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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.
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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.
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.
It needs to act now, and make the District Court mean something to the justice system.
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.
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