Several criminal justice experts are calling for Baltimore's judges to swiftly punish lawyers who violate laws on the disclosure of evidence after revelations that such problems are threatening justice in the city's courts.

For years, problems with evidence disclosure, known as discovery, have persisted in the city's courts. But judges have been loath to sanction prosecutors -- or defense attorneys -- when they fail to comply with law that sets strict timelines for turning over material.

"The court has to take the lead in each element of coordinated case management," said Jervis S. Finney, head of the Maryland Criminal Justice Administration Institute, which is studying how to reform Baltimore's courts. "The court is the only entity which can enforce its will."

The calls come in response to a two-part series in The Sun that detailed how evidence problems in the city courts have led to a wrongful conviction, trial delays and freedom for suspected criminals.

In one of the cases cited in the newspaper series, lawyers for four defendants charged with running drugs in a Southwest Baltimore neighborhood asked the prosecutor at least 13 times for evidence. Eight months after the arrests, the lawyers appeared before a circuit judge, complaining that they had not received any evidence in the cases. The judge simply noted the lack of evidence as a reason to postpone the case.

The prosecutor went unsanctioned and four months later still had not turned over the evidence. The case against the four was dismissed in February, infuriating neighbors concerned about the safety of their neighborhood.

The example illustrates what has emerged in recent years as the criminal caseload has skyrocketed: the piecemeal exchange of evidence, no consistent discovery policies and little-heeded deadlines.

'Accepting mediocrity'

"When I started practicing 25 years ago, the judges wouldn't tolerate it," said Jerome E. Deise Jr., a former public defender and now a professor at the University of Maryland Law School. "They are tolerating it. They are allowing it to happen. They are accepting mediocrity at best."

The court experts say that judges must hold lawyers accountable early on in the process so cases against criminal suspects aren't dismissed. Attorneys who violate the laws should be held in contempt of court, fined or, at the very least, sanctioned and reprimanded, they say. Punish the lawyers, they say, not the public.

Part of the problem has been that judges don't find out about discovery violations until it is too late to salvage the case, said John H. Lewin Jr., coordinator of a group seeking reform in the city courts. Requests for hearings on discovery disputes have gone unheeded until the day of trial, he said.

Lewin said he wants a judge appointed to oversee discovery disputes so that sanctions, if necessary, can be swiftly applied.

"Judges start doing that, and you will find that people will move heaven and earth to comply with discovery orders," said Lewin, who heads the Criminal Justice Coordinating Council, formed after charges against murder suspects were dismissed because of trial delays. "No professional person wants a judicial sanction on their record."

Judges bristle at the idea of fast and hard rules for punishing lawyers. Discovery issues are complicated, they say. Overburdened prosecutors can't always make deadlines. Some disputes are subjective: The prosecutor and the defense may have different definitions of "exculpatory" evidence, material that may show others committed the crime, in a case.

Discovery judge suggested

"What people want to see occur is a simplistic, immediate response to a complicated issue that requires judicial discretion and balancing," said Circuit Judge David B. Mitchell, in charge of the city's criminal docket. "I don't want to see judges stampeded into that process."

He said he and others are working on streamlining the discovery process, including considering the appointment of a discovery judge.

"The discovery issues, like every other issue, are being addressed and being resolved," Mitchell said.

By law, within 25 days after arraignment, prosecutors must disclose arrest warrants, eyewitness identifications and any evidence that may help the defense. The law also sets deadlines for additional disclosures.

The Sun's series detailed the case of Antoine Jerome Pettiford, who was wrongfully convicted because evidence implicating other suspects was withheld, and cases against seven other defendants in which criminal charges were dismissed because evidence was not turned over by prosecutors.

The series sparked immediate calls for reforms, which will likely be discussed at a July 28 meeting of the city's Criminal Justice Coordinating Council. They include appointing a judge to resolve disputes about the disclosure of evidence; instituting an open-file policy at the state's attorney's office so defense attorneys can easily obtain evidence, and holding pretrial conferences that will enable lawyers and judges to determine the status of evidence and cases.

Last week, Del. Peter Franchot, chair of a public safety subcommittee, threatened to withhold $500,000 in state funds from the office of Baltimore State's Attorney Patricia C. Jessamy until she solves evidence problems there. But technically he can't prevent her from receiving the money. Still, he plans to summon Jessamy and other representatives of criminal justice agencies to Annapolis for a hearing on discovery issues next month.

Deise, the law professor, said prosecutors should be doing their jobs without needing the threat of a court order or a fine.

"Lawyers know what their professional responsibilities are," Deise said. "They take an oath to uphold their responsibilities. They shouldn't need to have a judge to compel them to do what they are professionally obligated to do."

He added: "I don't know which is worse: being disingenuous or being dumb about it. The citizens deserve better. Ms. Jessamy should demand that her staff gives the citizens what they deserve, and if she doesn't, then the court should."

Pub Date: 7/18/99