A 'back door' into prison

The Baltimore Sun

No need to explain the relief on Elijah Snow's face in September when a jury acquitted him of carrying a deadly weapon - a kitchen knife - through downtown Baltimore. A guilty verdict would have landed the twice-convicted armed carjacker back in prison. Now he appeared to be home free.

That may explain his confused expression when he stood in another city courtroom in November, listening as another judge sent him off to prison on the basis of the very same evidence that had failed to convince the jury two months earlier.

"I was found not guilty," Snow complained to Circuit Judge John Miller. "I don't know what's going on."

It may have seemed to Snow a case of double jeopardy - trying him twice for the same crime. But it wasn't.

The evidence that wasn't sufficient to convict him on the deadly-weapon charge was enough, in Miller's mind, to conclude that he had violated probation on his earlier prison sentence for carjacking. So even though he beat the weapons charge, the effect was the same: He was going to do time.

Increasingly - even in cases when Baltimore prosecutors have lost at trial or dropped charges - they are sending ex-convicts back to prison by using evidence of the new crimes in probation-violation hearings. This week, four more cases are scheduled for such hearings in city courtrooms.

Prosecutors say the practice is a way to get particularly violent offenders off the streets. Defense lawyers counter that authorities are really finagling a way to put someone behind bars when a jury has refused to do so.

"It's patently unfair, and it screams injustice," said Margaret Mead, a Baltimore-area defense attorney for 17 years. "They're basically sneaking people into jail through the back door."

The practice is controversial in part because it is far easier for a prosecutor to win a conviction on probation violation than a conviction on new criminal charges. The standard of proof is lower, and violation cases are decided by judges rather than more unpredictable city juries that are often skeptical of police evidence.

Despite protests by defense attorneys, the practice has stood up to challenge. In 1992, the Maryland Court of Appeals ruled in a Baltimore drug case that a conviction on a new crime is not necessary in order to find an ex-convict in violation of probation. High courts in other states - including Illinois and Pennsylvania - have also recently upheld the practice.

About 14,000 people are on probation in Baltimore. Although some conditions vary from person to person, probationers must observe a few steadfast rules, including the all-purpose Rule 4: "Obey all laws."

Enough people are accused of violating their probation to fill 570 days of court time a year. Baltimore residents on probation racked up 2,121 Rule 4 violations between July 1, 2006, and June 30, 2007.

About two years ago, with homicides and nonfatal shootings on the rise, prosecutors from Baltimore State's Attorney Patricia C. Jessamy office began to look at Violation of Probation (VOP) hearings as a way to get dangerous people off the streets even when prosecutions on new charges failed. Thus was born the "collateral unit," a team of three prosecutors dedicated to probation violations.

Most of their time is spent pursuing technical probation infractions, such as not getting a job or moving without telling one's agent. Sometimes after a person is convicted of a new crime, the VOP prosecutors seek probation violations to extend the time in prison. But they also go after those who, like Snow, elude new prosecutions.

Sterling Clifford, a spokesman for the mayor's office and the Police Department, said police are very much in favor of the new focus, particularly when it comes to violent repeat offenders.

"We're not looking to harass anyone on probation, but if you can get them on a violation, you do," he said. He likened it to the way federal authorities finally put Al Capone away. Not for the murders everyone suspected him of ordering, but for tax evasion.

"It's not exactly a new concept," said Clifford, "seeking alternative routes to hold someone accountable."

From the point of view of law enforcement, there's often a bonus: Through violation hearings, it's possible for defendants to receive far longer sentences than they would have received had they been convicted on new charges.

That's because judges often give "suspended sentences" - for example, 30 years, with all but 15 suspended - that saddle probationers with significant prison time if they are found in violation.

When handing down a sentence, a judge also determines how long an offender will be on probation - up to five years - once released from prison. If the offender breaks the rules during that period of probation, a judge can order him or her to serve the rest of the suspended prison sentence.

That was the case for Bernard Pratt, who was brought to trial on drug charges in 2005.

Eleven of the 12 jurors who heard Pratt's drug case thought he was not guilty. Police officers said they saw Pratt, then 25 years old, throw a bag of 12 jumbo crack cocaine vials into a yard as he ran from them after a traffic stop. It was a misdemeanor case, with a maximum possible sentence of four years. When the jury failed to reach a unanimous verdict, the prosecutor decided to drop the charges.

But when he was arrested in the drug case, Pratt was on probation for a murder conviction for beating a man to death. He had served about 10 years of a life sentence. The sentence had been imposed with all but 15 years suspended, meaning that, once released, he could be made to serve the remainder of the sentence - the rest of his life - if he broke the rules during his five-year probation.

After the hung jury in Pratt's drug case, prosecutors decided to pursue a probation violation, prompting a second trip to court for the drug arrest.

They were helped enormously by the lower standard of proof in VOP cases.

Rather than the standard of proof being "beyond a reasonable doubt," probation violation hearings simply require "preponderance of the evidence," which means more likely than not.

And there are other benefits for prosecutors. The rules of evidence are much more lax. There's no Fourth Amendment protection against illegal searches and seizures, and many forms of hearsay are allowed. On that lower standard of proof, Judge John C. Themelis convicted Pratt of violating probation.

"I believe the essence in this case is, I think it's more likely than not that he threw ... a bag containing capsules," he said as he made his ruling.

Themelis sentenced Pratt to life, with all but 10 years suspended. He noted an irony: "He's getting 2 1/2 times what he would have gotten had he been convicted for that dope."

"How is that fair?" asked Mead after hearing about Pratt's case. "What if he didn't do it, like the jury thought?"

She recalled a client of hers, Kevin Bridgeforth, who encountered a similar situation.

A convicted armed robber in Baltimore County, Bridgeforth was charged two years ago in the city as a felon in possession of a handgun.

The city case dissolved after a judge determined that police had illegally searched his car, but county prosecutors were not hindered by the bad search at the VOP hearing. The judge sent him to prison for five years.

Prosecutors in the city's collateral unit say they are sparing in their use of VOP against those who beat new criminal charges. That may be why, according to collateral unit team captain Mark Floersheimer, "most defense attorneys don't even realize we can legally do this."

That probably explains why Deborah Spector, the attorney who represented Elijah Snow at his criminal trial, appeared just as confused as her client at the probation violation hearing.

"It almost feels like jury nullification," she told Miller. The judge was not impressed, reminding Spector of the Court of Appeals ruling.

Spector tried one more approach: "Just because they can doesn't mean they should."

Miller didn't agree. He found Snow, 28, in violation of his probation and sentenced him to 12 years, with all but two suspended. Had the jury convicted him in September of carrying a deadly weapon, he would have faced a sentence of no more than three years on that charge.

Floersheimer, the prosecutor in the case, later said that Snow's violent criminal history made him exactly the sort the collateral unit was created to pursue. In 1999, Snow and an accomplice had carjacked two people at gunpoint and robbed them.

"We're not trying to bang everybody," Jessamy said. "We're just trying to preserve public safety by getting violent offenders off our streets by using whatever tools we have available to us. We're not violating anybody's rights. Justice will prevail."

This week, prosecutors say, they want to seek justice in the case of Charles Carroll.

Convicted of murder when he was a teenager, Carroll spent about 10 years in prison. When he got out, he became a private school teacher in the city. But in 2005, three girls at the school accused him of sexual assault - in one case rape.

He stood trial this summer on the rape charge, a case that lacked physical evidence and that came down to "he-said, she-said." He was acquitted. Prosecutors last month dropped the remaining two cases.

But they're still pursuing jail time.

At the VOP hearing Tuesday, prosecutors plan to reuse the evidence from the rape case and the two sexual-assault cases.

Carroll could be sentenced to as much as 15 years in prison.

julie.bykowicz@baltsun.com

Violation of probation

In some cases, Baltimore prosecutors have used probation violation to secure prison time:

Aldrich Hunter, 43

Original crime: Convicted in 1997 of armed carjacking and sentenced to 20 years, with 8 years suspended.

New case: Charged in January 2006 in another carjacking.

Outcome: Traumatized by the crime, the victim moved out of state and refused to cooperate in the case, prosecutors said. They dropped the carjacking charge but pursued a probation violation. In September, he was convicted of the violation and sentenced to six years.

Zarzine Wardlaw, 36

Original crime: Convicted in the late 1980s of attempted murder and armed robbery, he spent 17 years in prison and had 10 years suspended.

New case: Accused in July 2006 of raping a young relative.

Outcome: Jurors acquitted him of the most serious charges or rape and child abuse, convicting him instead of two counts of second-degree assault. He was sentenced to 20 years. Prosecutors pursued a probation violation, obtaining another decade of prison time.

Michelle Dickens, 47

Original crime: Convicted Jan. 31, 2007, of drug possession and sentenced to a two-year suspended sentence.

New case: Five days after that plea deal, police arrested her after she crashed her bicycle and they found a loaded .38-caliber handgun nearby.

Outcome: Prosecutors dropped the handgun charge, saying they could not prove the handgun was hers. Prosecutors got 15 months of prison time by taking the case as a violation of probation.

Bernard Pratt, 28

Original crime: Convicted of first-degree murder in 1997 and sentenced to life, with all but 15 years suspended.

New case: Accused of misdemeanor crack cocaine possession in March 2005, after being out of prison about a year.

Outcome: Jurors acquitted him of the drug charge, but a judge convicted him of violating his probation and sentenced him to life, suspending all but 10 years.

Elijah Snow, 28

Original crime: Convicted in 1999 of two carjackings and sentenced to 25 years, with all but 10 suspended.

New case: Accused in November 2006 of carrying a concealed deadly weapon, a kitchen knife.

Outcome: Jurors acquitted him of the deadly-weapon charge in September, but a judge convicted him in November of violating his probation and sentenced him to 12 years, suspending all but two years.

This week:

Lamar Wallace, 27

Original crime: Convicted in 1999 of attempted first-degree murder and sentenced to 25 years, with 15 suspended.

New case: Accused in October 2006 of drug dealing.

Outcome: After numerous postponements, a judge refused to grant another one, and the prosecutor dropped charges in November.

Prosecutors will proceed with a probation violation hearing scheduled tomorrow.

Charles Carroll, 30

Original crime: Convicted in 1995 of second-degree murder and sentenced to 30 years, with 15 suspended.

New case: Accused in 2005 of raping a student at the private school where he taught and sexually assaulting two others.

Outcome: Jurors acquitted him of the rape charge in August, and prosecutors dropped the other two cases in November, saying they were weaker.

Prosecutors will proceed with a probation violation hearing scheduled for Tuesday.

Wayne Fenwick, 34

Original crime: Convicted of drug dealing in November 2005 and sentenced to a 10-year suspended sentence.

New case: Arrested March 2006 on a charge of possession with intent to distribute heroin and cocaine. Arrested June 14 on a charge of dealing marijuana.

Outcome: Prosecutors dropped the new cases in October of this year after a judge refused to grant another in a string of postponements, this time because a chemist was unavailable.

Prosecutors will proceed with a probation violation hearing scheduled for Tuesday.

Bruce Smith, 28

Original crime: Convicted in 2005 of second-degree murder and sentenced to 30 years, with all but time served suspended.

New case: Accused in April of using a handgun and drug dealing.

Outcome: Prosecutors will proceed with a probation violation hearing scheduled for Friday, even though the drug case is not scheduled to be heard until January.

A headline on Page 1A of yesterday's editions of The Sun erroneously referrred to defendants being sentenced for parole violations. The article instead involved violations of probation.THE SUN REGRETS THE ERROR
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