Rethinking the Criminal Justice System

Welcome to a new section of our site where we'll be focusing on criminal justice reform. It will be a place to share different perspectives on how we can improve our criminal justice system, focusing especially on Baltimore and Maryland.

One of our regular contributors is going to be Page Croyder. She is a former assistant state's attorney. She supervised the "War Room" from its creation in 2004 until her retirement in January of 2008. For everyone who's not a criminal justice insider or expert, and is wondering what the "War Room" is, find out by reading Page's first contribution to our site. We'll be soliciting various other people to share their thoughts and ideas as well.

The pieces presented below are in chronological order, with the most recent article at the top.

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

A Defense Attorney's Perspective

by Maureen Rowland

CEM is pleased to welcome Baltimore Assistant Public Defender Maureen Rowland to Rethinking the Criminal Justice System.  Rowland is also a member of the faculty at the University of Maryland School of Law.

I am grateful for Ms. Croyder’s exposure of the problems in the  Baltimore City States Attorney’s Office and I can appreciate her comments as an insider. However, I too have spent most of my career working as an attorney in the criminal justice system. The difference is that I actually represent people accused of crimes and have to explain to them that they are in jail because they do not have any money to get out.   When I was a young lawyer I participated in a program with Canton Middle School in which members of the Young Lawyers Section of the MSBA escorted students to court and lead discussions in the classroom about criminal justice. They were children that routinely witnessed violence in their neighborhoods, were often living in homes with little to no parental guidance, and all had a personal experience with someone who was incarcerated. They were not sheltered, coddled, or protected youngsters. And the thing that shocked these street-wise students was that people were brought into court chained together with leg irons and handcuffs AND THEY HAD NOT YET BEEN TO TRIAL IN THEIR CASE. One student asked how a person can be in jail for a crime when they were presumed innocent? None of the lawyers could answer her.
 
I understand that the city is plagued by violence and I understand that the knee-jerk reaction to the problem is to lock the alleged perpetrators of violence up.  This quite clearly does not help solve the problem.  My biggest complaint about judges is that they don’t care what happens to the individual as much as they care about what the newspaper will say about them. I am thrilled that Judge Braverman cared enough that he saw a weak case and had the courage to do something that would certainly lead to criticism in the media. GOOD JOB, JUDGE BRAVERMAN. Instead of criticizing the judge for setting a reasonable bail (which by the way would still be more than any of my clients could ever post) why isn’t someone asking why the police didn’t do a better investigation? Eyewitnesses are notoriously unreliable—regardless of how many of them there are. Kirk Bloodsworth was convicted on the sworn witness testimony of 3 people and was later exonerated by DNA. He was innocent and was on Death Row!! Why doesn’t the States’ Attorneys’ Office work with the police instead of against them and teach them how to build a good solid case that can be tried.  Instead of looking at numbers and statistics, look at the actual consequences. Does it really make sense to arrest someone on a weak case only to plead the case for substantially less prison time and probation because you know you can’t get a conviction? Is it fair to allow someone charged on weak evidence to plead guilty for probation so they can get out of jail and then hold that conviction against them for the rest of their life? Maybe the system needs to do a better job of getting the people that are actually violent off the street instead of getting numbers of people off the street and charging them with violent crimes.
 
This is my typical client: John Doe at age 17 is arrested for carjacking or robbery based on a single person choosing his photo from an array of six.  He has a good defense—it may be an alibi, it may be that he is black and the suspect is white, the victim may be unsure of the identification, or any number of similar defenses. He is arrested in May, has an arraignment in July and a first trial date in October. His bail is $500,000 and his family cannot afford to get him out of jail.  He petitions the court to waive the case back to Juvenile Court so the charge will not be on his record but because of his age and “the violent nature of the crime” the judge denies the petition. The first trial date is postponed because the state in not ready, the second trial date is postponed because there is no court available, the third trial date is postponed because his own lawyer is in trial in another case. So far he has maintained his innocence even though he could have pleaded guilty for a minimal prison sentence. He is now on his 4th trial date, he has had a bail review in circuit court but the bail remains the same because the judge “has to assume the allegations are true” regardless of how ridiculous or weak they may be, the alleged victim is not cooperating with the State and he is offered probation if he pleads guilty to robbery. He has been in jail a year and he takes the deal to get out of jail. Of course, he says whatever the judge wants to hear because he doesn’t want to lose his deal and he doesn’t want the case postponed again. He is now 18 years old with a robbery conviction and a GED because he missed his senior year of high school. He can’t get a job but he has a baby on the way so he helps out his buddy selling drugs to get some cash so he can feel useful, so he can contribute. He is arrested and pleads guilty to felony distribution at his arraignment to get out of jail because even though his bail is only $50,000, since he is not really a drug dealer, he cannot post the bail and he has already learned that pleading not guilty only leads to a longer incarceration. Now he is labeled a violent felon and a drug dealer. If he is shot or robbed or otherwise victimized, he will not cooperate because he has little trust in the system, so the violent person who made him a victim will go unpunished and is free to victimize someone else. His record follows him everywhere so he is condemned to low paying jobs for the rest of his life.  Since he is young and ambitious and intelligent and energetic, he will sell drugs because he can make a lot of money doing that and, in his world , he is productive. This is not the exceptional case. This is the TYPICAL case.
 
Now, I can understand Ms. Croyder’s criticism of judges that she perceives to be soft on crime. She probably doesn’t see my clients the way I see them. She probably doesn’t believe the police could make a mistake or arrest the wrong person. She probably believes that eyewitnesses are the best evidence. She probably believes that it is better to be safe and lock someone up rather than sorry that one person’s life might be destroyed. This is exactly what most judges believe so she needn’t be so hard on them.

-August 19, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.  

 

 Judge Nathan Braverman, Part II

by Page Croyder

Dear Judge Braverman,

As you suggested, I paid my $15 and listened to the recording of the bail review you conducted on Demetrius Smith on July 11.  As you recall, the bail commissioner had held Smith without bail on a first degree murder charge.  Your job was to review this action.  At first you set a $500,000 bail but apparently thought this was too high, because you crossed it out and made it $350,000.   Smith posted it and walked free the next day.

The prosecutor told you that the facts described an “execution-type” of murder.  You didn’t dispute this, so you should have known that if the allegations were true, Smith would likely post your bail.  In fact, his attorney asked you twice for just “any bail.”  How telling.

Maryland Criminal Rule 4-216(c) tells you that in cases where a commissioner must hold an accused person without bail, such as for first degree murder, you may only set a bail if “one or more conditions of release will reasonably ensure…the safety of the alleged victim, another person, and the community.”

Yet you never mentioned “public safety” once, let alone why a bail would protect public safety.  You mentioned your concern for Smith’s “liberty,” but not for the witnesses who fingered Smith.  When the prosecutor reminded you about the witness murder problem we have here in Baltimore, you said “I understand.”  You even said you were “not being critical “of the police for not giving you more information about the witnesses.  Yet you still demanded “more” in order to hold Smith without bail.  As the prosecutor told you, more for you meant more for Smith, who was already accused of a cold-blooded execution.

You called the police statement “skeletal” and asked how the police identified Smith.  That was the heart of the issue for you.  It wasn’t enough that they said they located “witness[es]” who identified Smith through a photo array, that is, by picking his photo out from among half a dozen photos of different  individuals.  You said that “eyewitness identifications are notoriously terrible” in your “experience, personal and as a judge and attorney.”

Really?  Suppose there was more than one witness who picked out Smith?  Or that the witnesses knew Smith?  Or saw him on the street every day, so that they easily recognized him?  Did you know from your “experience” that police use photo arrays even when witnesses are acquainted with defendants, just so the police can confirm exactly who the witnesses are talking about? 

Apparently not.  But I know what you are thinking.  The police should have given you enough information for you to determine for yourself that the identification was reliable.

Apart from that little issue of witness safety, there’s just one problem. It’s not your job at bail review to make that determination.  A judge or grand jury will determine probable cause to believe Smith committed murder within 30 days.  Smith can challenge identification by filing motions and during trial.   Your colleagues have no trouble telling defendants who want to try their cases at bail review that for purposes of the bail review they must assume the allegations are true.   But you have invented a rule of your own.  In fact, you actually claimed that the constitution and laws of Maryland required you to do what you did.

Judge Braverman, not only did you not satisfy Rule 4-216(c), you failed to balance the factors listed in section (d).  Since you appear unfamiliar with them, here is the information you are supposed to take into account “to the extent available:”

(A)  The nature and circumstances of the offense charged:  Execution-style, first degree murder.

The nature of the evidence against the defendant:  witness[es] identified Smith from a photo array.  More information on who they were and what they saw was not available for a darn good reason. 

Potential sentence upon conviction:  death.

(B)Defendant’s prior record of court appearances and flight:  Smith had failed to appear in court before.

(C)Family ties, employment, financial resources, residence history…:  The pretrial agent told you that according to Smith he had worked for Personnel Plus for two years and lived with his sister for one year.  His attorney told you that Smith was a “homeowner” who had purchased a house on Parrish Street last year.  You did not ask one question about this although it raised gigantic questions.  For instance, how does someone allegedly working as a temp for two years buy a house?  The answer: he didn’t, at least not in his name.  If you had asked his attorney to verify her information (which she should have done before presenting it as fact) you would have learned that the listed homeowner is a woman, perhaps the sister.  Judge, in all of your “experience,” taking into account Smith’s felony drug record and the new charges, what does his putting cash into a home that he couldn’t put his name on suggest to you? 

(D)& (E): Recommendation of pretrial release agent and prosecutor:  No Bail.

(F):  Information from the defendant’s lawyer:  See above, which you failed to ask her to verify.  You did accept her argument that the defendant’s drug-dealing and assault record did not amount to a violent history.

(G) & (H):  the danger of the defendant to the alleged victim, another person, the community, or himself.   A NO BRAINER.  

(I):  Any other factor bearing on the risk of a willful failure to appear and the safety of the victim, another person, or the community…  His convictions, his pattern of arrests…But really, need there have been more?

You did not talk about these factors, but did order Smith to take urinalysis tests when he made bail, even though he denied having any substance abuse problem.  That will certainly make the community safer. 

Judge Braverman, you have sat on the bench for 8 years.  You make $127,252 to apply these basic rules.  Perhaps you should start by reading them.  And if you have, and this is the result, then Baltimore needs another judge in two years when your term is up, a judge with the judgment to protect its citizens.

Sincerely,

Page Croyder

-August 11, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

 

The Myth That Undermines the Criminal Justice System

by Page Croyder

How ironic that the day I received the recording of the Demetrius Smith bail review, The Baltimore Sun came out with an article headlined “Police: Bail gave a chance to kill.” (July 31)

For a second I thought they were talking about Smith, the drug dealer charged with first degree murder that a Baltimore judge allowed to go free last month. Scroll down below to read my article titled Judge Nathan Braverman to learn more.

But it was about another drug dealer, William Brown, who was set free on bail while pending his felony drug case, then free on probation, then free while pending a new charge he picked up while on probation. According to the allegations, he used all that freedom to murder or attempt to murder prostitutes. Contrary to the headline, it wasn’t the police pointing the finger at the judge in the article, it was The Sun. Wouldn’t it be more helpful, though, if the The Sun would report on how the judges exercise their discretion before it is too late?

But here’s what really caught my eye about the article: the observation by the reporters that Brown “appeared in court records to be a run-of-the-mill drug dealer.”

If supervising the War Room taught me anything, it’s how the false notion that drug dealing is a “non-violent” crime permeates and infects the criminal justice system. The failure to recognize and act upon the danger that drug dealers pose is one of the greatest failures of the Baltimore courts.

I know that not every drug dealer is individually violent. Some are addicts, supporting a habit. Some are hungry. Some are unemployable. But the drug trade is a violent occupation, and at its core exist those who drive the murder rate and the shootings. These are the dangerous ones, and for the cynical who think (and don’t care) that they are only shooting each other up, guess again. They pull the innocent into the grave with them, and cast a pall over the neighborhoods they terrorize.

What the criminal justice system fails to do is to identify and distinguish those who are at the core of the violent drug culture from those who subsist off the edges. Most defendants in felony drug cases are treated as “run-of-the-mill” who need to re-offend multiple times before they get some token jail time. They have to kill before they open anyone‘s eyes. (See the case of Dajuan Carter under Baltimore’s Failed War Room, below.)

Apparently, a charge of murder didn’t even open the eyes of Judge Braverman, who gave Smith his freedom despite an alleged execution-style murder. Smith’s lawyer argued at his bail review that “there is nothing in my client’s background that’s a connection to violence.” Hello, Smith was a convicted drug dealer with an additional conviction for misdemeanor assault and the malicious destruction of property. But Braverman agreed with the lawyer, citing “allegations that don’t fit [his] history.” The two of them may just as well have said, “Well, he hasn’t shot anybody before that we know of…”

I do need to say that most of Baltimore’s District Court judges would never have set bail for Smith, even if he had no record at all. There is some comfort in that. But for less serious charges, many of them will set bails that reflect their failure to discern the danger that drug-dealers pose, beyond the chemical danger of illegal drugs. In other words, they see the charges and offenders as non-violent.

For example, had Smith been charged with another drug distribution case instead of with murder, nearly all the judges would have let him post bail even if he was already pending another felony drug case. Although the law requires a bail commissioner to hold a defendant without bail in that situation judges can--and almost always do--set bail when they review the commissioner’s action. But look at Smith’s arrest pattern. In addition to the convictions, he had two more assault arrests, an attempted distribution of drugs, and a trespass. The War Room saw this arrest pattern repeatedly, and it is not the pattern of a non-violent addict. Smith is more than likely deep into the violent culture. And “more than likely” is relevant for bail determinations.

Many judges refuse to hear about arrests when setting bail, even though nothing prohibits this. Judges, wake up! Arrest records are important tools for distinguishing between the dangerous and the less dangerous. (You listen when defense attorneys tell you their clients have zero arrests, don‘t you?) Arrests give you important information, particularly the pattern of arrests, in making a decision on public safety. If a person charged with drug-dealing has an arrest record for shoplifting and panhandling, doesn’t that suggest non-violence? And if the arrests are for car theft graduating to assault and attempted murder, doesn’t that tell you something else? Don’t put a bag over your heads by throwing away useful information. Pretrial agents need to start giving you the whole picture, and you need to listen.

Judge Braverman obviously believed that Smith was one of those “run-of-the-mill” drug dealers who didn‘t pose a violent threat. In that he has a lot of company among judges, bail commissioners, pretrial agents, probation officers and even prosecutors. If they don’t start treating drug-dealing as a violent activity, and develop the means to distinguish between dealers, the criminal justice system will continue to recycle these offenders until they kill.

In my next article, I will discuss the main reason Judge Braverman used to justify Smith going free, and why he lacks the judgment to make the critical assessments necessary to protect the public safety.

-August 05, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

A Brief Reply

by Page Croyder

Doug Colbert’s response to my articles on Judge Braverman and Judge Miller is from the perspective of a man who has made it his special mission to release more people from jail while they are pending trial. I respect his position, even if I do not agree with all of his views or the data he has used to support those views. And despite what he suggests, I am no advocate for locking everybody up, or for judges to follow every prosecutor’s recommendation.

However, he fails to appreciate the point that I have tried to make throughout my articles, including those on the judges. Baltimore’s criminal justice system fails to recognize and focus its resources on the most dangerous and violent criminals. Even Professor Colbert has focused his bail reform efforts on behalf of the non-violent criminal.

The examples I gave of Judge Braverman’s and Judge Miller’s actions illustrate my point. I wasn’t talking about drug addicts and petty criminals. I focused on individuals charged with murder and convicted of violence or gun charges. Judges who let defendants like these roam the street have worked in anonymity too long. Let their actions come into the light, and let citizens judge for themselves. I gave the facts and my opinion. Professor Colbert gave his. Judge for yourselves.

What I found most interesting about Professor Colbert’s piece, however, was his assertion that at first I was running against Pat Jessamy for State’s Attorney and now I must be running for judge. One would think a professor would be willing to engage in a discussion without personalizing the issue and resorting to imagined ulterior motives the way that politicians do. And look what a waste of time it is--already he has had to change his theory. When I write about the Parole Commission, will he have to change it again?

I could easily accuse Professor Colbert of trying to ingratiate himself with judges before whom he appears as a defense attorney. But frankly, I think his beliefs are sincere, not formulated to gain favorable treatment. And even if I didn’t, I’m not going there, with him or anyone else who takes another view. I will stick to trying to educate the public about a criminal justice system that many find mysterious and frustrating.

-July 28th, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

EXAMINING CROYDER'S CRITIQUE

by Doug Colbert - Professor at University of Maryland Law School

We're pleased to welcome Doug Colbert to the conversation about crminal justice reform. In addition to his teaching duties at the University of Maryland, Doug serves on the Board of Directors of the Public Justice Center and the Maryland Criminal Defense Attorneys Association. He is a founder of the Lawyers at Bail Project and a past chair of the Maryland State Bar Association’s Section on Correctional Reform.

At first, former city prosecutor, Page Croyder’s insider view of the Baltimore City State’s Attorney office helped readers understand some of the internal tensions and differences that she believes separated her prosecutorial philosophy from current officeholder, Pat Jessamy. Introducing herself on the Center for Emerging Media website as a reformer who believes in ethical conduct, Croyder argued against the politics of selecting judges and challenged Jessamy’s spokesperson, Margaret Burns, for prematurely releasing charging documents to a reporter and for assisting her to write a misleading crime story. Since then, however, Croyder´s commentary has evolved to present a criminal justice system where she sees no shades of gray: the accused is dangerous, violent and must be jailed before trial; judges are there to rubber stamp a prosecutor´s recommendation or should expect to face a one-sided attack on their judicial character.

Believing Jessamy has not been an aggressive crime-fighter, Croyder’s post saves most of its salvo for charging prosecutors and judges with being too soft on crime. Interestingly, Croyder does not speak from the perspective of the trial prosecutor who is disappointed with a judge’s sentence after obtaining a conviction. Instead, she speaks from her experience as a supervising prosecutor charged with recommending bail when an accused first enters the justice system before there has been a trial, much less a finding of guilt. Croyder knows the Baltimore State Attorney´s office has an extremely low conviction rate in which only one out of three arrestees are convicted. She sees bail as the way to keep certain people in jail as a way of imposing punishment before trial.

But following our federal constitution, Maryland law places enormous value on protecting individual liberty before trial. Typically, it expects the government to prove guilt before depriving someone of their freedom. Former U.S. Supreme Court Chief Justice Rehnquist, known for his strong law and order views, recognized that liberty before trial is the norm in our country and pretrial incarceration the “carefully limited exception.”

Croyder, though, believes in preventive detention. She wants ¨War Room¨ prosecutors to be more aggressive in seeking high or no bail. She urges prosecutors to be more “creative” by moving to revoke defendants’ bail when they are rearrested, even for a minor loitering charge that she knows is constitutionally suspect and will rarely result in conviction.

Croyder makes no mention of the race and class implications of her bail philosophy. More than 90% of more than 3,500 detainees awaiting trial are African American. Most are charged with non-violent crimes that will be among the many that ultimately will be dismissed or not prosecuted. Yet, people charged with these offenses frequently remain in jail for 30 days and longer solely because they cannot afford the bail amount, frequently $500 and less. The more ¨fortunate¨ accused person regains freedom by paying the bondsman´s expensive 10% non-refundable fee to avoid losing a job or home while incarcerated. Croyder never refers to her ethical duty to recommend pretrial release for the economically disadvantaged accused person who presents no public danger or flight risk and has sufficient community ties. There is no prosecutors´ Peace Room¨ to identify individuals entitled to release on recognizance. Instead, Croyder´s trained Part 40 prosecutor consistently asks for bail in every case.

Croyder charges Jessamy should “educate” judges who appear too concerned with protecting an accused’s right to pretrial liberty while awaiting trial. She never educates the public that the judiciary is an independent and separate branch of government that must be respected because judges are needed to curb prosecutorial power and excesses. We should be thankful, for instance, that the U.S. Supreme Court exercised this essential role in blocking the Bush Administration from further suspending the right of habeas corpus, the right to counsel and other fundamental due process protections for anyone it accused of terrorist acts. Prosecuting attorneys must do everything they can to support an independent judiciary and to avoid the type of public criticism that denigrates judicial integrity and process. When they disagree with a judge´s ruling, they should pursue a legal remedy like every lawyer.

That is why Croyder’s attacks against two Baltimore city judges, Nathan Braverman and John Miller, are so damaging. Each judge exercised independent judgment and followed a well-accepted philosophy about bail and sentencing that differs considerably from Croyder’s.

In Judge Braverman´s ruling, Croyder thought no bail was appropriate for a person charged with murder. Judge Braverman did what every judge is obligated to do: he looked beyond the seriousness of the charge to consider the strength of the prosecution´s evidence against the accused. This murder case had remained unsolved for four months, making identification essential. The police charging document, however, provided no witness´ name, which is unusual considering an accused´s constitutional right to confront his accuser. It mentioned that a person known to the police had identified the defendant from a police photo array, a procedure considered the least reliable and most suggestive form of identification. The judge asked the prosecutor for additional evidence to connect the defendant with the crime. The prosecutor produced nothing. Still, Judge Braverman set bail at $350,000, not exactly chump change and surely no indication that the judge is ¨soft¨ on crime. Indeed, many lawyers would consider $350,000 bail excessive for such a weak evidentiary case. Croyder, though, concluded that the judge ¨just doesn´t care¨ about witness safety. Nothing could be further from the truth.

Croyder provides no way to review Judge Miller´s reasoning for his handling of violation of probation sentences. She charges the judge refused to send people to serve lengthy prison sentences for missing meetings with their probation officer, for being rearrested but not convicted, or for being convicted of a minor offense. She concludes the judge is typical of “Baltimore’s judges - - with some exceptions - - [who] have used their discretion to let criminals walk for too long [and who] have lacked the guts to lock up criminals for not following the rules.” Such broadside attacks may score points with some people and with law and order politicians. Most knowledgeable observers would strongly disagree and see Croyder´s sweeping remarks as a conscious effort to intimidate every Baltimore city judge to follow a prosecutor´s recommendations..

Knowing full well that judges’ code of ethics precludes their responding to public criticism of their rulings, Croyder’s blistering attack on judges is extremely disturbing. Having previously been an unsuccessful candidate for a Circuit Court judgeship, Croyder should know the damage she causes when she criticizes the judiciary for not walking in lockstep with the prosecution.

Readers may have read Croyder’s first blog post as the preliminary round of a contested “Page v. Pat” primary race for city state’s attorney. However, her last two posts suggest how she might resume her quest for a judgeship position. In either situation, we must expect a more balanced perspective rather than making a brazen appeal to be the most hard-line prosecutor or judge on the block. Even the toughest, law and order prosecutor must consider the objective evidence of guilt and then apply his/her awesome discretionary power judiciously. Former Nuremberg chief prosecutor and Supreme Court Justice Robert Jackson summarized the prosecutor’s primary duty was to seek justice and not merely to convict or punish an accused. Ms. Croyder would do well to follow Justice Jackson’s advice.

-Published July 28th, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

THE EMPTY THREAT OF PROBATION

by Page Croyder

When a judge puts a convicted criminal on probation it comes with a condition: that he follow all the rules that probation requires. The Baltimore Sun’s July 13th story on the Violence Prevention initiative instituted by the O’Malley administration (which didn’t get the credit) describes the efforts of probation agents to ride herd on violent criminals, reporting each of their probation violations to a judge and asking the judge to lock them up.

The story reports the judges’ discomfort with the initiative, summed up this way by the headline writer: “City judges say probation plan erodes discretion.”

What baloney. No one has the power to make the judges do anything. Probation agents can only ask for warrants. Prosecutors can only ask for jail time.

It’s not about loss of discretion. Judges just don’t want to lock up criminals for what they consider to be minor probation infractions. They have created and sustained a culture in which a criminal practically has to commit the same offense again in order to go to prison. By then, of course, it’s too late.

Once I sent a prosecutor to handle a violation of probation hearing for a defendant who was on probation for robbery. His record included three felony drug convictions, two robberies and a handgun violation. He absconded from supervision and failed to pay restitution to the robbery victim, so the judge issued a warrant. It was served when police arrested the defendant for assisting in a drug deal. That case was dropped when the police officer was late for court, but I summoned the officer to the violation of probation hearing to testify to the drug offense.

The judge announced that he would not hear any evidence of a crime without a conviction. So the prosecutor tried to revoke probation on the absconding and restitution violations, asking for the 10 years that had been suspended. Instead, the judge continued probation and let the defendant go. The prosecutor begged me to never send her to his courtroom again.

Who was this judge? John P. Miller, Judge-in-Charge of the Criminal docket and chair of the Baltimore Criminal Justice Coordinating Council. Here is what Judge Miller told the Sun about the Violence Prevention initiative:

“You cannot get by by saying, ‘This is a person we think is a bad guy and let’s go back and revisit his sentence.” The technical violation, does it rise to the level of saying, ‘I go back and resentence you on the original matter?’ That is what you are saying. That is not the purpose of a violation of probation.”

What an extraordinary quote. First, the judge doesn’t know that a violation of probation sentence is not a “resentence” on the original crime. Second, placed in the context of the probation hearing I described, Judge Miller admits that for him, the defendant’s background is completely irrelevant to the probation sentence. This is exactly why so many judges do little or nothing on probation violations. They want the violations to be so serious that they can justify sending someone to jail on the act that constituted the violation, instead of for violating probation itself. They ignore the crime for which probation was imposed in the first place.

In most probation cases, a judge will impose a jail sentence that is appropriate to the offense, and then suspend all or a part of it. In Baltimore this is often done to move cases along, part of the plea bargaining process on a crowded docket. A defendant is always required to obey the rules of probation as condition of not going to prison. All of the rules except the one to “obey all laws” (and certain special conditions) are commonly referred to as “technical” rules as though they aren’t important, rules like reporting to a probation agent and reporting new arrests. A defendant who does not follow the rules can have the suspended sentence imposed. He is not “resentenced” for the original crime.

Too many judges pay no attention to the “technical” rules, which are there to make sure the defendant is on a law-abiding path. Many also don’t care about new “minor” offenses. For example, if a person on probation for dealing drugs with a handgun is convicted of trespassing, many judges will either not revoke probation or will impose a minimal sanction. They have completely forgotten that the defendant was a gun-toting drug dealer who was lucky to be returned to the street in the first place because the courts can‘t try all their cases, and who was supposed to follow the rules. They don’t care that they undermine the purpose of probation itself when they shrug off new “minor” convictions or “technical“ violations.

I am not advocating that a judge send every probationer to jail for any violation. I firmly believe in judicial discretion. If the gun-toting drug dealer’s trespass arrest was for cutting though posted property on his way to his stable job, by all means continue probation. But if he was hanging on the drug corner, sitting with drug dealers on people’s steps who complain to the police, if he ignored warnings to stop, he should get his time, the time he deserved to get in the first place. He was not on his way to a law-abiding life, but back into the old life.

Baltimore’s judges--with some exceptions--have used their discretion to let violent criminals walk for too long. They haven’t used it to distinguish between the dangerous and non-dangerous, and they have lacked the guts to lock up dangerous criminals for not following the rules. Judge Miller claims that probation hearings don’t exist to put dangerous criminals away. He has it backyards. When they fail to follow the rules, it’s criminal not to.

A Dozen Examples of Judge John P. Miller’s Use of Discretion in Violation of Probation Hearings:

1. Judge Miller dismissed violation of probation charges in a defendant’s felony drug case after the defendant was put on probation again for a new armed robbery case. (This illustrates the judicial principle of “If the other judge didn’t do anything to him why should I?”)

2. Defendant was on probation for a handgun violation. He was convicted of drug possession and Judge Miller imposed no sanction for violating probation. He then was convicted of drug possession again, and again Judge Miller imposed no sanction for the probation violation.

3. Defendant was on probation for armed robbery and picked up a new robbery charge along with drug possession charges. He also had failed to perform 100 hours of community service. He got 18 months in the drug cases. Judge Miller imposed 2 years out of a possible 4 years, running the sentence concurrent to the drug cases. A concurrent sentence means that they are served at the same time. This got the defendant an extra 6 months for violating probation.

4. Judge Miller found the defendant guilty of violating probation for not reporting to his agent and other “technical” violations but refused to sentence him until after a new drug case was resolved. The defendant was on probation for armed robbery with a suspended sentence of over 9 years. When the new case was dropped, Judge Miller sentenced the defendant to time served (3 months and 25 days.)

5. Defendant’s probation was for possessing a gun in connection with drug dealing. He was arrested again for dealing drugs after he had stopped reporting to his agent. Judge Miller did not wait for the new sentence this time. He imposed all of 6 months out of a possible 3 ½ years, which the defendant served while waiting for the other case to resolve.

6. Defendant was on probation to Judge Miller for rape in the second degree. His new drug case was also handled by Judge Miller, who gave the defendant another probation for the drug case and nothing for violating his probation.

7. The defendant had not reported to his probation agent for two years and was arrested for drug possession and giving a false name. He was convicted on the false name charge. Defendant was on probation to Judge Miller for two armed robbery cases and was exposed to 16 years in prison. The judge dismissed the violation of probation case.

8. Defendant was on probation for statutory rape. When he was convicted for the same crime again in Baltimore County, Judge Miller imposed a suspended sentence for violating probation and put him back on probation.

9. The defendant failed to perform 20 hours of community service on his handgun probation and was convicted of a new drug possession charge, getting another probation. Judge Miller dismissed the violation of probation in the handgun case and terminated any further probation.

10. Defendant’s probation was for a felony drug violation with four years suspended. He then was convicted of another felony drug crime, but Judge Miller did not issue a warrant until he was arrested again for robbery. The robbery case was dropped but the defendant got 4 years in the new drug case. Judge Miller decided to dismiss the violation of probation.

11. Defendant was on probation for armed robbery and could get 13 years if he violated. He was arrested on felony drug charges and new misdemeanor drug charges. He had failed to report to his agent for 8 months or to pay $2500 in restitution. Prosecutors asked Judge Miller to revoke probation and impose the suspended sentence while the other cases were still pending, but Judge Miller refused. He waited until the defendant got 18 months on the felony drug case and then imposed only 3 years, making it concurrent. That added 18 months (of the possible 13 years) to the sentence in the new case.

12. While the defendant was on probation to Judge Miller for a handgun violation he was convicted of a felony drug crime. He got 5 years in the new case. This time Judge Miller imposed all the time that had been suspended--two years--but ran it concurrently to the new sentence, resulting in no additional time for the probation violation.

-July 18 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

JUDGE NATHAN BRAVERMAN

by Page Croyder

Why can’t Baltimore keep its violent criminals off the street? For one thing, Judge Nathan Braverman.

Last Friday, he set a bail of $350,000 for 25-year-old Demetrius Smith, overturning the decision of a commissioner to hold him in jail without bail. Smith posted bail the next day, something I wouldn’t have been able to do. But I am not a drug dealing enforcer.

What was Smith accused of doing? Putting a gun to the head of his victim and shooting twice. Judge Braverman allowed a convicted drug dealer, now charged with first degree murder, to walk out of jail.

I asked Judge Braverman for his reason, and he told me that it was “inappropriate” for him to comment on a “pending matter,” referring me to the audiotape of the proceeding. I intend to listen to it, and will report back what I hear. But I did read the charging papers at the courthouse, and I have over four years of experience reviewing how Judge Braverman handles bail reviews when I was a prosecutor. My educated guess is that he felt he didn’t have “enough” to hold Smith without bail. A district court commissioner had “enough” to actually charge first degree murder after reading the application from the homicide detectives, but Judge Braverman didn’t have enough to keep him locked up.

Here is what the charging documents said: that after the victim, Robert Long, was found murdered, the police investigation revealed that Smith had been walking near a park near the 400 block of S. Stricker Street with the victim when he pulled out a gun and shot him twice in the head. He then fled the scene. The police located “witness[es]” in developing this narrative who identified Smith as the shooter through photo arrays.

The police will certainly be disclosing who those witnesses are and exactly what they said at the appropriate time, so that Smith can defend himself at trial. That is what discovery is for. Discovery does NOT apply to bail review.

Judge Braverman doesn’t get that. He is always complaining that he needs to know “more.” How many witnesses? What did they say? He knows that a defendant can use this information to find out who the witness or witnesses are. He knows all about witness intimidation, and witness murder. He just doesn’t care. I have a file of bail reductions from Judge Braverman that make my hair stand on end, and a quick glance through it produced this eerily similar case from 2005, without the corpse: The defendant was identified by a witness as one of four defendants who dragged a victim into a street yelling about money and beat him so severely he had facial fractures and cerebral hemorrhaging. (If this sounds like street level drug enforcement to you, you are catching on fast.) The commissioner set a $500,000 bail, the prosecutor asked for “No bail, and Braverman lowered the bail to $3500 in cash. He then cynically suggested to the defense attorney that he remind his client about the new witness intimidation statutes, now that Judge Braverman was letting his client hit the street.

So Smith is out there right now looking for that witness or witnesses, or anyone he thinks may be that confidential witness. If something happens to them, if they are not available for trial, Judge Braverman would then be free to comment on his rationale, since there would no longer be a pending matter. Most likely he would congratulate himself on having perceived how weak the state’s case was, since, after all, it was dropped.

But in fairness to Judge Braverman, who is due to be reappointed in two years, we can count on him to hold an offender without bail in at least one circumstance. He once lowered the bail of a convicted robber from no bail to $250,000 after he was charged with another robbery. When the defendant muttered something under his breath, however, Braverman took the file back from the clerk and raised the bail back to no bail with the comment, “Anything else you want to say?” Too bad for the public that Smith wasn’t one to disrespect the judge, or he might still be in jail. An execution-style murder charge couldn’t keep him there.

-July 15, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

WHAT BALTIMORE WANTS

by Page Croyder

 

It seemed like an open and shut case. A citizen notified police that a young black man was sitting on some steps with a gun. The police arrived, found the gun at the man’s feet, and arrested him. The case went to trial and the defense called no witnesses.

The jury acquitted him.

This kind of result--not uncommon—frustrates police, prosecutors and even judges, and is one reason why defendants get lenient plea deals. But this jury explained its thinking—and the thinking of many juries-- after the verdict. They sent the defendant a note, begging him to use the break he got to put his life on the right track.

Baltimore’s citizens are afflicted by crime in two ways. One, they grieve over their lost young men, who spend so much of their lives in and out of jail. They want the police who arrest them to be unbiased and legally justified. They want “the system” to give the law-breakers, many of whom come from difficult backgrounds, a chance to change their ways. They want their young men back with their families.

But they also suffer—more than anyone else who may be wringing their hands on the outside—at the hands of the criminals. The drug dealers loitering in front of their houses and schools, trespassing on their steps and porches, intimidating those who obey the law, the shootings that claim both their innocent young and the young men who are part of that culture—this they want to stop as well. They want the police to stop it and the courts to stop it.

They bring this conflict with them as jurors. The young man with the gun--he hadn’t hurt anyone with it, and they wanted him to get a second chance, not to waste years behind bars. What they didn’t know was that he was on probation for armed robbery. He already had his second chance. With the third chance the jury gave him, he went out to sell drugs. It’s a matter of time before he kills, if he hasn’t already, or gets killed.

The law does not permit most juries to know about criminal records. But prosecutors know, and not just about convictions. They know, or should know, that a pattern of arrests can be very revealing. For example, a person with no convictions but two dropped attempted murder cases is more dangerous than the convicted drug felon whose other arrests were for theft. The first has the power to intimidate and get away with violent behavior. The second is probably supporting a habit.

But the volume of crime--driven by drugs--is so high that everyone is treated pretty much the same. A person selling drugs will be treated like an addict. A robber convicted for the first time will get probation. These may be appropriate results, depending on the circumstances. But the criminal justice system does not know which circumstances are relevant, or how to assess the dangerousness of the offenders who come before them.

Dajuan Carter, who I wrote about in my first blog (Baltimore’s Failed War Room), was a walking time bomb. And his was an easy case, in my view. Yet no one recognized it until it was too late.

In my last assignment in the city’s State’s Attorney’s Office I had three roles. One was to resolve the cases of jailed persons charged with minor offenses as quickly as possible. A second was to charge—and not charge—cases brought by the police to the Central Booking Facility. The third was to supervise the War Room, a program that was supposed to focus on repeat violent offenders. In those three roles together I began to understand what I hadn’t known for much of my career: how to distinguish between the dangerous criminals and those who need alternatives to prison.

In a city where resources are always stretched and scarce, knowing how to take the truly dangerous off the street is critical to accomplishing both of the things that Baltimore’s citizens want. Send the non-violent to drug treatment, to job training, to their families, with assistance to keep them from destroying the quality of life for others as they improve their own. Use prison resources for the truly dangerous, until they are no longer dangerous (and offer them the tools to become productive once they are out.)

But to get there, we must first recognize who belongs in which group. That’s why the War Room was important, why creativity is needed, and why the governor must appoint the best judges, issues I touched on in my first three blogs. Most of all we must have a master plan, dynamic leadership from every criminal justice agency, and accountability. This the system still lacks, but it is not out of reach.

 

-June 27, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

FEEDING THE PRESS

by Page Croyder

In my first article on Baltimore’s failed War Room, I remarked that Baltimore’s press has been lolling about while Margaret T. Burns has been feeding them their criminal justice stories. Within days, the Baltimore Sun and Burns, spokesperson for State’s Attorney Patricia C. Jessamy, proved my point.

“Joint Effort Nets a Big Fish” blared the headline in the Maryland section on Saturday, May 31. The story chronicled the arrest of Christopher Shaw, a criminal who has eluded prosecution for murder and other crimes but had now been arrested, and was complete with quotes from Burns about how tough her office was going to be on Shaw. His case “reflects [the] new pledge of city officials and prosecutors to work together and find creative ways of targeting the worst of the worst,” in the words of reporter Annie Linskey.

Except the article—and Shaw’s arrest—showed none of that. Why?

He beat up three women for putting up a No Trespassing sign to keep away drug-dealers like him. He had to be arrested, whether or not he was somebody’s target. He must be prosecuted with firmness, whether or not police had him on their focus list. And the reporter utterly failed to inform the public that Shaw, at the time of his arrest, was pending felony drug charges and, while those were pending, had been arrested three more times and was convicted of loitering, with no consequences whatsoever.

Burns, who is not an attorney, is notified when targeted criminals like Shaw get arrested. When Shaw’s name came up she, on her own initiative and in violation of prosecutorial ethics, fed the charging documents (before they became available to the public) to the Sun’s Linskey, along with the spin: catching “a big fish” through joint cooperation. The reporter bought it and wrote it. Voila! Burns got the story she wanted and the reporter another article to her credit. This has been the pattern for several years now.

But not only did Burns and Linskey leave out the fact of Shaw’s pending felony charges, they covered the fact that prosecutors failed to attempt “creative” ways to get Shaw off of the street before he attacked the women. Where was the creativity in arresting him after he did it?

Sheryl Goldstein, head of the Mayor’s Office on Criminal Justice, called Shaw’s arrest “an opportunity to focus our resources and attention on him.” I don’t mean to bash Goldstein, who has shown leadership, energy and creativity, as well as a commitment to not fighting with Jessamy as the prior administration did. In fact, she is doing all of the heavy lifting when it comes to new initiatives, while Jessamy and Burns ride her coattails. But to call a felony assault “an opportunity” to get to Shaw…please. The suffering of the victims is not an opportunity, it’s an outrage that should have been prevented.

There are several things prosecutors could have done to get Shaw off the street so no “opportunity” to beat up women presented itself. Some of them have to do with the potential the failed War Room had. I won’t go over that ground again here, except to say that had Jessamy been educating the judges Shaw might not have been out on a mere $25,000 bail. But just look at what happened after Shaw did post bail in October 2007 on his drug charges. He was arrested three more times—including another drug-dealing case that was dropped--and prosecutors made no effort to revoke his first bail. Shaw was even convicted of loitering, which is hard to do (and I commend the young prosecutor who made the effort.) So why didn’t the prosecutors handling the felony drug case file a motion to revoke his bail? Where was their “focus?”

I can hear it now from prosecutors and judges: “What? Revoke bail for a loitering arrest?” That’s the same old thinking, the status quo. If a new crime is minor it doesn’t count. But War Room prosecutors—before Jessamy squashed their efforts to revoke probations--once used a loitering charge to get jail time for an individual who was on probation for attempted murder. The judge, at first reluctant, was persuaded by evidence of other times the probationer was arrested for similar activity in the same vicinity, the records of the other criminals he was loitering with, and the reminder that he was supposed to be obeying every law, however minor, as a privilege of his release. And in Shaw’s case, if the judge wouldn’t go so far as to revoke bail, they could have tried for strict supervision and an order that Shaw stay out of the 3500 block of Reisterstown Road, the area where he creates his mayhem and has been arrested numerous times. When he showed up there in March of 08 and was arrested for trespassing, they could have revoked his bail, two months before he went to the very same block to beat up the women for their No Trespassing signs. (And by the way, in that context—citizens trying to keep drug dealers from hanging around--don’t the loitering laws seem more than minor now?)

But Jessamy’s prosecutors didn’t even try. So much for creativity and focus.

I e-mailed Linskey to ask how she got the case documents in Shaw’s case and the information on his criminal background. She had the courtesy to call me, but would only say that the documents were “public records.” She did not seem to know that a prosecutor’s release of them before they become publicly available—and maybe even at all--is unethical, though I don’t suppose Linskey would care. Burns makes her job easier, which is Burns’ goal. As for Shaw’s criminal record, Linskey said she did look it up herself and acknowledged that she should have reported on his pending felony case, but didn’t think the loitering case was “important”. Not only did these omissions mislead the public, she allowed Burns to get away with her repeated excuse that prior prosecutorial efforts to detain Shaw were unsuccessful because they couldn’t find witnesses. They were unsuccessful because they lacked the very same creativity and focus Burns and Linskey claimed they were showing.

I don’t think Linskey did it deliberately. She was too focused on her angle, the one she repeated to me: how hard everyone is working to target violent offenders in certain areas of Baltimore. She just let what she wanted the story to show—as well as the easy byline Burns gave her—blind her to the real facts. She is not alone in this. The Examiner’s Luke Broadwater practically acts as Jessamy’s press agent at times, and the radio stations and TV outlets gobble up what she serves. (Exceptions are the City Paper and WYPR who are doing some real criminal justice reporting.) When the reporters and editors of Baltimore stop feeding at Burns’ trough maybe they can shine a more penetrating light on the criminal justice system. Otherwise, politicians and their spin artists will continue to make phony, unchallenged claims about their progress.

-June 09, 2008

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

THE POLITICS OF PICKING JUDGES

by Page Croyder

To those outside the legal community, the recent flap in Anne Arundel County over judicial nominations has been illuminating. It reveals a process for picking judges that drips with politics, even when the positions are non-elected. But for lawyers like me, the real story is not that this stuff happens, but that someone exposed it.

For those who did not follow the controversy, it goes like this: The Anne Arundel Judicial Nominating Commission sent a list of candidates they found to be qualified for three vacant judgeships to Governor Martin O’Malley. O’Malley responded by demanding more names to reach a mandatory quota that he imposed only after he got the first list. That list had left off the name of Thomas V. Miller III, son of the most powerful man in the State Senate, Thomas “Mike” Miller. After some intensive lobbying of commission members by political types, Miller was added to the list as a “qualified” candidate.

O’Malley, ever the impatient one, clearly orchestrated Miller’s nomination. This is not unusual behavior for a governor. (Did anyone notice that Miller III was appointed a parole commissioner only four years out of law school by newly-elected governor Parris Glendening? Seems like new democratic governors feel a need to pay early favors to the Senate President.) O’Malley just overtly did what is covertly done all the time, probably expecting no one to complain.

The Baltimore Sun, weighing in on the issue, chastised O’Malley for making a new quota, as though without it citizens would get “the most-qualified candidates, not those most closely tied or related to powerful officials.” The Sun should know full well the dirty little secret of the Maryland bar, that judicial appointments are extremely political, whoever is governor. “Political” can take various forms, whether it is to please a constituency (women, minorities, etc) or to confer a personal or political favor. Governors have prized judgeships from time immemorial as a way to cultivate or reward political loyalty.

The Sun would have us think that judicial nominating commissions provide the “most-qualified” candidates, even as it acknowledges that “many political cronies—too many to list here—have been nominated and appointed to judgeships.” Now how did that happen? Judicial nominating commissions give governors the cover they need to appoint who they want by pinning the label “qualified” on them.

What makes a person the “most-qualified” is an extremely subjective issue, even for those commission members who try their best to keep politics out of it. A person can make the “list” of nominations one year and not the next and vice versa, though nothing has changed on his or her resume. Take one Catherine Curran “Katie” O’Malley, who missed the cut one year but made the list (and was appointed) not long afterward. What changed in the interim? Her husband was elected mayor of Baltimore.

This doesn’t mean that she—or Miller—was or was not “qualified.” It just means that getting on the list is often about something other than qualifications, depending upon the nominating commission and the governor.

There are many illustrations of how the process really works to discuss at another time. But for now, the real story is that three members of Anne Arundel’s Judicial Nominating Commission stood up to O’Malley. They exposed the fiction that commissions serve up the “most-qualified” when the governor has pre-selected a candidate. As a former colleague of mine said, getting a hard-working, competent judge of integrity “is merely an accidental by-product of the system.”

To have three members of a commission—who are largely appointed by governors--actually resign over what happened strikes me as unique. I called Paula J. Peters, the member of the Anne Arundel Judicial Nominating Commission who had served the longest before resigning. She told me that her experience with the Miller nomination was the “worst” interference she had ever seen. While it was normal to discuss candidates with other lawyers for their views, she had never been lobbied by politicians before. And she had never been asked to nominate a candidate when her commission had just rejected him. So she quit, publicly.

Peters is not giving up a paid position. But she had served on the nominating commission for 20 years, and when she said she was “sad” that her service ended on this note, I could hear it in her voice. She will get no public recognition, neither for her service nor her resignation. O’Malley will move on and eventually do what he wants to do. But she—as well as fellow commissioners Eileen E. Powers and Marysabel Rodriguez-Nanney—deserve a great deal of credit. It is never easy, never pleasant to rock the boat, and there are sure to be consequences for them of some kind. But they have allowed the public a small glimpse into the ugly side of the process that makes our judges, one that the legal community and our politicians would prefer remain hidden.

As for O’Malley, considering his mission to reform the criminal justice system as Baltimore’s mayor and Maryland’s governor, it is particularly ironic that he is making the same political use of judgeships as any other governor. Take a recent O’Malley appointment that has to be a strong candidate for Most Lightweight Appointment Ever. This judge began as a prosecutor, the type of amiable but immature young man who would talk about going into trial to “kick butt” only to have his butt kicked instead. There was always some excuse—the jury, the police, etc. which, together with his work habits, kept him from ever improving. He also was an overt homophobe, referring to gays as “fudge-packers” and offering the view at the height of the AIDS crisis that this was “God’s way of getting rid of homosexuals.” After nine ineffective years and a failure to advance he left prosecution, kicked around at his daddy’s firm, and eventually landed as an assistant public defender, where his talents were apparently more suited to punching holes in cases than to building them. More significantly, his wife became very friendly with Katie O’Malley, and he made a connection with fellow assistant public defender Lisa Gladden, who happens to be a state senator from Baltimore. And his brother happened to give $2500 to the Friends of Lisa Gladden. Some think it was the Katie O’Malley relationship and others think it was the Gladden-to-Martin O’Malley connection that got him nominated and appointed. But to call his record “distinguished,” and assure citizens that they could expect “equal and exact justice” from him (gay citizens, watch out) as O’Malleys’ press release claimed, is laughable. If O’Malley is serious about reforming the criminal justice system, he can start with getting the best people on the bench.

Views expressed here do not necessarily reflect those of the Center for Emerging Media. You are welcome to make comments to this article using the form below. If you would like to submit a rebuttal to this article, please send your article to cem@centerforemergingmedia.org. CEM regrets that we cannot publish all articles but we will give each submission full consideration.

BALTIMORE’S FAILED WAR ROOM

by Page Croyder

On Thursday, May 29 Brandon Grimes will go on trial for the murder of off-duty police officer Troy Chesley on January 9, 2007. A high profile crime, the trial will no doubt be closely followed by the media.

Less than two weeks later, Dajuan Carter will come to trial for the murder of 17-year-old Ronald Harmon, who was shot dead in March, 2007. Just a routine murder for media purposes—another young, black victim of no special note—this trial will likely play out in obscurity.

But both Grimes and Carter had been noticed by Baltimore’s War Room prosecutors and flagged for special attention prior to either murder. Neither should have been roaming the streets when Troy Chesley and Ronald Harmon were shot dead. They represent the War Room’s failure, a failure that was caused by the State’s Attorney’s Patricia C. Jessamy and ignored by Baltimore’s media.

The War Room was created in 2004 following the murders of the six-member Dawson family by a firebomb thrown into their house. Since the fire bomber was on probation at the time he killed the Dawsons, the idea was to focus on repeat violent offenders who were under criminal justice supervision. The State put up the money for personnel, the city chipped in with equipment and technology, and the War Room was placed in the hands of Jessamy, Baltimore’s top prosecutor. Attorneys and clerks were supposed to identify the violent offenders who were on probation, make bail recommendations when they were arrested, and track their progress through the criminal justice system. They did exactly that, recording the results of bail hearings, cases, and hearings on parole and probation violations.

But the only information Jessamy decided to publish was the result of bail hearings. Although her staff was collecting a rich repository of data that could be used to identify the most dangerous criminals and to keep them off of the street, Jessamy refused to share the information that would make the mission successful.

Not only that, Jessamy did not even study the data herself. She delegated the review and editing of War Room reports to her press aide, Margaret T. Burns, who published as little as possible to government agencies. Not one operational person in the office outside the War Room read, analyzed or used the information to change prosecutorial practices or to bring issues to the attention of other agencies.

And so we have cases like Grimes and Carter. Grimes became a “war room offender” when he was arrested for carrying a handgun while already out on bail for the same crime. The War Room recommended a bail of $500,000 but the bail commissioner set only $100,000, which he posted immediately. He was still out on both of those bails when Chesley was murdered. Jessamy gave the War Room’s bail recommendation to the press to cover herself, which embarrassed the District Court judiciary and caused them to start paying more attention to War Room recommendations. But the War Room had been operating for over three years at the time of the murder. Had Jessamy been working closely with the judiciary from the beginning, they might have paid attention sooner, and Grimes might have stayed in jail.

Jessamy also allowed the Circuit Court judiciary to take a hit in the press when it came to light that a judge had previously allowed Grimes to walk away with a plea deal of only six months for two prior cases. Grimes had been on probation for altering the serial number of a gun and for auto theft and could have gotten nearly three years in prison if he violated probation. Instead, when he was arrested for another auto theft, he was sentenced to only six months for both cases. This practice, which is so common in Baltimore’s courts, had been identified early on by the War Room as a significant problem. But Jessamy let the sentencing judge take the blame, even as she was failing to point out to the judges and her own prosecutors how these deals undermine the focus on violent criminals.

Jessamy’s failures contributed in yet another way to letting Grimes go free. Not only had the War Room recommended a high bail in the second gun case, it had notified the head of Jessamy’s specialized gun unit of the second arrest so that he could ask a judge to revoke the bail in Grimes’ first gun case. He did nothing. He also did nothing when Grimes was later arrested for misdemeanor assault and misdemeanor burglary. Grimes was pending not only the gun cases but the burglary case when Chesley was murdered.

Dajuan Carter’s case is even more representative of the failure of the entire criminal justice system to focus its resources on the appropriate criminals. His history is outlined more specifically below, and features the worst practices of the criminal justice agencies: a specialized prosecutorial gun unit failing to take any special action, judges bundling up cases for lenient plea deals (with no objection from prosecutors), the Parole Commission letting inappropriate offenders out early, bail commissioners and bail judges who won’t keep dangerous offenders in jail pending trial, and sheriffs and police not making special efforts to serve warrants. The War Room was pointing out most of these issues a year into the program. But Jessamy, by keeping it from everyone’s sight, including her own, made it fail its mission.

It’s particularly ironic, therefore, to hear Jessamy claiming credit these days for a reduced homicide rate in the first quarter of 2008. Although it is way too early to tell what caused the drop and whether it can be sustained, her claim is that “now,” with Sheila Dixon as mayor instead of Martin O’Malley, she is able to focus on violent offenders. She blames her arch-enemy O’Malley for arresting too many people when he supervised the police commissioner, which took away her ability to focus. Baltimore’s reporters, who have been lolling around these last few years while Margaret T. Burns feeds them their criminal justice stories, have failed to raise two fundamental problems with this claim. First, Jessamy controlled her caseload by refusing to charge many of the cases that O’Malley’s police brought in. Second, and most significantly, both the State of Maryland and O’Malley as mayor had given her extra resources to focus on violent offenders—extra resources, that is, to run the War Room. No one has questioned what she has done with those resources, and every year her funding is renewed.

But in fact, Jessamy buried the War Room. She has no one to blame for the failure to focus on violent criminals—criminals like Brandon Grimes and Dajuan Carter--but herself.

Dajuan Carter’s adult criminal career:

2001: November--arrested at age 16 for illegally carrying a handgun and charged as an adult. Bailed out.

2002: February-- put on probation by Judge Joseph McCurdy, who suspended three years. Prosecutor was Janet Hankin, head of a special unit focusing on juvenile gun offenders.

May and December--arrested for felony assault and felony drug possession, charged as juvenile. Neither the specialized prosecutor nor Carter’s probation agent took action to violate the handgun probation. New cases were handled in the juvenile system.

2003: August--arrested for drug dealing (age 18), posted bail.

December--arrested again in December for drug-dealing. Held in jail until trial.

2004: July--Judge McCurdy turned his probation over to Judge Pierson, who was handling the two new drug cases. Prosecutor Miabeth Marosy sought one year. Pierson imposed probation in the new cases and on the violation of probation. Carter was now exposed to 10 years if he violated probation.

October--arrested for drug dealing and made bail.

2005: January--arrested for drug dealing, flagged by the War Room, and held without bail.

July--Judge Pierson turned his three probation cases over to Judge Joseph Kaplan who was handling the two new cases. Carter was facing 20 years, including 10 without parole. Judge Kaplan, with the acquiescence of prosecutor Marosy, imposed 5 years.

2006: September--released in September on parole by parole commissioners Michael Blount and Perry Sfikas after doing less than 21 months on a five year sentence.

November--arrested for carrying a handgun. War Room prosecutors recommended “no bail.” District Court commissioner Rodney Winns set bail at $300,000. Judge Barbara Waxman agreed with the bail, and Carter posted it.

December--Parole Commission issued warrant. Neither parole agents nor Sheriff’s office served it.

2007: February--failed to appear in court on his handgun charge. Warrant issued. Baltimore police failed to serve it.

March--Ronald Harmon found dead on March 27, shot multiple times.

April-- arrested and charged with the murder of Ronald Harmon. Trial is scheduled for June 10, 2008.

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