposed legislation would require the Motor Vehicle Administration--not judges--to mandate the devices for those who have been caught driving while drunk or impaired.

(For those who want more information, a pamphlet published by the National Highway Traffic Safety Administration describes the devices and their benefits, including a Maryland study that showed they reduced recidivism by nearly 65%.)

The devices are not a panacea. Contrary to the lofty title of the Senate bill—the “Drunk Driving Elimination Act”--it won’t stop those who have never been caught before. And determined drivers will be able to get around the device. But an ignition interlock program should deter those who carelessly drive drunk but are not determined to do so. As for the incorrigible drunk drivers, like the one who allegedly killed Hopkins student Miriam Frankl last fall, they will still need a judge to put them away.

But their evasion of ignition interlock devices should mark them as driving time bombs sooner rather than later.

Speaking of judges, House Judiciary Chairman (and defense attorney) Joe Vallario is also “troubled by the provision that that would tell judges to require the device as a condition of probation before judgment,” in the words of the Sun. Either the Sun or Vallario has gotten it wrong.

Neither the Senate nor the House versions of the bill require judges to mandate the devices. There is one House bill, with just one sponsor, that would force judges to order interlock devices. But it exempts first-time offenders, the very ones that get probation before judgment.

So it can’t be the intrusion into judicial discretion that bothers Vallario, though the judges could use a kick in their judicial discretion when it comes to drunk driving. My guess is that he doesn’t want MVA to require offenders who get probation before judgment to use the devices.

Probation before judgment—or PBJ, as it is known in the criminal justice system—wipes a conviction off a person’s record as long as he or she satisfactorily completes probation. When it comes to driving offenses, it also keeps any points off the driving record, leaving a driver’s insurance rates and driving privileges intact. It’s a pretty hefty benefit, and nearly automatic for first-time drunk drivers.

But these drivers are the very ones who should have to use an ignition interlock device. The purpose of the device is prevention, not punishment. The goal is to prevent a second offense, not by punishing, but by making sure a person can’t start their car with too much alcohol in their system. Why should we wait for a second offense before requiring the device? Why should we wait until it is too late for some victim?

There are 29 bills catalogued under “Drunk and Drugged Driving” pending before the House and Senate combined. On the ignition interlock device issue alone, 29 senators (or 60%) and another 28 delegates (or 20%) have sponsored the bill. Both “liberal” and “conservative” legislators support it.

Between the number of bills and the number of sponsors, it’s obvious how important the problem of drunk driving is to legislators and the public. So Joe Vallario needs to stop treating the House Judiciary Committee as his own personal veto tool and let the legislation come to a vote.

As a defense attorney he ought to welcome non-judicial, non-punitive alternatives to prison like ignition interlock devices. And as a delegate acting in the public interest he should enable votes on measures that could prevent innocent deaths, not enable drunk driving.

People who drive drunk today do it in the fact of enormous public education and awareness. Once is enough to require ignition interlock devices.

Related prior articles:
Too Late, Again
The American Right to Drive…No Matter What

The Greatest Part-time Job in the World, Part I

2010-02-25T10:51:00.009-05:00

Wanted: Qualified person to work 20-30 hours a week, depending on assignment.

Salary: $127,000 plus per year.
Benefits:

—Nearly 7 weeks in vacation and personal days.

—12 holidays.

—Unlimited sick time.

—A pension worth 2/3 of the current salary after 16 years of service at age 60, and a pro-rated pension for fewer than 16 years.

—And every time the current salary is raised, the pension goes up by the same 2/3 ratio.

Too good to be true? Welcome to the world of a Maryland District Court judge.

District Court judges handle the least serious criminal and civil cases, the majority of cases in the state. They are the judges that most people encounter if they must appear in court as a witness or defendant.

But the District Court fails to do its share of criminal justice work. That was immediately apparent when I first practiced criminal law in Baltimore 23 years ago. And last spring I spent a day at each of the three Baltimore District courthouses to see whether anything had changed.

Nope.

At the Wabash Avenue court Judge Miriam Hutchins easily had the heaviest docket with 52 cases. She took the bench at 9:30 and was done by 10:35, not to return again until the 2 p.m. afternoon docket. Nearly every morning docket at the Wabash courthouse finished within 90 minutes, and the afternoon dockets lasted no more than an hour.

It was much the same at the Eastside court the next day, where most of the morning courts concluded by 10:40 and the afternoon courts by 3 p.m. One judge with five cases on her docket spent only 20 minutes on the bench and left for the day at 9:30.

And then there was the Hargrove courthouse on Patapsco Avenue. Judge Askew Gatewood, the “duty” judge for the day—the one who is supposed to be available for things like search warrant applications from police officers—didn’t even drive into the parking lot in his Mercedes convertible until 9:15 for his 9 a.m. docket. After the morning session he left for a two-hour lunch while police officers waited to see him. Arriving 20 minutes late for his 2 p.m. docket, Gatewood was still finished by 3:30.

(Gatewood is the judge convicted in 2008 for dumping waste into the Patapsco River and who runs a real estate business “on the side.” See A Judge Above the Law and A Wink and a Nod.)

Judge Charlie Chiapparelli—he of the restaurant Chiapparelli’s in Little Italy—switched dockets with a retired visiting judge so that he didn’t have an afternoon docket, a little trick I saw more than once. He then raced through his docket of traffic tickets by ensuring that no one got any points against their driving record, no matter what their driving history. Chiapparelli finished in the courtroom at 11:22 and drove off for the day at 12:15.

But I didn’t feel too sorry for the visiting judge who got stuck with Chiapparelli’s docket because he had to be there “all day” anyway to get paid. He was done in the morning by 10:15 (as were most of the courtrooms), and after a pleasantly long lunch returned for one hour of work in the afternoon.

Not once in my three days of courtroom visitation did I see a trial. And the things that went on would take a book to describe. (See The American Right to Drive…No Matter What as just one example.) The culture remained almost exactly as I experienced it two decades before. I saw public defenders leaving for personal errands at 10:30, and a senior prosecutor postponed a case with a defendant in jail because she had made a doctor’s appointment for the late morning.

The District Court compiles “bench times,” the amount of time judges spend on the bench each day. Baltimore judges, handling the heaviest caseload in the state, averaged a little over three hours on the bench per day in the last fiscal year. Only three of its more than two dozen courtrooms averaged four hours or more per day. But judges who really need extra work on their golf game should go to western Maryland, where judges average two hours, 44 minutes in court for an entire day.

And it’s not as though District Court judges are buried under paperwork the rest of the time. They don’t handle complicated pleadings and motions, or issue written decisions. They sign orders (prepared by court clerks), read probation reports (written by agents), and not much more. The bulk of their work is performed on the bench in the courtroom—what you see is what you get.

One might expect an attitude of humility and appreciation for this life of relative judicial ease, but instead the judges exhibit a tremendous sense of entitlement. The Annapolis administrative court once tried to create a split afternoon docket in Baltimore County (for example, one at 2 p.m. and one at 3 p.m.). This would reduce waiting time for defendants and witnesses. A judge protested, “But that’s the only time most of us have to see our children play sports!” This must explain why Baltimore County judges average less than 3 hours on the bench each day, second lowest in the state.

The courtroom at Baltimore’s Central Booking Facility is a particular boon to family life because there’s so little afternoon work to do. Judge Katie O’Malley once announced that she intended to finish early because she was taking her kids to the zoo. Another judge needed to stop by Nordstrom’s before picking her kids up from school. Still another bought her children tickets to a 3 p.m. show. They announce these plans in front of regular working stiffs with no sense of inappropriateness.

And now judges are assigned to Central Booking for a month at a time so they can plan all kinds of personal activities on the taxpayer dollar.

That is, when they are even scheduled for court.

In 2009, the 26 trial judges of Baltimore’s district court averaged over eight weeks scheduled out of court. That number doesn’t include sick days or snow days taken after the schedule came out, or any of their 12 holidays. While some judges probably took some administrative leave for training, fully half the judges were scheduled off for 40 days or more, and four were gone for 55 or more days.

One judge took off 49 consecutive court days. Absences like these are usually for medical reasons, but unlike regular employees judges aren’t required to use up other leave (or buy disability insurance) for such lengthy absences. This judge was gone another 47 days during the year for a total of 96 paid days out of court.

And now the Judicial Compensation Commission wants to raise District Court judicial salaries to $167,110 and their pensions to $111,295.

But it isn’t the bloated benefits that come with the part-time job that bothers me so much. It’s the fact that the District Court is of so little use to the criminal justice system.

And the responsibility for that lies not with the judges but with Maryland lawmakers.

I’ll explain in Part II.

Raises for Judges

2010-02-23T22:17:00.010-05:00

originally published February 1, 2010

Maryland judges are hoping that Maryland legislators forget about them next month. If they do, the judges will get nearly $40,000 in raises apiece.

Every four years the Judicial Compensation Commission is charged with recommending judicial salaries. Whatever it recommends, Maryland law requires the governor to include that amount in his budget, and the General Assembly must do likewise at the start of the legislative session. Unless the Assembly takes action to delete or modify any raises within 50 days, they go through.

That’s what happened in 2005 when judges got raises of $15,000 to $30,000 even though the Assembly had intended to reduce those raises to smaller amounts. Legislators just forgot to act. Oops.

Last year, after the Judicial Compensation Commission recommended a whopping $39,858 raise for every judge, legislators managed to postpone consideration until 2010 because the economy was so bad. So now it’s back on the table, with the economy still bad.

How did the Judicial Compensation Commission, which is made up of appointees by the governor, assembly leaders, and Maryland State Bar, conclude that these raises were justified?

Easy. The judges told them so.

Judges Robert Bell, Clayton Greene, and Ben Clyburn, appearing before the Commission, claimed that too many judges were retiring before the mandatory retirement age of 70, and that raising their salaries would stop this. Who are they kidding?

The pension system, not the salaries, encourages judges to retire before age 70. They can collect two-thirds of their salary after 16 years as judges beginning at age 60. Then they sit on the bench up to 90 days a year and make up the rest of their former salary. They trade in full-time work for 90 days at the same income level. And since their pensions are always tied to the salaries of active judges, they have no incentive to keep working past retirement eligibility. If active judges get a raise, they get a raise.

The judges also claim that large raises will promote “diversity” among judges. More women? No. More minorities? No. “Diversity” means more appointments from the ranks of highly paid lawyers who otherwise have no interest in public service. How about that for a twist on “diversity“?

Then they argue that they are losing judges to the federal bench. There are 265 Maryland state trial judges, and only 25 federal judges currently on the U.S. District Court for Maryland. Four of these federal judges came from the state bench and were appointed over a 17-year period. This is a run on the Maryland judiciary?

With this kind of reasoning, I now understand why I have so often scratched my head at decisions handed down by the Maryland appeals courts.

Fundamentally, what the judges really believe is that they should be paid just like federal judges. Not other state judges, where they currently rank 13th amongst the states (and 6th for Chief Judge Bell.) Federal judges.

They offer no analysis for this. No justification. It’s just a claim.

I think a case can be made for increasing the salaries of many of the judges by some appropriate amount. It’s too bad that the Judicial Compensation Commission didn’t make that case. They just swallowed what the judiciary told them and recommended obscene increases at a time when state employees are being furloughed.

Salaries ought to be tied in some way to what judges actually do, what the stakes are for the parties who appear before them, and to the impact their decisions have on the public. And if the Judicial Compensation Commission was the least familiar with what happens in the Maryland District Court, they wouldn’t recommend any raises at all for its 112 judges. In fact, they would tell the General Assembly that unless it gives the District Court meaningful work to do in criminal court, it’s a colossal waste of money.

I’ll explain why in the next two articles.

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Attorney General Douglas Gansler recently wrote a piece in the Baltimore Sun arguing that no judges should be elected. Presumably this would de-politicize the selection of judges.

Immediately Governor Martin O’Malley undercut this argument with his appointment of Thomas V. Miller III, son of Senate President Thomas “Mike” Miller, as judge. Young Miller applied to be a judge in Anne Arundel County and was left off the list of recommended candidates sent to the governor by the county judicial nominating commission. O’Malley tore up the list and demanded another, which just happened to include Miller. (See The Politics of Picking Judges.)

After several members of the nominating commission resigned in protest, O’Malley laid low for a year. But last week he quietly appointed Miller to the Anne Arundel County bench.

We don’t need elections to infuse judicial selections with politics. We’ll always have governors looking to seek or grant political favors.

And what will Senate President Miller do now that the salaries of his son and O'Malley's wife are in his hands?