Court chiefs were told of trial-delay dangers; Warning: They knew in 1995 that postponements were clogging the Baltimore system. But the problem wasn't solved, and some violent criminals have been freed.

THE BALTIMORE SUN

When a Baltimore judge dismissed murder charges two weeks ago against four men who had waited for years for their trial to begin, those who manage the city's clogged court system seemed stunned it had come to this.

They shouldn't have been.

Judges, prosecutors, public defenders, defense attorneys and police who play key roles in the city's never-ending criminal cases have been warned since 1995 of the trouble they could be in. But they failed to do anything meaningful to stop the delays and make sure that suspects would not go free because of them.

For years, the ballooning caseload balanced precariously on what lawyers and judges thought was a rock-solid foundation: the notion that when judges decided to postpone cases they would never be questioned. Postponements are granted for virtually every excuse imaginable: vacations for judges and lawyers, maternity leaves, training courses and judges who are constantly busy.

In one pending, 2-year-old murder case, the trial was postponed because one judge was occupied and another was on vacation. And the prosecutor? She was "tired."

But with one court decision last month, the rules suddenly changed. The state's Court of Special Appeals erased a sex-crime conviction, finding the case's nine postponements over 16 months were excessive. The case against the four men suspected of murdering Shawn Suggs, 21, was summarily dismissed Jan. 5.

The two cases were not the first casualties. A series of cases examined by The Sun show that others involving violent crimes have been dismissed or disposed of with the defendants serving little, if any, prison time. Others could follow.

Among the cases:

A judge in September dismissed attempted first-degree murder and armed robbery charges against Michael Ruben, accused of robbing the owners of a liquor store. Police mistakenly destroyed evidence during a series of delays in the case.

Ronald A. Alexander, charged with three holdups, went free after a guilty plea netted a sentence of roughly the time he had served. He had waited more than two years for a trial. One of his victims was a U.S. Drug Enforcement Administration agent, who became infuriated by at least 12 delays in the case.

The trial of William Flowers, charged with shooting a man to death, was postponed 17 times over three years. Flowers pleaded guilty to second-degree murder last week, then went free on the time he had served because police lost a critical file during the delays.

Kenneth Robinson, charged with first-degree murder, has waited more than two years for a trial. His case has been postponed nine times, he has not waived his right to a speedy trial, and he continues to sit in jail. His next scheduled trial date is Feb. 1.

Those in charge of Baltimore's courts blame the problems on a surge in drug cases and a lack of resources -- problems in most big city courthouses. They also cite the small pool of defense lawyers and prosecutors, who on any given day are scheduled to be in different courtrooms.

But Timothy Corley, the DEA agent robbed by Alexander, finds the excuses meaningless. He said the delays send a troubling message to victims of violent crimes -- even to those who understand the difficulties of modern-day law enforcement.

"If I was a civilian, I wouldn't testify because of the ineptitude of the system down there," Corley said. "People just can't be jerked around like that. You keep throwing in these delays, and people say: 'Forget about it.' "

Baltimore State's Attorney Patricia C. Jessamy, who is appealing the dismissal of the Suggs and Ruben cases, bristled last week at the notion that her office had not done all it could to prevent delays. She said her prosecutors, particularly those in an understaffed homicide unit, work "damn hard" and are "demoralized" by problems that they feel are beyond their control.

She wants money to hire more prosecutors and staffers.

Mayor Kurt L. Schmoke has said the city can't afford to do that, and has asked that the state take over the troubled system. After the charges were dropped against the four murder suspects two weeks ago, Gov. Parris N. Glendening renewed a proposed state takeover.

"Something must be done now," he said, calling the situation "intolerable."

Jessamy acknowledged that the latest court decisions mean she must start doing things differently -- even if that means pushing back drug prosecutions and weathering further criticism from police.

"The only thing we can do is really and truly end up trying all the violent crime cases," she said.

Baltimore Circuit Judge David B. Mitchell, who recently started supervising the court's criminal docket, said he will crack down on postponements.

He said he wants first to resolve cases with "double-digit" postponements. "Try it, dismiss it, plead it, resolve it," Mitchell said. "That's what I expect to see on all those trial dates."

Maryland's version of a speedy-trial deadline was established 20 years ago in a case called State vs. Hicks. The Court of Appeals, the state's highest court, said criminal cases should be brought to trial within 180 days of arraignment -- unless defendants waived the right, or judges found "good cause" because of "extraordinary" reasons.

But many years and cases later, the ruling is losing its meaning in Baltimore.

Judges and prosecutors have not set up a system to track cases that exceed the 180-day deadline. Many times, it's impossible to determine which defendants waived the right because court records are contradictory and waiver forms are not filled out.

"A lot of people look at the form and say 'Another piece of paper,' but look at how important that is," said Robert Ignatowski, who assigns court cases.

Despite the dismissals, the state's attorney's office does not keep track of cases it prosecutes that have been tossed out because defendants weren't tried fast enough.

To many in Baltimore, the Hicks decision has become a "joke."

"What happened was the courts got used to the routine," said Thomas Saunders, the defense lawyer who argued the Hicks case. "The exceptions began to eat the rule. What I know is that over the last several years, there's been a complete deterioration."

Baltimore Circuit Judge Joseph P. McCurdy Jr., who supervised the criminal docket for five years until last month, thought the Hicks ruling was on his side. The Court of Appeals said in one case that judges could have "wide discretion" when they grant postponements.

"The judge who is hearing the postponement request is not supposed to look at a case where there are 13 postponements and say, 'Enough is enough,' " McCurdy said. "A judge is supposed to say, 'Is there good cause for the postponement?' "

But the appellate judges said in last month's ruling that postponements cannot go on forever, especially when they are caused by crowded courts. They noted that of the nine delays in the 1997 Baltimore conviction of James T. Brown Jr. for a third-degree sex offense, seven came after the Hicks deadline. They set Brown free. Jessamy is appealing.

The case against Michael Ruben illustrates another pitfall of postponements.

Ruben, 34, was charged with the Oct. 12, 1997, robbery of Howell's liquor store, a small family business in a tough Baltimore neighborhood where sheets of bulletproof glass separate Kwang and Okson Lee from their customers.

After closing, the Korean couple walked to their car on Woodland Avenue. Suddenly, a man appeared with a black 16-gauge shotgun and demanded money. When Okson Lee, who speaks little English, failed to hand over cash, the man opened fire, missing her. In the end, he got $3.

Later that night, police spotted Ruben, who fit the description of the suspect. He carried a black 16-gauge shotgun.

The case seemed solid. The Lees identified Ruben. A video camera captured him in the store the day before, wearing the same clothes the robber wore the night of the robbery. Police recovered spent shotgun shells from the scene, strong evidence that could connect Ruben to the crime.

But soon, a series of delays began to cripple the case.

Between April and August 1998, Ruben's trial was postponed at least five times.

Excuses began to pile up in the court file.

Ruben's defense attorney was on maternity leave. The prosecutor needed to take a trial course. Ruben was not brought over from the jail. And when the prosecutor and the defense attorney were finally ready, the judge couldn't take the case.

Circuit Judge Gary Strausberg was scheduled Courts to take a vacation in Australia. He said last week that he notified the court assignment office four months in advance of the trip. The judge said he didn't know why he still was given the case. Ruben continued to sit behind bars, waiting for a trial.

On Sept. 1, 1998, Ruben's attorney asked Circuit Judge John N. Prevas to dismiss the case. Not only had his client's right to a speedy trial been violated, Gregory Martin said, but while everyone was waiting, the investigating officer had mistakenly ordered critical evidence -- the spent shotgun shells -- destroyed.

Prevas was incredulous and dismissed the case. He was bothered by the delays. More troublesome, he said, was the destruction of evidence, which he called "unforgivable."

It's been four months since Prevas' ruling -- and no one ever bothered to tell the Lees. They learned about the dismissal from a reporter, who called them last week. "I'm amazed they lost the shells," Kwang Lee said.

For those in charge of the city's courts, the perils of postponements are nothing new. They've known about them for years.

A 1995 prosecutors' memo predicted that the drug cases generated by Police Commissioner Thomas C. Frazier's intensified raids would delay other cases, perhaps resulting in dismissals. Jessamy responded by tightening requirements for felony drug cases, a move police criticized.

In 1997, Ignatowski, the court assignment officer, alerted McCurdy, the judge who supervised criminal courts at the time, about a list of old cases. Several involved violent crimes. Ignatowski noted that the defendants had been waiting more than two years for their trials.

In December 1997, McCurdy wrote to Kaplan, outlining the history of each case. Kaplan responded to McCurdy: Deal with the cases.

Within a month, two of the defendants pleaded guilty and received stiff prison terms. But two others were released after guilty pleas gave them sentences that amounted roughly to the time they had served.

Ronald A. Alexander, 26, is one of those defendants. He was charged with committing a three-day spree of armed robberies and a carjacking in Baltimore in 1995 -- nine months after he was paroled from a previous robbery sentence.

His last victim was Corley, the DEA agent, who was visiting from New Jersey. He said Alexander pressed a gun against his head as he and his wife were walking near Little Italy. Corley's wife flagged down a police cruiser, and officers arrested Alexander in a nearby apartment.

Corley identified him as the gunman, and police found Corley's wallet where the officer saw Alexander toss it. Police found the car of another one of his victims and lifted Alexander's fingerprints from inside.

"It was a slam-dunk case," Corley said.

But that was before the case was delayed at least 12 times between September 1995 and October 1997. A defense attorney was tied up in another trial. The prosecutor was "unavailable." A judge was presiding over another trial. A police officer couldn't appear in court.

For Alexander's victims, the experience was infuriating. They showed up to testify, only to wonder why everyone else in the courthouse seemed to be begging off the case.

"We bent over backwards for them," Corley said. "I started to wonder to myself, 'How many of these excuses are really legitimate?' "

Shortly after Alexander's name appeared on the McCurdy memo, prosecutors dropped charges of carjacking and robbery in two of the holdups, and Alexander pleaded guilty to the Corley robbery. In return, McCurdy suspended 18 years of a potential 20-year prison sentence and gave Alexander five years' probation. He was back on the street.

Another defendant mentioned in the 1997 memo is William Flowers.

Flowers was accused of shooting Charles B. Commander, 24, six times at a Baltimore pool hall in a dispute over a woman. He was arrested in December 1995. His trial was first delayed in May 1996 because the prosecutor was handling three homicide cases scheduled for that week.

The postponements began to pile up. The court was too busy. The prosecutor or police officer were on leave, stuck in another trial or on vacation. Flowers' attorney was handling another case. A new attorney was hired. Prosecutors found a key witness and needed more time to prepare.

Prosecutors believed they didn't have to worry because Flowers had waived his Hicks right to have a trial within 180 days, said Jessamy, the state's attorney.

But last week -- after 17 postponements -- police and prosecutors said in court that a critical case file was missing.

That permitted Flowers to strike a deal that freed him from jail the next morning with a 23-year suspended prison sentence. He was granted credit for time served while waiting for a trial that never took place.

Kaplan, the city's top judge, said he didn't have the "slightest idea" why Flowers wasn't brought to trial after his case was flagged for delays. "I can't tell you," he said. "I am technically responsible for anything that goes on in the company, but I have vice presidents to run the different divisions."

The victim's uncle, Eugene Ball, marched into the prosecutor's office the day after Flowers was released. He said that he accepts their explanations, but is deeply disappointed.

"There is no way it could be good justice when you have a man who is 24 years old with a 5-year-old son who is in Woodlawn Cemetery," Ball said. "What if this happens again in the future? That's ridiculous."

At the beginning of 1998, while Flowers' case was still waiting to be heard, the Baltimore City Detention Center compiled a list of 150 people who had been waiting a year or longer for their trials.

Days afterward, prosecutors dropped charges against one of the defendants, a suspected rapist who had waited two years in jail, because the victim could not be found.

Prompted by angry state lawmakers, the city's judges asked federal consultants to review the problems in Baltimore. But even as the judges waited for the consultants' report, they didn't apply their own research to stop the chronic delays.

A court supervisor was told to generate and regularly update reports for judges and prosecutors that tracked the number of postponements and the status of the cases. But they barely looked at them.

McCurdy, the judge then in charge of criminal courts, said he used the information to identify cases with delay problems and arrange to have them scheduled for trials. But after a while, he said he no longer found the reports "relevant."

McCurdy's boss, Kaplan, said he didn't even read the reports. Prosecutors should know what cases are in peril, he said.

"I didn't ignore it," the top judge said. "I didn't see it. I'm sure it wasn't ignored by the people who were supposedly looking at it."

The Flowers case was cited in those reports. So was the case of Kenneth Robinson, 23, who has been waiting in jail for his murder trial to start for more than two years.

Robinson is charged with first-degree murder in the September 1996 slaying of Johnny Hester, 23, outside a Baltimore nightclub. But court records show that prosecutors believe he is part of a gang whose members have been charged with five murders. Prosecutors want to keep the murder cases together to aid in plea-bargaining and trial strategy.

That has meant a long wait for Robinson, while otheralleged gang members have pleaded guilty or been convicted in separate murders. His case has been postponed nine times, and he has never waived his right to have a trial within 180 days of arraignment.

Deputy State's Attorney Haven H. Kodeck said it is not unusual to keep different murder cases together if there is a "common" element -- in this case, the believed relationship between the men.

But Robinson's attorney, Michael D. Montemarano, is hoping a judge will dismiss the case because it has gone on too long.

"[Prosecutors] have a right to try them in any order," he said. "But pushing it down the road repeatedly is just ridiculous."

Sun staff writer Edward Lee contributed to this article.

Pub Date: 1/17/99

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