Justice breakdown demands anger, action

THE BALTIMORE SUN

TWO YEARS AGO, in an editorial called "Getting Away with Murder," we urged Gov. Parris N. Glendening, Court of Appeals Chief Judge Robert M. Bell and then-Mayor Kurt L. Schmoke to lead corrective action in Baltimore's broken criminal justice system.

But our repeated calls for high-level intervention fell on deaf ears.

Those leaders shuffled their responsibility off to a Criminal Justice Coordinating Council that had no legal authority and was given no clear direction. The council tinkered around the edges of the problems, reducing backlogs at Baltimore Circuit Court and convincing the heads of the local criminal justice bureaucracies to settle some of their worst turf fights.

But the system itself is largely unchanged -- flawed because it is antiquated, underfunded and deluged by a constantly rising tide of cases. Criminals still walk because police and prosecutors can't build cases that persuade juries to convict. Add to that a lack of cooperation and no sense of common mission among individual players in the criminal justice system.

Some headway was achieved after the election of Martin O'Malley as mayor. Aggressive policing last year produced the first significant dip in the city's appalling murder rate since 1990.

Still, it's too easy to get away with murder in Baltimore City, to contribute to the mayhem in our streets without fear of punishment. And frustrations are running high.

Mayor O'Malley recently exhibited his anger in a profanity-laced tirade against State's Attorney Patricia C. Jessamy. "We have a prosecutor who is afraid," the mayor fumed. "Maybe she should get the hell out."

Ordinary citizens, too, are exasperated. They are upset about criminals. But they are also losing faith in the courts' ability to deliver justice -- and law enforcers' methods.

Baltimore juries have demonstrated their uneasiness by rejecting crucial prosecution evidence because it was not viewed as credible. Whenever suspects walk free, victims are overwhelmed with anger and some witnesses fear retaliation. Other witnesses protest innumerable postponements by not showing up or recanting.

As juries' antagonism toward officials has become more pronounced, some police officials and prosecutors have started to fight back. They break rules and skirt the law, hoping such deplorable tactics will enable them to win convictions.

Here are a few recent examples:

Officers changed reports and destroyed evidence in trying to bolster the case against an 18-year-old criminal who was charged with killing a police officer in a high-speed crash.

The tampering backfired. Jurors cited their mistrust of police after they acquitted the accused, who allegedly was fleeing a shooting scene, wearing body armor and found with a gun.

The state's attorney's refusal to divulge certain evidence to defense attorneys threatened to torpedo the prosecution of drug figures accused of slaying five women. The wrangling has sharpened years of allegations that prosecutors habitually conceal pertinent information from defense attorneys, hoping to gain an edge at trial.

Mayor O'Malley and Police Commissioner Edward T. Norris keep pressing for prosecution of an officer caught in an internal sting, even though much of the case may have collapsed.

These guerrilla tactics are an extreme expression of the sense of helplessness that is palpable among police officers, judges and prosecutors. Everyone recognizes the Baltimore City's criminal justice system is in deep trouble. But in the absence of leadership from Governor Glendening and Chief Judge Bell, no one knows how to repair it.

Additional money alone is not enough. An infusion of $1.2 million last year into the State's Attorney's Office heightened expectations that could not be met.

Quick fixes do not work, either. In fact, they may produce unanticipated consequences which further injure law-abiding citizens' sense of justice.

'Erectile Dysfunction' Court

A case in point is a reform experiment which was touted by Mayor O'Malley as an easy way to speed up justice in Baltimore's overburdened courts. The experiment has not only failed but it has caused new problems and tensions.

Mr. O'Malley got his revelation-like reform idea in 1996, while visiting New York as a member of the City Council. If Baltimore only created an arraignment court, 50 percent of misdemeanors could be shaken out within the first 24 hours after arrest, he promised.

After Mr. O'Malley was elected mayor, the new court became an early goal of his administration. It was such a no-brainer, the mayor proclaimed, that when Maryland's chief judge expressed skepticism, he scornfully sent a stick-figure drawing to him to show how simple the idea was.

Six months have now passed since the experimental Early Disposition Court was launched. It has flopped so badly that officials say its initials -- ED -- stand for "Erectile Dysfunction."

Mayor O'Malley puts the blame on State's Attorney Jessamy. "Her plea offers are too high on minor things," he contends.

Mr. O'Malley is totally wrong.

Ms. Jessamy's office is not at fault. In case after case, prosecutors are making ridiculously low penalty offers. Even so, most defendants keep rejecting guilty pleas that would blemish their record. Instead, they play the court game. They figure that delays will ultimately undo prosecution if they first have the case diverted to the District Court -- or if they request a jury trial in the Circuit Court.

A defendant's chances of beating the rap altogether -- without the liability of a criminal record entry -- are so good that an Early Disposition Court judge says: "As a criminal defendant, you have to be nuts to take an ED plea. Wait for a couple of weeks and chances are witnesses won't show up or officers won't."

This is a very realistic assessment. While no statistics are available on the number of cases expiring because of missing key witnesses, prosecutors last year had to dismiss 1,178 cases because charging police officers did not show up.

Here is what happened to 42 cases in the Eastside Early Disposition Court's hearing last Monday:

Ten defendants were told their misdemeanor cases had been dismissed. Some were incredulous about their unexpected luck. One man was so confused he stormed to the bench, seemingly hoping to make a guilty plea.

Eighteen other defendants rejected the prosecutors' plea offers, opting instead for a regular District Court hearing or for the possibility of a jury trial.

Nine defendants failed to appear. Bench warrants were issued for their arrest.

Only five defendants accepted the prosecutor's offer of guilty pleas. Three of them were given probation before judgment for crack or marijuana possession. A 67-year-old man got probation for having oral sex with a streetwalker in the parking lot of an East Baltimore funeral home.

The fifth defendant, an admitted long-time drug addict with an extensive prior record, received a suspended 60-day jail sentence.

At another ED court hearing that same day, prosecutors recommended probation before judgment for a woman who was seen selling heroin to more than a dozen people. Even so, her charge had been downgraded to only possession with intent to distribute.

She was willing to accept the prosecution's offer of probation. But the judge, noting the defendant was caught with 25 heroin capsules, said the offer was too lenient. The judge wanted to give her nine months in jail. The defendant rejected that. She asked for a postponement to the District Court.

She knows she will have a different judge and if the case is ever tried, witnesses may not show up.

Last month, 680 out of 1,246 Eastside ED court defendants rejected offers of guilty pleas in favor of gambling on postponements. Only 110 defendants accepted a negotiated plea.

Despite this failure to get rid of minor cases before they clog the dockets, the ED court has not been without some impact. The prosecutors' lowball plea offers, even when rejected, have caused a chain reaction. Misdemeanor sentences have become substantially lighter in both the District and Circuit courts, angering those who think crimes should not be without meaningful punishment.

Because of the lenient ED court plea offers, narcotics possession has effectively been decriminalized in Baltimore City. There has been no publicity about this. But virtually anyone can now get away with probation if convicted of drug offenses that are downgraded to possession.

Disconnected juries

The jury system is among the basic tenets of Anglo-Saxon jurisprudence. But as delivery of criminal justice in Baltimore becomes more and more erratic, juries are under attack as never before.

Potential jurors, who are culled from voter registration rolls and from among persons possessing drivers' licenses, are always asked whether they might be prejudiced because they -- or people close to them -- have been victimized by crime.

That's not the right question to ask in today's Baltimore.

Potential jurors should also be asked whether they -- or close friends or family members -- have had an unpleasant encounter with the police or the criminal justice machinery. Do they, for example, think they or someone they know were wrongfully charged in a case that resulted in dismissal in the increasingly impotent court system?

That relevant question is never asked.

Keystone Kops

When a fleeing sports utility vehicle rammed into Officer Kevon M. Gavin's police cruiser at 104 miles an hour and killed him, many Baltimoreans were shocked. If it wasn't murder, it certainly was vehicular manslaughter, they thought.

Last month, though, a jury acquitted 18-year-old budding career criminal Eric D. Stennett of all charges. Never mind that even the defense attorney implied to jurors his client was guilty of something. Never mind that the defendant had been wearing body armor and had a gun linked to a shooting that started the chase.

Instead, jurors focused on inconsistencies in the prosecutors' case. Jurors were appalled that police officers, hoping to strengthen evidence, had doctored original reports and that the wrecked patrol car, a key piece of evidence, had been destroyed by police.

Jurors were so mistrustful of the police and prosecutors that they even suspected the killed officer had been drinking. The autopsy showed a somewhat elevated blood alcohol level, a perfectly normal phenomenon as a body decomposes.

Baltimore City juries are notoriously unpredictable. They are particularly skeptical about police officers and their testimony.

Who can blame them?

Consider the way police handled another celebrated case, the one that triggered Mayor O'Malley's coarse outburst against State's Attorney Jessamy.

When police planted bogus crack on a bench in Druid Hill Park Sept. 4, it was to catch a dirty cop. They had one particular target in mind: Officer Brian Sewell, a six-year veteran.

Almost everything that can go wrong did go wrong with this sting. But because it was the signature operation of Commissioner Norris' new internal Integrity Unit, it was not called off.

Things got off to a bad start. Officers answering the 911 call reporting the suspected drugs could not find the glassine bag. After a second call was made, Officer Sewell was present but did not pick up the bogus crack. Another officer did. This so confused the investigators they realized only 10 days later that the bogus drugs were part of evidence Officer Sewell had presented against a burglary suspect he had arrested within 15 minutes of the sting. Since Officer Sewell swore he had seen the suspect place the glassine bag on the park bench, he was charged with lying.

More irregularities soon cropped up. It was discovered that police communications recordings of 911 and 311 calls lacked time stamps, making it impossible to prove the sequence of events.

The problems worsened after the sting squad's secret office was burglarized on Christmas Eve. One of the items taken was Officer Sewell's folder. After the burglary, the state's attorney's office was belatedly informed that in addition to 13 pictures originally presented as evidence up to 11 more pictures had existed.

The State's Attorney's Office was dealing with two thorny questions. Some of the evidence was missing. Prosecutors also realized the Police Department had violated fundamental professional trust by not initially revealing all the facts about evidence in the investigation. This led to a nagging question that still has not been answered: Why wasn't the sting videotaped, since that kind of surveillance is standard operating procedure in far less important investigations?

The burglary caused additional fallout. It was viewed as an inside job. The detectives involved in the Sewell case were among those suspected of involvement.

After State's Attorney Jessamy was confronted not only with missing evidence but the lack of credible witnesses, she decided not to prosecute. Mayor O'Malley was appalled and accused Ms. Jessamy of lacking "guts." That's about the nicest thing he said about her.

There is something terribly wrong when a criminal justice system is so dysfunctional that only guerrilla action brings results. But that seems to be happening here.

Consider the case of Maryland Public Defender Stephen E. Harris. He openly humiliated Public Safety Secretary Stuart O. Simms recently for the state's failure to handle bail review hearings in Baltimore in a constitutionally acceptable way.

After Mr. Harris sued Mr. Simms, the mortified Cabinet secretary accused the public defender of bad faith and breach of collegiality. But Mr. Harris' suit worked. The changes he had unsuccessfully sought through the voluntary Criminal Justice Coordinating Council suddenly became a top priority item and are being implemented.

Similarly, Mayor O'Malley resorted to profanities to show his unhappiness about Ms. Jessamy, the city's chief prosecutor. He decided niceties would not do the job. "You bet I'll launch my rockets again," he later declared defiantly.

Sociologists have all kinds of fancy words for this kind of behavior. An activist judge summarized those theories in plain language: "When people begin to lose faith, they start looking for alternative ways to achieve the result."

This kind of desperate Machiavellian move is not without dangers. When ends are deemed to justify the means, all kinds of questionable practices become tempting.

When Mayor O'Malley suggested that Ms. Jessamy deputize him to prosecute Officer Sewell, what was his message? Was it that the state's attorney was wrong or lacked courage in her decision not to prosecute? Or was the go-getting mayor in fact cynically implying that he could turn the traditional antagonism of Baltimore juries to his advantage and get an errant cop convicted on tainted evidence?

If the latter is the case, Mr. O'Malley, as a lawyer and former prosecutor, should be ashamed.

Neither police nor the prosecutors will regain their credibility as long as randomly selected Baltimoreans believe evidence is fabricated or produced in less than honest investigations.

Similarly, we don't quite understand Ms. Jessamy's battle-weary attempts to conceal pretrial evidence from defense attorneys, when her office's practices threatened to undo such a major case as the killing of five innocent East Baltimore women in a fight among drug figures.

A discovery court was specifically set up more than a year ago to settle such disputes. Nevertheless, pretrial feuds continue to imperil important cases. Ms. Jessamy must put an end to this dangerous gamesmanship.

It is understandable that city authorities feel helpless in dealing with a criminal justice environment where juries are hostile and cases often fall apart because witnesses disappear or are intimidated. However, the authorities' frustration is no justification for tactics that are so indecent that those tactics, and not the defendant's guilt or innocence, become the main focus of a trial.

City officials, from State's Attorney Jessamy and Commissioner Norris to Mayor O'Malley, can and must stop such warped practices.

In the larger criminal justice drama, though, they are only bit actors. Unless Governor Glendening, Chief Judge Bell and the General Assembly can be persuaded to rectify the dysfunctional criminal justice system, nothing will happen.

If the statewide officials believe only Baltimore is affected by these problems, they are wrong. Evidence increasingly shows criminal justice is falling apart in different ways in other parts of Maryland, as well.

Annapolis is the arena where all city officials must lobby harder. But how can anyone really expect any action from the Glendening administration when most of Baltimore City's own legislators don't demand the appalling criminal justice crisis be solved and when even the greatest tragedies and injustices do not outrage most Baltimoreans?

In the end, things will change only if all of us demand fundamental improvement, taking that on as our personal crusade.

We're asking readers to contact public officials who can make the difference. Tell them you're angry and want change. Send us copies of your messages and we'll print a selection on this page. Mail them to Outrage, c/o The Sun Editorial Page, P.O. Box 1377, Baltimore, MD 21278-001. Or you can e-mail us at letters@baltsun.com or send a fax to 410-332-6977.

Contacting key officials

Gov. Parris N. Glendening

State House

Annapolis, Md. 21401

Fax: 410-974-3275

e-mail: governor@gov.state.md.us

Chief Judge Robert M. Bell

634 Courthouse East

111 N. Calvert St.

Baltimore, Md. 21202

Fax: 410-347-3908

e-mail: robert.bell@courts.state.md.us

Mayor Martin O'Malley

City Hall 250

100 N. Holliday St.

Baltimore, Md. 21202

Fax: 410-576-9425

e-mail: mayor@baltimorecity.gov

Commissioner Edward T. Norris

691 E. Fayette St.

Baltimore, Md. 21202

Fax: 410-396-2023

e-mail: questions@baltimorepolice.org

State's Attorney Patricia C. Jessamy

The Mitchell Courthouse

100 N. Calvert St.

Baltimore, Md. 21202

Fax: 410-539-5215

e-mail: pjessamy@stattorney.org

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