Gods in Little Black Robes

The Maryland Court of Appeals sure made multiple headlines last week.  After a ruling from our highest court last year, we are now learning that dozens of convicted felons from the 1970s are entitled to new trials because of erroneous jury instructions. As a practical result, 13 murderers have already been released from prison, and the cases of others are up in the air.  It's an incredible, nearly impossible burden on prosecutors to retry cases that are so very old. 

Judges don't care about this.  But they should care about their own burden to be prompt and accountable.  How is it that only now is the Court of Appeals taking action?  

A glance at the opinion reveals the following about the case filed by Merle Unger, a convicted murderer:

• A few years after Unger's 1976 conviction, the Court of Appeals changed the plain words of the Maryland Constitution about jury responsibilities to mean something else.  Unger's trial judge (like many others) had relied on the original words.

• Unger filed a Post-Conviction petition 20 years after his conviction. Post-Convictions give defendants another bite at the apple, usually arguing that their lawyers were bad and deprived them of a fair trial.

• Nothing happened while Unger was apparently locked up in another state.  The case was taken up again in 2006.

• Between 2006 and 2012 the case went back and forth between the trial court, Court of Special Appeals and Court of Appeals over technical arguments about whether Unger had waived his rights.  After concluding that he had not, the Court issued its decision.

And there we have our legal system in "action."   

Law school taught me that most criminal trials are overturned because of errors in jury instructions.   Throughout a trial, but mainly at the conclusion of all witness testimony, judges provide instructions to juries about what evidence they can and cannot consider, definitions of crimes and reasonable doubt, and their responsibilities as jurors.  Trial lawyers fight over what instructions the judge should give because they are important. 

But in practice, what is more important than juries actually understanding instructions is the legal wrangling that takes place after a conviction.   Lawyers who specialize in appeals pour over transcripts, looking for wording errors and omissions that could open the way to reversing the verdict. Judges read written briefs, hear arguments, and write lengthy opinions over the meaning of a few spoken words.

Jurors, however, don't have the same privilege.  They usually hear the instructions once, and never get them in writing.  Yet all 12 persons are supposed to make perfect sense of them, understand them in a uniform way, and apply them appropriately.  Who are we kidding?  In reality, little to no effort is made to ensure that jurors really understand their instructions.  The instructions just become fodder for multiple appeals. 

We have to live with that.  But no one should have to live with a court system that takes decades to decide that an erroneous jury instruction requires a new trial.

A second Court of Appeals decision threw out a mandatory sentence of five years without parole for a felon who possessed a handgun, ruling that the trial judge had to impose a more lenient penalty instead.  Prosecutors are justifiably worried that this could deprive them of what has been an effective weapon against violent criminals who possess handguns.

But the more worrisome factor for me, once again, is the accountability of the courts.  The appeal in the case, according to The Sun, was heard in 2005, eight years before Chief Judge Robert Bell wrote and issued the decision.  His ruling was a fitting farewell for the retiring judge who always distrusted the even-handedness of the criminal justice system.

But Bell wasn't fair himself.  For if he is right in his legal reasoning, why did he allow all those sentenced to the mandatory five years since 2005 to serve those sentences? What duty did he have to file a timely decision in the interest of justice?  Apparently, none.

I have never been particularly impressed with the work of our appeals judges, with a few significant exceptions. Inconsistent opinions, blatantly political decisions, and just plain shoddy legal reasoning litter the landscape of Maryland judicial precedent.

And now the Court of Appeals has told us that they can issue opinions whenever they want, without accountability for unreasonable delay and the impact of that delay.  It reminds me of what my first boss told me: "Judges are gods in little black robes."  

O'Malley's Toothless Task Force

Governor Martin O'Malley, attempting to ride out the scandal in Baltimore's detention center with his presidential chances on track, announced this week the creation of a new task force, a "powerful new weapon in our arsenal" to combat corruption.

Was there ever an "arsenal' to begin with?  He didn't fight the corruption in Baltimore's jail with in-house security staff, and I haven't heard of any efforts by the Maryland State Police, which investigates crimes in the city jail. O'Malley apparently had no ammunition in his arsenal, and was forced to turn to the feds to clean up the mess.  

He asked us to congratulate him for that.   Now he wants us to believe that his task force has some purpose other than providing the appearance of action. 

O'Malley appointed six investigators from the Department of Public Safety and Correctional Services, the agency that allowed the corruption, and three from the Maryland State Police, which could have investigated at the outset.  The heads of both agencies, Gary Maynard and Marcus Brown, were appointed by O'Malley, and both should have been doing something to stop the corruption long before the feds were needed.  

The person coordinating the task force is a Baltimore prosecutor with no particular credential other than to serve on a Maryland State Bar committee that seeks to improve conditions for prisoners.  But she works for city state's attorney Gregg Bernstein, who owes O'Malley big-time for putting up half the rent money for his new offices in downtown Baltimore.  In fact, he hosted O'Malley for a tour of his floors at the Suntrust Bank Building shortly before the scandal broke.  

The task force will likely lack access to important information until the U.S. Attorney's Office completes its criminal proceedings.  And Maynard,  O'Malley's Public Safety Secretary, won't be waiting around for a task force report to come out in a year or two.  He's got to act now to reform the city jail, and to examine what may be going on in the other state prisons.

Yes, what a "powerful" new weapon O'Malley has now.   The task force allows him to pretend to be taking action.  It provides a tool for controlling the discussion, as well as to preempt legislators who will conduct their own hearings next week.  (Not that we can expect much from them, either, with the politics of our state.)

But as a weapon against corruption, the task force is a toothless tiger, the cynical creation of a governor who refuses to take responsibility and who places his own appearance and ambitions above all else.  

O'Malley's Corrupt Jailhouse

In the midst of the scandal over a gang's control of the Baltimore City Detention Center, I have been waiting to hear what Governor Martin O'Malley is going to do about his man Gary Maynard.

Maynard heads up the state's correctional system, and the city detention center comes under his control.  He hired Wendell "Pete" France, a former city police commander, to manage it, and the two of them report every month to the city's Criminal Justice Coordinating.  Some have praised Maynard for calling in the feds to investigate the jail that he runs.  And according to a rather laudatory article in the Baltimore Sun, he is supposed to be the man to fix the problem that was his job to prevent.  

I remember Maynard's presentation to the Coordinating Council several years ago about a program he created for prisoners to clean up neglected cemeteries.   He later suspended the program because inmates were arranging to have drugs hidden at the cemeteries for them to smuggle into prison.  I never heard Maynard report that to the council.  And now we have a major example of his inability, over a period of years, to manage the city's jail without drug corruption.  Yet he is still walking around with his job intact while making others take lie detector tests.  So where is Martin O'Malley, the man who hired and has always praised Maynard?

Characteristically, as federal prosecutors were announcing indictments of corrupt jail employees O'Malley was abroad, burnishing his credentials for a run for the Presidency.  That's what O'Malley is always doing.  The idea that he is taking the summer to consider whether to run for President is hilarious.  He's probably only waiting on Hillary's plans.  O'Malley has been running for President from the day he became mayor.  He exploited the 9/11 tragedy by running down to Congress and presenting himself as an expert on port security in order to gain national exposure, and has sought national attention at every opportunity since.

But this is a criminal justice blog, so let me return to my point:  that while O'Malley's attention has been turned away from Maryland, Baltimore's jail--his jail--belonged to criminals.   This from the man who launched his career by promising to be tough on crime, who promised "zero tolerance" as Baltimore's mayor.

What did those promises net for Baltimore?  An astonishing increase in arrests that alienated the African American community and resulted in an expensive lawsuit against the city.  The decimation of Baltimore's police department as he turned over one police commissioner after another.  Public, counterproductive fights with the state's District Court chief judge, the city State's Attorney, and the U.S. Attorney for Maryland.  He claimed responsibility for lowering Baltimore's murder rate, when that was due to the active involvement of the new U.S. Attorney, Rod Rosenstein--the same man who now is fixing O'Malley's problem in the city jail.  

Through the years of O'Malley's criminal justice failures he claimed success and got away with it.  He's a gifted enough politician that he will probably flick off this jail scandal, as huge and inexplicable as it is.  As I am writing this, O'Malley is already turning failure into success, claiming credit for rooting out corruption, when just a smidgen of competency should have prevented it. 

But he is no leader, merely a politician who follows prevailing winds and badly wants to be President.  As the former mayor of a city with a huge drug and crime problem, as the current governor of a state whose biggest city is still mired in drug-related crime, O'Malley could be showing the kind of innovative leadership that might actually leave a positive, indelible imprint in the lives of Marylanders.  He could be leading an effort to explore alternative solutions to the "war on drugs."

After the jail scandal broke Dan Rodricks wrote about the futility of that war.  On radio station WYPR this morning Joe Jones of the Center for Urban Families called for action to change our approach.  As a former prosecutor and Coast Guard officer, I have seen first-hand the failures of the war, and believe that Baltimore could be a testing ground for a new policy on drugs that would empty our jails, reduce crime, and end the corrupting nature of drug money. 

We need leadership to get that going.  Unfortunately, it won't be coming from O'Malley, whose priority has always been his own ambition.