Workload gets heavier for prosecutors

The Baltimore Sun

Sitting behind her desk in the basement of this city courthouse, prosecutor Jessica Paugh all but disappears among the accordion folders and manila files piled on her office chairs, strewn about her desk and stacked all over the floor.

Paugh usually has about 60 open gun and nonfatal shooting cases. On this day, moments after a judge handed down a 30-year prison sentence to a man she prosecuted for attempted murder, she's about to present two indictments to the grand jury before hustling back to her office to prepare for two interviews with shooting victims and two trials slated to start the next day.

All this after spending eight hours on a Saturday trying to catch up. "I always feel like I'm a day late and a dollar short," she says.

The workload isn't likely to slow for Paugh and the other prosecutors in the Baltimore Firearms Investigation Violence Enforcement unit, which is having its busiest year since it was created a decade ago.

The "FIVE unit," a group of 15 assistant state's attorneys who work in Courthouse East, prosecutes nonfatal shootings and gun crimes, making it a crucial player in Baltimore's efforts to stem the tide of violence.

In a city that is on an annual pace of at least 300 homicides - for the first time since the 1990s - nonfatal shootings are rising even faster. They have jumped 35 percent, to nearly 380 by the end of June.

As the head of the unit, Douglas Ludwig, says, such shootings "are homicides, but for the grace of God and good medical treatment. And that's how we treat them in court."

In fact, defendants who escape conviction here sometimes find themselves involved in Baltimore homicides as either suspects or victims, say police and prosecutors.

Between the increase in nonfatal shootings and Mayor Sheila Dixon's efforts to take illegal guns off the streets, the unit's workload is exploding. "It's up, way up, and we all feel it," Ludwig says.

They have already taken more than 105 cases to trial this year, bearing down quickly on last year's annual total of 132. And everyone in the office acknowledges that the strain forces tough choices between pursuing cases to trial or settling for pleas with lesser punishments.

Prosecutors are juggling trials that start one right after another - Paugh recently had four trials in three weeks - and, in some cases, are trying to predict the future.

Last week, for example, a defendant suddenly decided to plead guilty in a case that Assistant State's Attorney Robin Wherley expected to go to trial and last for several days. The plea meant that another trial could start immediately, but Wherley hadn't called that set of witnesses to court. The judge refused to delay the case, so Wherley says she had little choice but to drop it.

She'll fill out paperwork explaining why she dropped the case and pass it along to Ludwig. The FIVE unit began in 1997 with federal grant money and then shifted to about $2 million in state grant funding that requires quarterly progress reports that fill dozens of thick, three-ring binders in Ludwig's office.

Last year, FIVE unit prosecutors dropped charges in about one-third of their 711 Circuit Court cases. Another third ended with guilty pleas. Some cases were indicted federally.

Most of the rest went to trial in Circuit Court - and 65 percent of those trials ended in juries or judges acquitting defendants.

"Even though their conviction rate isn't as high as other units, they do an extraordinary job," says State's Attorney Patricia C. Jessamy.

Though prosecutors in all parts of Jessamy's office are constantly busy, she says, few face as many complex cases as those in the FIVE unit.

These prosecutors dive into their cases early, even before an arrest is made - only homicides receive the same intense involvement. The same prosecutor stays with a case from the first bail review through trial and sentencing.

Prior to 1997, nonfatal shootings and gun charges were handled by general felony prosecutors who didn't get the cases until shortly before trial.

In those days, says Ludwig, a prosecutor for more than 20 years and a member of FIVE since its inception, about 75 percent of the cases were dropped or placed on the inactive docket. The drop rate fell to 19 percent in FIVE's first year, he says.

Defense attorneys once openly laughed at the FIVE prosecutors for pursuing so many cases and for seeking decades of prison time in nonfatal shootings, Ludwig says. But some of the first FIVE unit convictions resulted in judges slapping down tough sentences: life, 50 years, 65 years.

"A collective gasp went out from the defense bar," Ludwig says. "Then all of the sudden they were willing to plead. It wasn't a joke anymore."

Today, FIVE prosecutors attribute their win-loss rate to problems typical in Baltimore courtrooms. Victims and witnesses change their stories when they testify; witnesses go missing - either because of intimidation or their own hostility toward the criminal justice system; and jurors are skeptical of the police.

It's not uncommon for both defendants and victims to come to court in handcuffs. Other times, victims don't show up at all.

These are what the prosecutors call "Baltimore cases" - ones where nothing seems to go right.

In one of Assistant State's Attorney Roya Hanna's recent cases, the shooting victim couldn't come to court because he was incarcerated in Virginia.

She presented the case anyway in Judge John N. Prevas' courtroom. The defendant was a convicted felon, by law prohibited from having a handgun. By his own admission (he says it was self-defense), he shot a man in the hand and then held onto the gun for five days.

Legally speaking, it should have been an easy conviction, Hanna says. But city jurors see loopholes, and, in this case, the imprisoned victim and a volatile eyewitness, who mothered children by both the defendant and the victim, probably didn't help matters. The defendant was acquitted.

Shortly after hearing the verdict, Hanna returns to the basement office, leans against her supervisor's doorway and lets out a long sigh.

Three seasoned supervisors, William F. Cecil, Andrea Mason and Tonya Lapolla, assign new cases and advise the assistant state's attorneys under them, some of whom, like Hanna, are only a few years into their careers. Half of the young prosecutors have been in the FIVE unit for less than a year; many go on to handle homicides.

Hanna's supervisor, Cecil, is the no-nonsense kind of prosecutor who would - and he has done this - ask a judge to order that a police detective too busy to come to court be brought there in handcuffs. He asks Hanna what she learned from the case and urges her not to dwell on the loss.

She couldn't dwell if she wanted to: She is scheduled to start a new trial later that day.

There's no easy way to cut this unit's workload. Adding more prosecutors would have a ripple effect on the rest of the court system, prompting a need for more public defenders, more courtrooms, more judges.

The prosecutors could push for more guilty pleas. They took 231 last year. But the only way to nail down more plea agreements is to offer less prison time - something that might not sit well with residents. And negotiation isn't a possibility in the "five-withouts," the felon-in-possession-of-handgun cases that carry a mandatory sentence of five years without parole.

City prosecutors would welcome more cases being turned over to the Maryland U.S. attorney's office.

As she is preparing for a case scheduled for trial soon, Paugh says excitedly, "I got a FLIP letter in this one." She is referring to a "federal letter of intent to prosecute," which she'll show to the defendant. He might be more likely to take a guilty plea in Baltimore Circuit Court to avoid federal prosecution and the serious prison time and intense probation that accompany it.

Last year, federal prosecutors sent 36 such letters in city cases, prompting 27 defendants to plead guilty in Circuit Court to handgun charges with the five-year-no-parole sentence.

But with just six federal judges to hear cases from Baltimore and much of the rest of the state, it is impractical to think that federal prosecutors could take more than a small percentage of the cases.

Still, Maryland U.S. Attorney Rod J. Rosenstein says he will do what he can. Project Exile cases - city gun cases that are indicted federally - are spread among eight violent crime prosecutors, and "I'm personally handling two Exile cases," Rosenstein says.

The FIVE unit has assigned a prosecutor to the federal system to handle Exile cases. Soon, a second state's attorney will become a special assistant U.S. attorney, Jessamy and Rosenstein say.

"[Prosecutors] are working as hard as we can to make the community safer," Jessamy says. "We're not magicians."

Problems with victims and witnesses mean that prosecutors are thrilled when police bring them physical evidence.

Mason sits up straight in her chair and smiles one recent afternoon as Detective William E. Nichols explains that officers had found a bike they think was used by two suspects in a recent Northern District shooting.

"Prints?" she asks eagerly.

"No prints, but we got some DNA swabs," Nichols replies.

"That may be even better," she says, signing off on the arrest warrants for Nichols.

This kind of warrant authorization in serious crimes has been the procedure since 2003, when the Police Department and the state's attorney's office reached an agreement just as the General Assembly was poised to pass a law shifting charging authority from police to prosecutors.

After Nichols leaves, Mason hands the file to prosecutor David Grzechowiak. "It's a good case, David," she promises him.

He smiles. "That's how they all start. Six months later, it'll be, 'This is David Grzechowiak for the state. I'd like to enter a nolle prosse,'" he says, using the legal terminology for dropping a case, also known as nolle prosequi.

A dry sense of humor pervades the office. It's a coping mechanism, the prosecutors say, to help them deal with victims who don't want the guys who shot them to go to jail and defendants who have been acquitted two, three, four times in a row.

They like to tell stories about memorable cases they've had over the years.

There was Mason's "see no evil, hear no evil, speak no evil" trio from her time as a homicide prosecutor. Unbelievably, in three separate successive trials, she had a blind eyewitness, a deaf witness and a witness whose lower face was ripped apart by a bullet, leaving her unable to speak.

They marvel at the superhuman ability of their victims to survive - like a 19-year-old in one of Grzechowiak's cases who was shot seven times in the back and left for dead.

The motives for these shootings are usually gang rivalry, drug turf wars or perceived disrespect, the prosecutors say, but sometimes the "reason" can be a real head-scratcher. Ludwig recalls a man who shot a friend over an argument about boxer Mike Tyson's greatness, and a man who shot a friend in the neck over an argument about overeating McDonald's french fries.

Ludwig has a case now that's sure to become an office tale: the two Morgan State University students who were shot in the leg. They told police they had been robbed. Then they said it was fraternity hazing. Then they said they were trying to avoid being deployed to Iraq.

They were charged with handgun violations and making a false police report.

On this day, with a court date coming up, Ludwig asks the case detective, Albert Marcus, to take him to the shooting scene. "Seeing something with my own eyes," Ludwig says, "helps me to be able to explain it to a jury."

At the scene of the crime, an alley off Perring Parkway, Ludwig points to a nearby Morgan State dormitory and posits a theory: "I betcha one of these guys lived in this dorm right here. They were probably sitting around one night, and they come up with this stupid idea to shoot each other."

He and Marcus talk about the police hours wasted on trying to track down a fictitious robber and then trying to sort out what really happened.

Back at the FIVE office, Cecil is returning from a sentencing hearing in a shooting case that hit him hard, despite the 16 years on the job and a prior career as an air traffic controller.

He's having a cup of coffee with the victims, John and Shelby Killian, who own Keeper's Market, a convenience store in Belair-Edison. One of two men convicted of shooting John Killian 11 times while robbing the store was just sentenced to life with all but 40 years suspended - an outcome that the Killians say helps them feel a little closure.

A third defendant was acquitted last month, after a trial in which a co-defendant who promised to testify refused to swear to tell the truth. Cecil was devastated by the verdict, but the Killians told him that they were grateful for his work and that he did the best he could.

They gave him a book, After Dachau, by Daniel Quinn. Cecil read it and recommends it whenever prosecutors are down about losing a case or struggling to keep one together. He suggested it to Hanna that day in the doorway.

"The windup of it all," he tells her, "is that no one cares."

julie.bykowicz@baltsun.com

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