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For twins, jail has its accommodations; Repeated trial delays could be Bolners' path to lesser state terms

Identical twins James and Charles Bolner have spent four years in the Baltimore City Detention Center waiting for their trial on drug distribution charges - and they couldn't be more pleased.

They like the jail. They like being together. They also say prosecutors have ironclad cases against them, and the longer they stay in the jail, the shorter their eventual sentences will be in a harsher state prison.

And Baltimore's criminal justice system has willingly accommodated them. In the past four years, the courts have postponed their cases 13 times. That makes the brothers the longest-ever residents of that jail, an official there said.

Their cases illustrate the flip side of the city's clogged court system, where trial delays usually spur civil rights concerns. Defendants can benefit from delays, and those who want to put off their cases - when no one objects - can waylay a case for years in a system so backlogged that it will readily forgo swift justice.

"The criminal justice system is in such intensive care that the patients are able to control the system," said LaMont W. Flanagan, state commissioner of pretrial detention and services, which oversees the Baltimore detention center, now under federal orders to prevent overcrowding. "It's a burden to me because of the fact that I need beds."

No hard and fast rule dictates how many times a case can be delayed. Judges decide whether to grant trial postponements when lawyers request them or other circumstances arise. The driving principle is that the longer a case takes to come to trial, the weaker it becomes. Witnesses move. Memories fade.

"This is what you don't want to happen," said Colleen Danos, a case management expert with the National Center for State Courts in Williamsburg, Va. "It undermines the quality of justice."

The Bolner brothers, 40, who lived together in South Baltimore, were incarcerated in December 1994. They waived their right to be tried within six months or have the charges dropped more than three years ago. That means prosecutors and court officials face no real penalty if the cases drag on for years.

Baltimore Circuit Judge Joseph P. McCurdy, who signed off on all the Bolner postponements, acknowledged that the cases have been delayed for too long. But when a case does not present an emergency - such as the risk that

charges would be dropped or the involvement of a victim - it is bumped to the back of the line, he said.

"We don't have the luxury of saying, 'Now wait a minute, 13 postponements is too many. You have to try this case today,"' McCurdy said. "There is always another case that is crying out for resolution that we can try instead of this case."

The brothers are willing to plead guilty to their crimes, but they don't want to spend more than 10 years in prison, said their attorneys, James S. Salkin and Joanne M. Finegan.

Prosecutors say they want them imprisoned for at least 15 years.

The most serious charge they face - importing cocaine - carries a maximum penalty of 25 years, but that sentence could be doubled because the brothers are repeat offenders, prosecutors say.

So the Bolners happily wait at the East Baltimore jail through the trial postponements.

While they stay there, the brothers believe they are whittling away their future sentences. They say they are shaving more time off their terms with their cleaning jobs and good behavior credits than they could in the state prison, where they would be transferred after conviction.

Prison officials don't know if the brothers' calculations are right. While they can earn a maximum of 15 days off per month in the jail, they could earn as much, or more, in the state prison system. However, prison jobs - and thus, credits - can be harder to come by.

The average inmate earns less than 10 credits per month, said Leonard A. Sipes Jr., spokesman for the state Department of Public Safety and Correctional Services.

The Bolners think they have a good deal going.

"They know that they are going to [state prison] sooner or later, but they are in no hurry," said Salkin, Charles Bolner's attorney. "They asked me recently, 'Can't you postpone the case until March or April?"'

To be sure, the case has been complicated to manage. There are four defendants, two of whom were freed on bail. One lives in Pennsylvania. The other - who dutifully showed up for court appearances for a year - is now a fugitive believed to be in the Dominican Republic.

To bring the case to trial, the court has to coordinate with all the attorneys to be in the same room at the same time.

The defense has made all but two postponement requests because one of the attorneys could not attend. The prosecution re

quested one delay. Once the courts were closed because of a blizzard. In two of the delays, the courtroom was unavailable, court records show.

Salkin got the case postponed until Jan. 20 after he told the court last month that he was going on a "prepaid" vacation.

Finegan, James Bolner's attorney, said the brothers are not taking advantage of the system.

"It's nothing that the Bolners are controlling," Finegan said. "They are trying to make the best out of a bad situation."

Assistant State's Attorney Salvatore Fili said he has agreed to delays because the cases have hard evidence that will not fade.

He said tape recordings implicate the brothers. The brothers were targeted in a sting operation and sold a kilogram of cocaine to an undercover officer, court records say. Charles Bolner confessed, the records show.

"Whenever you have multiple defendants, you exponentially increase the possibility that something will go wrong that will necessitate a postponement," Fili said. "The tape recorder does not lose its memory."

Still, the wait has taken a toll. Since the case entered the system, most of the 10 main witnesses - all law enforcement personnel - have been transferred to other offices.

The reasons given for the postponement requests in Charles Bolner's case, which is identical to that of his brother, are: In May 1995, Salkin said he needed time to review evidence and that one of the defense attorneys had a conflict of interest. In September, one of the defense attorneys could not attend because a friend had died.

In January 1996, a blizzard closed the courts. That May, Salkin was involved in another trial and the courtroom was not available. In September 1996, one of the co-defendants needed an interpreter. In December, the prosecutor was in a training session.

In March 1997, Salkin was in another trial, the interpreter was ill and one of the co-defendants disappeared. That May, Salkin said he was going on a "prepaid" vacation. In August, the courtroom was not available, one of the defense attorneys was involved in another trial and Finegan had just been brought onto the case.

In January 1998, three of the defense attorneys were taking part in other trials. In April, two of the attorneys were participating in other trials. In August, one of the attorneys was in another trial. In December, Salkin told the court he would be on another "prepaid" vacation during the Jan. 5 trial date - a date he had known about for four months.

His office said this week that he is vacationing aboard a boat.

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