A Stupid Trial

What do you make of a story like the one published last week in the Sun, about a city police sergeant on trial for tape recording a judge during an argument over a search warrant? 

The police wanted to search a car in which the victim of an attempted murder was found, asking Judge Joan Gordon to sign a search warrant.  She didn't think she should be bothered about it on a Saturday night and argued with a police supervisor, who recorded their conversation without her knowing about it.

A technical violation of the law, yes, but a pretty trivial instance to put before a criminal jury, it seems to me. What are prosecutors trying to prove, exactly, beyond placating an offended judiciary? 

I once had a child sexual abuse case in which the mother of the victim recorded an incriminating conversation with the abuser.  I couldn't use the recording because the law prohibited the taping and any use of it, to the detriment of my case.  But I did not press criminal charges against the mother.  The police sergeant who did the taping in this case should have known better, and an administrative consequence is appropriate. But a criminal trial?   Sheeze...

The problem between police officers and judges over warrants has been going on a long time and should have been resolved ages ago.  That it continues and has come to a criminal trial should shame both the judiciary and the police department, but mostly, in my view, the judiciary. 

Baltimore city judges are supposed to take turns being "on duty" for one week at a time.  Since there are about 60 of them, this means they should have this duty less frequently than once a year.  The duty judge is supposed to be available for such after-hour needs as the review of search warrants. 

But judges and police have fussed about this ever since I can remember.  Judges feel that police bother them after hours for non-emergencies.  It's true that many, if not the majority, of search warrants are the result of investigations that take a period of time to develop, and are not emergencies.  However, police officers work shifts around the clock, so it's not possible to always prepare and present warrants during the judge's work day.  Since officers have to swear to the truth of what they say before the judge, and may need to answer questions, they can't just send a secretary in with paperwork for the judges to sign.

To minimize their own inconvenience, individual judges often make their own rules for reviewing warrants.  Many, for example, refuse to sign any "narcotics" warrants after hours, which they regard as routine.  My introduction to this came when police called me for help when a duty judge refused to review a narcotics warrant even though police were actively guarding a house from entry in order to keep a suspected stash of drugs from disappearing.  We had to search for another judge willing to do the job of the duty judge. 

To me the solution is simple: police officers should do their best to present their warrants during reasonable hours, while judges should resign themselves to the fact that for one week out of every 60 they will be reviewing warrants after they leave the courthouse.  They should just go home and be mentally prepared for the police to come over, not whining about officers interrupting them while they are out at dinner or the mall.  The judiciary and police department can easily establish a joint review panel to handle complaints about abuses by police officers and by judges.  The leadership for that should come from the judges, who hold the power. 

I once tried to show some leadership. When I supervised the Central Booking Division of the State's Attorney's Office, I volunteered my division, which worked around the clock, to evaluate whether the police truly faced an emergency situation before waking up a judge in the middle of the night.  This meant that I, personally, would be woken up much more frequently than any one judge when my staff called to consult me.  And that I, personally, would bear the brunt of judicial anger if they disagreed with my assessment.  Yet I volunteered.

The response I got from the District Court judges--the ones who work part-time--was that they would be happy to take me up on my offer, but that they also wanted me to read and review the warrants for probable cause.  It wasn't enough that I would prevent their being woken up for non-emergencies.  I had to do their job for them, to determine if probable cause existed before they could be disturbed. 

I declined their greedy request.  And these half-dozen years later, we have a poorly-regarded judge, Joan Gordon, arguing with a police sergeant over whether a weekend warrant could wait until Monday.  We have the sergeant, worried about what Judge Gordon might do to him, turning on his recorder so he could prove his version of events if needed, and now facing a criminal conviction and the loss of "everything" for doing so.  

And we have a small glimpse into the lazy, egotistical, dysfunctional world of key players in criminal justice system. 

The Public Defender's Purge

My summer vacation from this blog went on so long I thought I might never return, but an item from the Daily Record caught my eye and sense of disgust.  The Baltimore Sun, that increasingly irrelevant paper, apparently didn't notice, but the city public defender's office underwent a purge last week. 

 Many of the office's most experienced trial attorneys were demoted or fired.  This includes their second-in-command, Grace Reusing, and their chief felony lawyer, Bridget Shepherd.  It's not a shake-up.  It's a melt down.  

What State Public Defender Paul DeWolfe hopes to create from the molten remains is anybody's guess.  But from my perspective, the man lacks both intellectual honesty and basic humanity.  

The Daily Record reported that "at least" one person was fired, but at least five were tossed out into the street.  DeWolfe clearly intended a new beginning, but only had the guts and honesty to force it upon his white employees.  

How does the person who managed all of those fired and demoted employees, who worked hand-in-hand with the deposed Reusing, not get the axe as well?  Elizabeth Julian, the city's Public Defender, is African-American.  

How do five older white men get canned, while 66-year-old Bob Cummings, no more distinguished than any of them, survive?  He's also African American, and yes, he's the brother of that Cummings, U.S. Representative Elijah Cummings.  Wolfe purged only to the point he anticipated political fallout. 

Then there's the humanity aspect.  One of the employees told me there was no warning, no indication of poor performance, no request to change what they were doing, nothing.  Just boom, you're out, effective immediately.

I know most of the persons DeWolfe ousted or demoted.  I tried cases against them, worked with and sometimes battled with them over policies and programs.  Each one was a dedicated, competent advocate for their clients.  I never met any more tenacious advocate than Shepherd, who once, to my amusement at the time, called herself and her office the "moral conscience of the criminal justice system."  But that is exactly how she conducted herself.  She stood up to every perceived violation of the rights and interests of her clients. 

Her reward for her many years of effective service to her clients?  A demotion to an entry level position, a deliberate humiliation. 

At least, I suppose, she now has the choice to quit when she is ready.  The older white men got fired without warning.  Oh, they may be able to draw early retirement, which, if they are lucky, means a third of what they are making now.  They were given no time to to look for other jobs, to readjust their retirement planning, to plan for their families' welfare. 

One assistant public defender who is keeping her job spoke out, calling DeWolfe's actions "cruel."  That would be Lisa Gladden, whose freedom of speech stems from her position as state senator and vice-chair of the Judicial Proceedings Committee.  If DeWolfe wouldn't fire Cummings, he won't be firing Gladden, either, even when she correctly sums him up. 

By what standards is the performance of the public defender's office measured?  Who knows.  DeWolfe pretty much has carte blanche to make whatever decisions he wants on any grounds he wants. 

And if that includes the inhumanity of firing competent workers without notice, and the blatant use of age, race and gender in the demotion and retention of employees, so be it.

Pretty ironic for an agency charged with protecting the rights and respecting the dignity of those it represents.   

Tough, Transparent or Neither?

David Simon of The Wire fame has an interesting piece on his blog.  It's long (over 4500 words) so I will boil it down:

• Police and prosecutors are pulling statistical tricks on the public because The Sun is no longer adequately staffed to properly cover the crime beat.
• The police have ceded to State's Attorney Gregg Bernstein complete authority to charge murder cases.  This makes his rate of convictions artificially high and the police rate of unsolved murders artificially low.

There's a lot more to the article, of course--the details and explanations, some self-justification, and a proposed solution.  But here's what I found most interesting: that a State's Attorney who campaigned on the promise of transparency and the willingness to take on tough cases has apparently retreated on both fronts.  

According to Simon, Bernstein is using his unilateral power to charge cases to cherry pick the best cases, a tactic that should keep his conviction rate high for political purposes.  Bernstein directly criticized his predecessor for dropping tough cases, but at least she took the hit in her statistics.  She just blamed the police for lousy work.  But, says Simon, Bernstein can make his conviction statistics look great by not charging cases to begin with.

To which I say, what statistics?  I went to a meeting of the Baltimore Criminal Justice Coordinating Council earlier this year at which Bernstein gave his "annual" report.  (His predecessor gave a quarterly report.)  Bernstein talked completely in generalities, with not a single benchmark with which to measure his performance.

I asked for a follow-up meeting, and learned from him that it was a "little too early" to report out on the accomplishments of his new violence unit (that was nearly a year old) and that he had little handle on other statistics, sources of statistics, or plans to publish statistics.  During his campaign he said he would post his conviction rates on his website, but 18 months into his tenure they have yet to appear.  Where's the transparency?

Perhaps it's still "a little too early" for Bernstein, but when it comes to murder cases he had better get his conviction rates out there quickly before the police take back their power to charge.  Bernstein's wife, Sheryl Goldstein, who headed the Mayor's Office on Criminal Justice, announced her resignation hours after Police Commissioner Fred Bealefeld announced his.  Goldstein and Bealefeld were joined at the hip. 

It was Goldstein who greased all the wheels for her husband when it came to police-prosecutor relationships.  I worried at the outset that the situation was a little too cozy but saw negligible reporting or concern from the Sun (which underscores Simon's point on adequate beat coverage.)

But with a new police commissioner and no wife in the mayor's office, Bernstein will have to stand on his own two feet.  I doubt the new top cop will give up the right to charge cases.  Prosecutors and police should cooperate and collaborate, but also balance each other.  It's not healthy for one to dictate to the other.

And while we wait for a new police commissioner perhaps Bernstein can start working on the transparency he promised.  We might find out which claim is true: Bernstein's that he's tough, or Simon's that he's cherry picking.