Criminal Justice

As the U.S. Attorney for Maryland, Rod Rosenstein has the authority to pursue a wide variety of cases, from going after child pornographers to targeting gangs to fighting terrorism. Yet the effect of his office is often overlooked by the media.  He joins Marc in studio to discuss the work his office does, his thoughts on U.S.

Count me among those who view Barack Obama’s election as a thrilling triumph for America.   But since my topic is criminal justice, and this piece is on the bad news about Baltimore’s violent crime, I have to mention a potential dark lining to the silver cloud.  

     The reason for Baltimore’s drastically decreased homicide rate in two words:  Rod Rosenstein.   

Nancy S. Forster, the State Public Defender, dropped a little bombshell at the Baltimore Criminal Coordinating Council meeting earlier this month.  Due to budget cutbacks, she grimly said, she no longer has the money to pay for lawyers to represent all the defendants who are eligible for free services.    While she and Governor Martin O’Malley were discussing a solution, for now she would reject some defendants even if they couldn’t afford an attorney.   Defense attorney Margaret Mead told me that this has the potential “to bring the entire system to a screeching halt.”

It reminded me of Forster’s predecessor, Stephen E. Harris, who once used the same tactic.  If you don’t give me more money, I won’t represent defendants.   He and Elizabeth L. Julian, District Public Defender for Baltimore, claimed that their city caseloads were too high and in March, 2002 began turning away new clients.   Governor Parris Glendening quickly gave them more lawyers.  How could he not?  Poor people are constitutionally entitled to lawyers, aren’t they?

Except that at the very time Harris was turning away those clients, he was representing defendants who were not entitled to free lawyers.  These were defendants who had just been arrested, hadn’t posted bail, and were going to their first bail review within a day or two of arrest.  Instead of making this clear to lawmakers and asking whether he should redeploy his resources, Harris played his trump card.  

Forster’s following suit, this time with cases in which more than one person is charged with committing a crime.  The Public Defender’s Office can’t represent all the co-defendants because they may have conflicting interests (one co-defendant may want to blame the other, for example.)  In the past the Public Defender has represented one co-defendant and paid for private lawyers to represent the others, but that is what Forster says she will no longer do.     

Yet her office is still representing people at bail reviews.  In Maryland defendants are not entitled to attorneys at their first bail review hearing.  (A lawsuit has been filed challenging that fact, and is on appeal after losing in the trial court.)  Nevertheless, the Public Defender provides bail representation to defendants in Baltimore and has done so for years.

City bail representation evolved out of Mayor Martin O’Malley’s Early Disposition Court, which the Legislature first funded in 2000.  The Public Defender asked for and received a whopping 28 attorneys to run the program (compared to the State’s Attorney’s six).   When the program failed and was revamped I asked Grace E. Reusing, Deputy District Public Defender for Baltimore, how they justified their funding when they needed no more than five attorneys to staff the revised court.  She claimed that they had been told to use the funds both for Early Disposition Court and for bail reviews. 

After Forster made her announcement, I asked her about the current state of bail representation.  She said that in addition to Baltimore her attorneys represented defendants at bail review in Harford and Montgomery counties, both of which paid her office for the services.   The State paid for Baltimore’s bail program through the Department of Public Safety and Correctional Services.  I asked specifically about the amount of money and number of attorneys involved and she said she would have to check into it.

I then got an e-mail from her spokesman, Kimberlee Schultz that said,  “…we are in the midst of a personnel crisis (due to severe underfunding).  Therefore, it is difficult to do the work necessary to maintain our core mission, so we just do not have the resources right now to respond to all your questions.  You have the option of filing a Freedom of Information Act request.”

Funny, I tried that option once before when writing a report about the Early Disposition Court, and Harris and Julian blew it off (in violation of the law, I might add.)   I then called the legislative analyst who had worked on the project for the House of Delegates for information and got no response, learning later that she had subsequently left to work for the Public Defender.   

A competent financial/personnel officer could or should have had the figures close at hand.   Forster had not been the State Public Defender when bail review representation began and I was willing to believe that she hadn’t thought about the issue when trying to resolve her budget concerns.   But I know a stonewall when I see it, having smacked into one before. 

Before the State, city and counties scramble to find more money in tough budget times so that the Public Defender can meet her “core mission,” they ought to first stop funding activities outside of that mission.   One report put the Public Defender’s funding for Early Disposition Court (which is now used mostly for bail review representation) at nearly $1.7 million.  That’s in 2000 dollars, before the big raises that ex-public defender Kendall Ehrlich got for them as First Lady.   Think how many defendants could be represented in today’s dollars.   

I don’t oppose free representation at bail review as a theory (though I will have more to say on its effective and efficient use of taxpayer funds later.)   But unless and until it is a legal right, Forster has a duty to be forthright about her agency’s funding and use of resources, especially in times of painful deficits.  Instead, she is using defendants who have an absolute right to her services as pawns in a power play for more funding.  This time, the governor needs to take a hard look at her claims before robbing Peter to pay Nancy. 

Another Source of Savings

Maryland could divert another $70,000 to hiring private lawyers for co-defendants by ending the Public Defender’s funding for the War Room, a program that was supposed to focus law enforcement efforts on repeat violent offenders.  This was another Ehrlich gift, funding for an agency that had nothing to do with the War Room and demonstrated no need for additional resources.   Last year the State took back half the funding because the Public Defender didn’t even spend the money. 

Kristen M. Mahoney, Executive Director of the Governor’s Office of Crime Control and Prevention which administers the funding, recognizes that the Public Defender is “missionless” when it comes to the War Room.  To her credit she has asked Julian whether she wants to scrap this year’s funding and divert it to paying private attorneys for co-defendants (though I don’t know why it should be up to the Public Defender.)  Mahoney is waiting on Julian’s answer,

 While $70,000 pales in comparison to that spent on bail review, quite a few poor co-defendants could get lawyers out of it.  The State Public Defender ought to be looking at all of her non-essential funding before turning away the clients who represent their “core mission.”

If anything illustrates the unwillingness of government to reform the criminal justice system, it’s last Friday’s headline in the Baltimore Sun.

If my guess is correct, sometime this month we should find out what, if anything, the Commission on Judicial Disabilities is going to do about Baltimore District Judge Askew W. Gatewood, Jr.

On Labor Day weekend I had brunch with friends who had brought their daughter down from Long Island for her freshman year at Johns Hopkins University. Standing outside the Café Hon in Baltimore’s Hampden neighborhood afterwards, I suddenly saw Governor Martin O’Malley walking alone towards the door of the restaurant. No entourage, no bodyguards. Just him, in a suit, an Obama button pinned to his lapel.

"Governor O’Malley," I said, stopping him. With his politician’s gift for names and faces he stuck out his hand and quickly replied,

"Hello, Page. How are you?"

I turned to the new Hopkins freshman and introduced her to the governor of Maryland. Her dad, who thought I had been kidding, jumped in to shake O’Malley’s hand. O’Malley asked them where they were from, said nice things about Hopkins, and went inside.

I have been thinking about it ever since. O’Malley hasn’t seen me for about five years. We both used to attend meetings of the Baltimore Criminal Justice Coordinating Council when he was mayor and I was chief of personnel in the State’s Attorney’s Office. On two occasions, after he bullied one deputy state’s attorney and condescended to another, I stood up to him by pointing out the complexity of solutions he painted as simple. He confronted me after the second incident.

"Why do you hate me?"

"I don’t hate you, Mr. Mayor. I just don’t like the way you twit our office."

"Twit? Is that a word?"

That’s about all I can quote of our brief conversation. I don’t think I convinced him that I didn’t hate him. And I didn’t have enough time to explain to him that I admired his energy and desire to change things, but objected to his strong-arm tactics and refusal to listen to anyone he considered in the way.

For example, not long after becoming mayor he decided that an "early disposition court" would get rid of half the criminal cases in the District Court and free up resources to devote to violent crime. When highly respected Chief Judge Martha F. Rasin objected to certain elements of the plan, O’Malley not only sent her a cartoon drawing of stick figures to explain the process, he said that if she still didn’t understand she could ask the chief clerk in Baltimore because "he’s a pretty smart guy." A breathtaking insult, so audacious that the Maryland General Assembly rewarded O’Malley with all the money he wanted for the program. And all the money went down the drain when the flawed idea failed (though he cleverly covered it up by repackaging it into something else.)

He was wrong about Early Disposition Court, but right about wanting federal prosecutors to be more involved in city crime. So he tried to publicly bully U.S. Attorney Thomas M. DiBiaggio as he had done Rasin, but DiBiaggio would have none of it. Instead he investigated O’Malley’s police chief Edward T. Norris, eventually convicting him on corruption charges after he left the job.

And speaking of police chiefs, O’Malley went through four of them in his seven years. Every time a new chief came in heads rolled, purging the ranks of experienced officers and detectives. One such officer who loved his job told me that after a few years of the O’Malley administration he no longer recognized the police force. The lack of experience and training was so appalling that he abandoned his police career after nine years.

But from my perspective, O’Malley’s biggest mistake in criminal justice was to deliberately alienate State’s Attorney Patricia C. Jessamy. When elected mayor he cut her out of any crime strategy planning. He poured resources into the police department but failed to give Jessamy a single new trial attorney to prosecute violent crimes, at least until he was running for governor. He publicly insulted her by saying she should get off her "ass" to prosecute a police corruption case, igniting a public and bitter war that set crime-fighting back for years. O’Malley started the war and Jessamy wouldn’t finish it.

Overall, O’Malley was a good mayor with successes, not the least of which was building a more competent and efficient city administration, one that Sheila Dixon has inherited to her great benefit. But on his signature issue—crime--I believe he largely failed. He was a young man who used his energy, enthusiasm and edge on a single political benchmark (homicides) and alienated crucial partners for the sake of his ambition.

And now I return to O’Malley at the Café Hon. Whatever the wisdom of his being alone on a city street, I liked it. He was real and accessible. And his courtesy to someone who has been a critic (even an insignificant critic like me) was refreshing in an uncivil world.

All politicians have to stand and take criticism (and most can dish it out.) Unfortunately, criticism too often crosses the professional line and descends below the belt. Citizens have a right to demand honest and efficient stewardship of public funds and programs. They have the right to call out their leaders. But they must also respect the difficulty, even the thanklessness, of public service and keep the discourse civil. And public officials must listen, respect, and learn from other points of view.

O’Malley showed me, standing there on The Avenue in Hampden, that whatever his personal feelings, his professionalism came foremost. I would like to think that he still has the edge he showed as mayor, enhanced by experience, wisdom, and respect for others. O’Malley could be more than just another pretty politician with a bucketful of ambition. But his ambition would have to come secondary to a desire to make a real difference.

He did make a small difference for one person. In her first few days at college a lonely freshman, commiserating by phone with her mother, had this consolation: "At least I got to meet the governor of Maryland."

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.

There it is again, that lie. The one that State’s Attorney Patricia C. Jessamy and her spokesperson, Margaret T. Burns fostered back in 2005 to undermine their bitter political enemy, Mayor Martin O’Malley.

In 1994 the city comptroller, Jacqueline F. McLean, went to court on charges of stealing city funds.   The case quickly became a circus, with the aggressive defense attorneys, M. Cristina Gutierrez and William H. “Billy” Murphy, Jr. egging on Judge Elsbeth L. Bothe.   Judge Bothe, who had a volatile temperament on the bench, allowed herself to be drawn into shouting matches with Gutierrez and Murphy, who did not want her on the case.

 Enter the Baltimore City Council.  Five members, including then-Councilwoman Sheila Dixon, attended a meeting with the administrative judge at the time, Judge Joseph H. H. Kaplan, to express their concerns.  Following this meeting, Judge Kaplan postponed the case and then removed it altogether from Judge Bothe.

 I was shocked.   A judge removed from a case after a meeting with politicians?   Whatever Judge Kaplan’s reasons—and he said they had nothing to do with the meeting--his action carried the stink of political interference, that “appearance of impropriety” that public officials should avoid (but so often don’t.)

 Then I encountered another surprise.  I went into the voting booth a few months later and saw Judge Kaplan running for judicial election unopposed.  Unopposed?  After removing a judge from a case following a meeting with politicians?  The idea entered my head that someday I would challenge the “sitting judges” who were up for election, not for the purpose of becoming a judge myself, but just so that they did not get a free pass on their behavior.   In 1998 I felt sufficiently motivated by the conduct of some of the sitting judges to do this.  What an enlightening experience, running against the legal establishment that is behind the sitting judges, but that’s a story for another time.

 My purpose here is to make clear my view on judicial independence and accountability.   Judges should not be removed from their duties for how they exercise their discretion unless they have some corrupt motive (such as making decisions for profit or for personal connections) or unless they no longer possess their mental faculties.   They must be protected from political interference and from emotional passion when they interpret and apply the law.  The call of Delegate Donald H. Dwyer, Jr. to impeach Baltimore Circuit Judge M. Brooke Murdock in 2006 because he disliked her ruling on gay marriage was an egregious example of both politics and passion attempting to infect the judiciary. 

However, independence does not give judges immunity from criticism, lest we yield our laws, even our Constitution to those who prove unequal to the task of applying them.  When, according to conservative and liberal scholars alike, the Supreme Court ignored their prior precedent to reach a poorly reasoned decision in the Florida presidential vote recount case of 2000, should those scholars have refrained from educating the public about their highest court?  When local judges fail to follow the rules and laws that have been put in place by the people of Maryland, can they do so in anonymity, without scrutiny? 

Unlike federal judges who are appointed for life, Maryland judges at the trial level serve for fixed terms.  District Court judges are appointed by the governor for 10 years and Circuit Court judges are elected (usually after first being appointed) for 15 years.  These terms are long enough to give them independence from being fired for unpopular decisions, but allow the legal community and citizens to evaluate their actions as judges over a period of time.  Judges don’t have a right to be reappointed.  And every one of them will receive a generous pension from the citizens of Maryland if they aren’t.

So I could be angry at what appeared to be political interference with one judge’s handling of a case, yet at the same time want to hold another judge accountable for the interference when he stood for election.   Judges are independent during their terms, but accountable when it is time for appointment or election. 

Baltimore’s Fraternal Order of Police (FOP) has called for Baltimore District Judge Nathan Braverman to be removed from conducting bail reviews for allowing Demetrius Smith, charged with an execution-style murder, to post bail.  Smith then allegedly shot someone else in a robbery while on bail.   Even before the second shooting I was disturbed by Judge Braverman’s bail ruling.  He had failed to follow the law and the rules, in my opinion, imperiling public safety.   I criticized him to get him—and other judges who are like-minded—to examine their actions.  I brought other examples of Judge Braverman’s bail decisions to light so that citizens—and the governor—can evaluate whether the Smith case was an isolated example or a pattern that they want continued when Judge Braverman’s comes up for reappointment in two years.  And I support the right of the FOP to criticize the judge.

But I don’t support his removal from bail reviews.   He must remain free during his term to exercise his discretion.   He is not free from criticism, which may encourage him to reevaluate his approach.  But if he doesn’t—if he thinks I am wrong and he is right--that is the very essence of judicial independence, which is fundamental to the U.S. legal system.   It is why the careful selection of judges in the first place is so very important.  Unfortunately, it is also so very political.  (See my earlier article, The Politics of Picking Judges.)

Frankly, I have seen too much of the legal community in action to anticipate that Judge Braverman will not be reappointed.   Only when lawyers—not including prosecutors—get mad is there even any noise about reappointments, and that is rare.  Defense lawyers have got to love Braverman.   Almost any argument, however serious the case, will get him to lower bails and allow dangerous clients to go free.   But I put this information out there so that the public and the governor can evaluate whether another 10-year term for Judge Braverman is in the interest of Baltimore, an evaluation that is the governor’s duty--and the people’s right--to make.

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.

For those who may have been on vacation last week or who don’t read the Baltimore Sun, Demetrius Smith was arrested again last week. This time he is charged with shooting a 56-year old man in the leg while robbing him on the street where Smith lives. The good news is that he is finally being held without bail.

Smith is the man charged with first degree murder that Judge Nathan Braverman allowed to go free on bail in early July. The Fraternal Order of Police (FOP) is now calling for Judge Braverman to be removed from conducting bail reviews. The Sun quoted Chief Judge Ben Clyburn as saying that judges have "very broad discretion in determining bail." This is true, though they have rules (which are cited in the article Judge Braverman II) to guide them and a law passed by the people of Maryland to follow: that when a crime is so serious that the law requires a bail commissioner to hold a defendant without bail, there is a presumption that the defendant "will flee and pose a danger to another person or the community." Judge Braverman never said how Smith rebutted this presumption.

Below are just a few additional examples from the past several years as to how Judge Braverman exercises his broad discretion. There are plenty more. As to the FOP’s call for his removal from bail reviews, I will offer my view next week.

In another event of interest, Brandon Grimes, one of the subjects of Baltimore’s Failed War Room, was convicted of first-degree murder last Friday in the killing of off-duty police officer Troy Chesley in 2007. Congratulations to Kevin Wiggins, the prosecutor, and to the police detectives who put the evidence together, evidence so strong the jury was out just a few hours before pronouncing Grimes guilty. It is comforting to know this killer will be off the street for a very long time. But while State’s Attorney Patricia Jessamy basks in the glow of the conviction, what comfort does she take in the fact that she made no effort to prevent Grimes from being free to murder in the first place? No effort to revoke the bail that Grimes was on for a handgun arrest when he was arrested with another gun, and then for assault, and then for burglary? No effort despite the fact that Grimes was a designated War Room offender for whom the citizens of this state give her additional resources to focus upon?

When her War Room funding comes up for renewal in the next legislative session, it will be interesting to see whether our legislators demand any more information from her on her efforts than she has been willing to release so far.

More Braverman Bail Decisions

The examples below describe what the probable cause statement alleged.

2005: Defendant sodomized his 15 year old daughter. The commissioner set a $250,000 bail. The prosecutor at bail review asked for "no bail," telling Judge Braverman that the Baltimore Police had been trying to extradite the defendant from South Carolina but were able to arrest him instead when he returned temporarily for a funeral. In response to a question from Judge Braverman the prosecutor also revealed that the defendant had been charged with child abuse and rape in 1990, though the charges had been dropped. Judge Braverman lowered the bail to $150,000.

A victim ran at a police officer screaming "He’s got a gun, he just robbed me with a gun!" pointing to the defendant who was in a car. Police found a BB gun under the seat of the defendant’s car, which had Virginia tags. The commissioner held the defendant without bail because the defendant had a prior conviction for armed robbery (including a probation violation) and the law required no bail at this stage (and the rebuttable presumption that he was a threat to public safety.) He also had been convicted for assault and theft charges that had originally been charged as carjacking and handgun offenses. Judge Braverman changed the "no bail" status to $5,000 cash.

Defendant pointed a gun in the victims face demanding to know where "his" money was. When she denied knowledge of it he searched her in front of others in the house (including children,) slapped her, and said she better have it when he returned in 10 minutes. He was already out on a $10,000 bail for drug distribution and resisting arrest. Commissioner set "no bail," and the pretrial agent and prosecutor agreed. Judge Braverman lowered the bail to $2500 cash.

2006: Defendant was one of three co-defendants who robbed a store at gunpoint. The crime was captured on video and the defendant confessed. He was 17 at the time, on juvenile probation for stealing a car and was pending another car theft case. The commissioner set a $500,000 bail. Judge Braverman reduced the bail to $75,000 at 10%, meaning the defendant could put up $7,500 to go free.

Defendant fought with two women in the parking lot of a gas station. He then went into the gas station and stuck a gun into the chest of the attendant and said "Don’t say shit!" The commissioner set a $50,000 bail and the defense lawyer asked for $25,000. Judge Braverman did better than that, lowering it to $1500 cash. The inmates at bail review that day were thanking Judge Braverman and wishing him a Merry Christmas.

2007: A couple went into a car and the defendant walked in front of it shooting at them multiple times, leaving bullet holes in the metal, seats and glass. He was on probation for drug dealing with a pending warrant for violating probation, had a pending attempted drug dealing case, and was on juvenile parole for drug-dealing. The defendant was not represented at the bail review, but Judge Braverman wanted to know why it took the police two months to charge the defendant. The prosecutor replied that since the victims reported it promptly, it must be how long it took them to identify the suspect. Judge Braverman decided that meant it must not be a very strong case. He said he would "reluctantly" have to err on the side of caution and keep it no bail, but that the State had better be prepared with more facts when the defendant filed for another review of the bail.

Defendant arrived at his ex-girlfriend’s house drunk, yelling and screaming. He refused to leave, yelling that he had knives and was going to kill her. She barricaded herself in her bedroom and called 911. He kicked a big hole in her door but left when he heard her calling the police. Defendant had been convicted of assault and drug charges in the past, and also had been charged with violating an ex parte order (which are used to keep people from harassing and abusing others.) The commissioner set $100,000, and the prosecutor and pretrial agent concurred. Judge Braverman set $500 cash ("to cover the damage to the door") and told the defendant to stay away from the victim or he would hold him no bail. (This completely empty threat is a favorite of Judge Braverman’s when he lowers the bail for those charged with domestic violence.)

Defendant beat his girlfriend with a shovel and stomped on her ankle, resulting in her ankle being fractured in three places, two teeth knocked loose, and her body covered in bruises. Defendant was on parole for drug distribution and also had been convicted of attempted armed robbery, making this case a mandatory "no bail" case for the commissioner. Judge Braverman reduced the bail to $5,000 cash.

Defendant was a target of the police for drug dealing. After surveillance of his activities police got a search warrant and found a sawed-off rifle, a handgun, a scale with cocaine residue, and marijuana packaging material in his bedroom. He had paperwork in his name in that bedroom and a woman identifying herself as his mother said it was his bedroom. The commissioner set $300,000 bail. Judge Braverman lowered it to $50,000 at 10% meaning the defendant could put up $5,000 to get out.

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.