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Seemingly solid case evaporates; Dismissal: Two city men charged in a robbery go free after their trial is repeatedly postponed by Circuit Court judges.

THE BALTIMORE SUN

They stormed through the Super Pride on East Northern Parkway, waving a pistol and ordering terrified cashiers to empty their registers. They forced a family from their car at gunpoint. Then, they barged into a rowhouse, punching a mentally disabled man in the face before making off with his mother's Mercury Cougar.

After police arrested the two suspects several blocks away that April night in 1996, the case appeared to be picture-perfect for prosecutors. The men were carrying nearly $2,000 from the robbery. Witnesses identified the pair from photo lineups. One of the suspects even confessed, detectives say.

But three months ago, a judge quietly dismissed the armed robbery and carjacking charges in the case, ruling that prosecutors took too long to bring Christopher Wills and Kevin Cox to trial and held a critical court hearing without them.

As a result, Wills and Cox went free.

The case is not the first casualty of procedural mistakes at the Baltimore Circuit Court. But the dismissal is particularly troubling because court records show that prosecutors and judges knew for nearly a year that Wills was demanding his right to a "speedy trial" - and no one seemed to be listening.

Inside of seven months, Wills stood next to prosecutors and before two judges at least four times, pleading for a trial.

"I am asking you today, please, may I have a trial?" Wills asked Circuit Judge Joseph P. McCurdy Jr. on June 18, 1997, more than a year after his arrest. "That's my constitutional right, and I've asserted that right. I haven't been laying back on the balls of my hands, just spinning the wheels of justice. I've been demanding this."

McCurdy's reply: Case postponed because no judges were available to take the trial.

The victims of the brief but violent crime spree were the last to learn what happened to the case. No one from the state's attorney's office ever told them that the charges had been dismissed.

James Cook, whose family was forced from their car at gunpoint, said his wife took off from work four times to testify in court. Each time, he said, the trial was postponed.

"So they're running around scot-free in the streets?" Cook asked in a recent interview, adding that one of the suspects "could have shot both of us [and] my kids."

The city's clogged and chaotic court system has recently come under attack because of repeated trial delays and other missteps, prompting the dismissal of serious charges and the release of defendants who spent little or no time behind bars for their crimes.

Last month, a judge dismissed murder charges against four suspects. In December, a murder suspect whose case had been postponed 17 times pleaded guilty to reduced charges and was freed after police misplaced evidence in the case. That same month, a sex crime conviction was erased by an appeals court because the man's trial had been delayed nine times over 16 months.

Under state and federal law, defendants are entitled to be tried within 180 days of theirarraignment, or the charges can be dismissed. But facing an out-of-control court docket, judges, prosecutors and defense attorneys in Baltimore have repeatedly postponed cases beyond the deadline, court files show.

Judges can postpone trials for "good cause." But in Baltimore, "good cause" has come to mean practically any cause.

Baltimore State's Attorney Patricia C. Jessamy said her prosecutors' hands were tied in the Wills and Cox case because judges were not always available to preside over the trial.

"We were going under the assumption that if there was no court available, we could not try a case, OK?" Baltimore's top prosecutor said defiantly last night after attending a community event. "What am I going to do? Make the [judges] give us a court?"

But Jessamy acknowledged that the dismissal of the charges did not prompt her to change the way her office handles cases.

"I guess I did not," she said. "I guess I made a mistake, huh?"

During the past two weeks, Jessamy declined repeated requests for an interview about the case. Her spokeswoman, E. Francine Stokes, said: "The record can speak for itself."

The record shows that:

Prosecutors and judges did little to take the case before a jury quickly - even though they knew that Wills was demanding a speedy trial and that his case was past the 180-day deadline.

Prosecutors also never told Wills about a critical postponement hearing. The hearing was held without Wills or Cox being present, resulting in a delay that would lead to the collapse of the case.

The case was postponed at least twice because judges planned to take off from work on days when the trial was assigned to them. Court supervisors knew at least two weeks in advance of the scheduling conflicts, but the trial was not immediately assigned to a different judge, leading to more critical delays.

'This is a robbery'

The case began to unfold on Saturday, April 20, 1996, when two men entered the Super Pride market on East Northern Parkway near Loch Raven Boulevard at 7 p.m. According to police reports, witness interviews and a confession that Wills gave to detectives, one of the two men pressed a pistol against the back of a security guard, Shawn Simpson, and handed him a note.

"This is a robbery," it said. "Do not act stupid, and I won't shoot."

One of the two men went to the courtesy office, pulling the phone receiver off its hook and stuffing cash into a garbage bag. The other man forced Simpson to a check-out register and ordered a cashier to hand over the money from the till.

"He said he'd kill me if I didn't cooperate," Simpson said. "I told him, 'Brother, I got my little son - I want to see my son grow up. I don't want to die."'

Supermarket manager Steve Rose ran from the store and called 911. Sensing trouble, the two men fled the Super Pride with the garbage bag full of cash and ran down Loch Raven Boulevard into the Ramblewood neighborhood of northeast Baltimore.

When police cruisers pulled up to the supermarket, the manager pointed toward the two men racing down the street. As the officers gave chase, the men tried to figure a way out.

James Cook and his wife, Karen, were planning to attend a birthday party at her sister's house on Glenkirk Road. They pulled their 1995 Hyundai to the curb. After their three children stepped from the car, two men ran up. One of them pointed a pistol at Karen Cook's head, demanding her car keys.

Karen Cook stepped from the car, unintentionally taking the keys from the ignition.

"All of us got out and started running up the hill," she said.

The two men ran from the Hyundai toward Leith Walk, a quiet street lined with tidy, red-brick rowhouses on one side, an elementary school on the other. Mark Griffin, a former private detective who lives on the street, was in his back yard, pruning his tomato plants. He looked up to see two men running near his home, carrying a garbage bag.

Griffin signaled to his neighbor, George Peoples. He was playing basketball with his boy and a neighbor's son. The neighbors watched as the men scaled a fence and made their way toward Lucy Randolph's house. She was cleaning her gold 1984 Mercury Cougar and had just taken some belongings to her basement.

The men ran up to Randolph's home. Her son, Thomas Green, who is mentally disabled, was standing in the doorway. As the two men pushed him into the house, he shouted for help.

"I don't know these guys," Green called out to Griffin.

Once inside, one of the men punched Green in the face. They took the keys to the Cougar from the top of a television and ran to the car. Griffin and Peoples tried to tackle the men before they climbed inside.

Police cruisers were everywhere. A helicopter hovered overhead. The two men drove toward Loch Raven Boulevard. One cruiser blocked its path. The Cougar careered across the median and ended up on the lawn of Immanuel Lutheran Church.

The men began to run. Officer Edward Averella said one of the men came toward him near Good Samaritan Hospital on Woodbourne Avenue and appeared to be reaching toward his waistband. Knowing that at least one of the men was armed, Averella pulled out his Glock 9 mm pistol and fired, striking a suspect in the chest.

Police arrested Wills, 32, and Cox, 27, charging them with armed robbery, carjacking, assault and weapons violations. Both men had been paroled from prison months earlier.

With Wills and Cox in custody, the victims of the April 1996 crime spree agreed to review photo lineups and formally identified Wills and Cox for police. They also agreed to testify against them - though they were frightened for their safety and the safety of their families.

"I went down to the courthouse every time they asked," Randolph said.

But the victims could never predict what would happen during the next 19 months.

First postponement

Cox and Wills - who has several aliases, including David Whitfield - were arraigned on July 10, 1996. They pleaded not guilty, and their trial was set for Oct. 18. The prosecutor and Cox's attorney realized that the trial was assigned to Judge John Carroll Byrnes, who had to be out of town that day.

So prosecutor Randi Lifson and assistant public defender Matthew Spencer, who represented Cox, planned to delay the trial at an Oct. 9 hearing in postponement court. Judge David B. Mitchell was presiding over the court that day, but Lifson and Spencer never showed up for the hearing.

"Nobody responds," Judge Mitchell said, calling out the case. "Nobody's here."

The next day, Mitchell held the hearing. Spencer wasn't there, but Lifson was. Mitchell grilled the prosecutor, asking her why she hadn't been in court the previous day. Lifson said she was busy. Also, she had had communication problems with Spencer.

Mitchell was miffed.

"It seems more often than not the lawyers act like the [postponement] court is the Dew Drop Inn," the judge said to Lifson. "It seems as if folks come when they want to come, and if they don't want to come today, they'll come tomorrow. And if they don't want to come tomorrow, they'll come the day after."

There was another misstep that day.

Lifson thought defense attorney Curtis Anderson was representing Wills. She called him and left a message at his office about the postponement hearing. But Lifson was mistaken. Anderson was not Wills' lawyer. Anderson did represent Wills at two early hearings, but he was never retained to handle the trial.

The result: No one told Wills, and he was not brought from prison for the hearing.

Mitchell asked Lifson where the defendants were.

"They are both detained, your honor," she replied.

Mitchell announced a new trial date - Jan. 7, 1997. It was the first postponement in the case, pushing the trial one day past the 180-day deadline for a speedy trial.

The mistakes made that October would lay the groundwork for the collapse of the case.

More delays

After the holidays, the case against Wills and Cox came back to the courthouse for the scheduled Jan. 7, 1997, trial. But Judge John Carroll Byrnes was too busy with other cases.

So the case had to be postponed again.

Wills appeared before the chief of criminal cases, Judge McCurdy, who was responsible for granting or denying postponement requests. Lifson, the prosecutor, and Spencer, Cox's lawyer, asked the judge to delay the trial until March 13, 1997.

Wills was furious.

"What cause are you finding for the postponement?" he asked.

"Well, number one, you don't have an attorney," McCurdy replied.

He told Wills to hire one, or one would be appointed for him.

"I don't want that to be a reason for a postponement, your honor," said Wills, who had become an unofficial spokesman for Cox and the defense team. "I am prepared to go to trial immediately, and I demand a speedy trial. I have been incarcerated since April 1996. I am asking for a speedy trial."

Concerned that the case could be in peril, McCurdy fast-tracked the trial, placing it on the "move list," designed to put cases ready for juries in front of the first available judge.

"Now, I am going to have to put the case on the move list, because the defendants are demanding their speedy trial rights,," McCurdy said.

But Lifson asked the judge to wait a week. She was planning to be on vacation.

"Your honor," Wills interrupted, "vacation is not good cause" to postpone the trial.

"It certainly is," the judge snapped back. "It certainly is a good cause."

Lifson won the postponement, and the case was placed on the move list a week later. But it quickly came off the list, because Spencer, Cox's attorney, was busy handling arraignments for the public defender's office.

Wills and Cox received their third trial date: April 17, 1997 - three months past the speedy-trial deadline.

Dismissal denied

Wills and Cox stayed behind bars that spring - a place both had been before. The men had long arrest records. Wills served six years in prison for armed robbery and was paroled six months before the Super Pride robbery. Cox served nearly five years for burglary and was paroled five months before the hold-up.

When the Super Pride case came back to court in April 1997, the players had changed. There was a new prosecutor, Jan Alexander, and Wills had a defense attorney, Thomas McNicholas.

Three days before the April trial was to start, Alexander went to McCurdy's courtroom. The prosecutor said the clerk's office had scheduled the case before Judge Mable E. Houze Hubbard on a day when she was supposed to be attending a training seminar.

"All right, I find good cause for the postponement request," McCurdy said on April 14, 1997.

The judge announced a fourth trial date: June 18, 1997 - pushing the case five months past the speedy-trial deadline.

Frustrated, Wills asked Hubbard a month before the newest court date to dismiss the charges because his right to a speedy trial had been denied. She denied his request.

When the June 18 trial date arrived, Hubbard was too busy to take the case against Wills and Cox. Instead of standing trial, Wills stood before McCurdy - again.

"I have not waived my [speedy-trial rights]," Wills told the judge. "[Prosecutors] know this, and they still have not cooperated in 180 days. No one has tried to comply. No one has done anything, your honor."

McCurdy said he had no choice.

"There are no courts available here today," he told Wills. "Every single court, every single judge who is sitting today in this court, is doing a trial. So, I have no place to send you."

"So is this an official postponement?" Wills asked.

McCurdy said it was. But he said Hubbard indicated that she could take the case on July 7, 1997 - the fifth trial date, pushing the case six months past the speedy-trial deadline.

Wills went back to jail, unable to pay his $250,000 bail.

'I don't need my lawyer'

When July 7 arrived, Hubbard was busy again. Wills was brought before McCurdy for yet another postponement hearing.

Asked if he had any questions, Wills told the judge he didn't know where to start.

"I find it very, very hard to understand how come it's July the 7th and there is still not a courtroom available," Wills said. "I don't know any other way to say this other than, you know, I did everything I could. I even begged you last time not to grant a fifth postponement, and I'm sure this will be the sixth postponement, and none of them I have consented to."

McCurdy tried to explain.

"Not only do we not have a courtroom today, we don't have a prosecutor, and we don't have your lawyer," the judge said.

"I don't need my lawyer, your honor," Wills said. "I have already waived that right to an attorney. There is already a waiver in my file, and I have said that many times before you."

McCurdy, who did not have the court file in front of him, said his hands were tied.

"All right, I find good cause for the postponement request, and the new trial date is September 16th," the judge said. "Thank you very much."

It was the sixth trial date, forcing the case eight months beyond the speedy-trial date.

Wills shook his head in disbelief as he was led back to jail in handcuffs.

A month later, on Aug. 7, 1997, the case was back in court. But it wasn't for a trial. It was for another postponement hearing, held in advance of the Sept. 16 trial. The case was assigned to Judge John N. Prevas, but he had planned to take that day off to celebrate his 50th birthday.

Alexander, the prosecutor, tried to get the case assigned to a different judge so the trial could proceed. But he was told no other judges were available. So Alexander took the case to postponement court.

Judge Thomas J.S. Waxter Jr. was presiding over the court that day. He picked up the postponement forms and asked Alexander for some advice.

"I just sign them?" the judge asked.

"Well," the prosecutor said, "if you do decide to postpone "

Alexander reminded Waxter that he needed to find "good cause" to postpone the trial.

"If counsel have already agreed, right? Both counsel?" Waxter asked.

"Yes," Alexander said.

"All right," the judge said.

Waxter announced the seventh trial date in the case - Dec. 2, 1997, 11 months past the speedy-trial deadline.

It would be the last postponement.

Charges are dropped

Wills asked again that the charges be dismissed. He said that he was not present for the key October 1996 hearing and that his right to a speedy trial had been violated. On Nov. 5, 1997, Prevas, the judge who couldn't take the case in September because of his 50th birthday, held a hearing to consider Wills' request.

"Was the defendant present, and was the defendant heard with respect to this postponement?" Prevas asked Alexander, the prosecutor.

"I have no personal knowledge of that date, your honor. I was not involved in this case until after March of 1997," Alexander said.

"I'm assuming that he was not present, and that he did not consent to this postponement, and I'm going to dismiss his indictment," Prevas said.

With that, the judge dropped the robbery, carjacking, assault and weapons charges. Wills and Cox were released.

Stung by the ruling, prosecutors appealed. Maryland's Court of Special Appeals sent the case back to Prevas on June 12, 1998, ordering him to conduct an evidentiary hearing to fully explore what happened during that October 1996 postponement hearing.

The evidentiary hearing took place on Nov. 12, 1998. Defense attorney Jeffrey Kinstler argued the case for Wills. He told Prevas that his client would have objected to the delay - if only he had the chance.

"This defendant was prepared to proceed on his own," Kinstler argued. "This defendant was not going to agree to another postponement."

Kinstler then questioned Lifson, the first prosecutor in the case. She recounted her story about how she thought defense attorney Anderson was representing Wills, and how she left a message with his office, informing him of the postponement hearing. He never called her back.

She assumed that she had the right attorney and that he would tell Wills about the hearing.

"So you never spoke to Mr. Anderson?" Kinstler asked her.

"That's correct," Lifson replied.

Prevas began to question the prosecutor.

"It never dawned on you that the defendant might have some feelings about this [postponement?]" the judge asked Lifson.

"Well, no, it didn't, your honor," she said. "I didn't think about that."

"Wouldn't it have been more important to talk to Mr. [Wills] himself if you didn't know who his counsel was?" Prevas asked.

"All I can indicate to the court is, I believe I did the steps I needed to do to have this postponement occur," Lifson said.

Alexander, the prosecutor who took over the case from Lifson, asked the judge to uphold the charges against Wills and Cox, arguing that prosecutors did not violate the defendants' rights. He said the real issue was there were no judges available to preside over the trial.

"This is no different than if there were a snow day, or an electrical storm, or whatever," Alexander said. "The courts close for different reasons. If a case cannot proceed, it can't proceed, no matter what a defendant might say, judge. They might object. They might not like sitting over there in jail.

"But they can't do anything about it."

Prevas disagreed.

By "cavalierly" seeking the postponement without a word from Wills, prosecutors deprived him of his right to attend a critical hearing, the judge said. If the October 1996 trial date didn't work, he said, it should have been rescheduled within the 180-day deadline.

"The defendant was ultimately denied a Sixth Amendment speedy trial because of all the postponements," Prevas ruled. "The defendant was denied a trial date within [180 days] because of [the October 1996] hearing, at which the defendant was not allowed to participate."

Prevas dismissed the case for good. The state's attorney's office did not appeal.

Victims troubled

With the case over, Wills and Cox could not be reached, and key figures declined to talk about what happened. In recent weeks, Alexander and Lifson, the prosecutors, referred questions to their boss, Jessamy.

She said last night that her prosecutors often don't put cases on the move list - to fast-track trials - because it means their witnesses must be ready to be called to court on an hour's notice.

But she bristled when asked if her prosecutors could have done more to bring the case to trial. Asked if she questioned Lifson, the first prosecutor in the case, about why she agreed to a trial date beyond the 180-day deadline, Jessamy said, "I did not. I did not. Because I guess I am an incompetent prosecutor. I am a human being, OK?"

Spencer, Cox's attorney, did not return calls seeking comment about why he was not at the critical hearing.

Judge Mitchell, who presided over the October 1996 hearing, said he did not recall why he approved the postponement - which set the trial one day past the deadline. Lifson also agreed to the new trial date.

"I will never be able to re-create that in my mind," he said.

Robert Ignatowski, whose office schedules criminal cases, said judges must request time off four months in advance because trials are scheduled ahead of time. In this case, he said, three judges failed to meet the deadline.

Byrnes said he had a "family" matter and requested leave two weeks before the October 1996 trial, resulting in one postponement. Hubbard requested leave to attend a training seminar a month before the April 1997 trial, resulting in another delay.

Prevas requested leave more than three months before the September 1997 trial. At the time, no cases were scheduled to go before him. But the Wills and Cox trial was nevertheless assigned to his courtroom.

Ignatowski acknowledged that human error may be to blame. Error "has to be expected when you are dealing with this kind of volume," he said.

When judges ask to be off work, court supervisors try to assign their cases to different judges, said McCurdy, who oversaw the criminal docket. But that plan clearly did not work in this case, and the trial was not immediately assigned to another judge. That left prosecutors scrambling to postpone the case days before the trial.

McCurdy said he postponed the Wills and Cox trial at least once because he was concerned that Wills hadn't officially waived his right to an attorney. Wills' attorney, Kinstler, said his client wanted to waive that right early in the case.

But no judge asked Wills if he wanted to go through the formal waiver process.

McCurdy also said he tried to schedule a trial date that would stick. After placing it on the move list the first time, he said, he considered placing it there again. But the fast-track docket does not ensure that a case will be promptly heard.

McCurdy said he did the best he could.

"I guess it seems like no one listened, but I did listen to him," McCurdy said. "But I'm not here to be the advocate for the state or the advocate for the defense, and as hard as this must sound, I'm not an advocate for the victim. I have sympathy for these people, but that's not my role.

"My role is to be an independent adjudicator."

For the victims, the explanations are troubling.

"The system is not what it should be," said Lucy Randolph, whose Cougar was stolen and whose son was punched by the suspects that night nearly three years ago. "It's not protecting the innocent.

"The criminals get the better end, and the victims get the worst end."

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