The Next Pitcairn Murder

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

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

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.