Judge or First Lady?

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

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

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

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

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

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

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

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

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

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

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

A Well-Intentioned Mess

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So here are my recommendations to the General Assembly:

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

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

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

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

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

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

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

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

When Judges Get Practical

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

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

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

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

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

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

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

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

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

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

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

Cha-ching!