Experienced Baltimore defense attorneys are increasingly requesting jury trials in minor cases, flooding the city's already overwhelmed courts and frequently securing more lenient plea deals from prosecutors.
Between 35 and 65 misdemeanor cases are transferred daily from District Court to Circuit Court at the request of defendants or their attorneys. The requests consume three of the 11 courtrooms reserved for all criminal jury trials in the city, forcing delays - sometimes for months - in more serious cases.
The three judges handling the Circuit Court's misdemeanor docket can't try more than one case per day, leading prosecutors to dismiss, deactivate or plea bargain out more than 99 percent of the cases and hold on to a scant few for trial.
Defense attorneys can reject plea deals in District Court, knowing their clients will most likely get a better offer in Circuit Court, or get off entirely after victims and witnesses tire of postponements and venue changes and don't appear for trial.
"You come down to Circuit Court and you're either going to get that deal, or a better deal," said Ahmet Hisim, a defense attorney and former homicide prosecutor. "You're also more likely to have the case dismissed. Or you get a jury trial, and that's a great risk for prosecutors in Baltimore City because [jurors are] likely to believe the cops aren't telling the truth. What's the incentive to plead in District Court?" The glut of drug possession, misdemeanor assault and theft cases being resolved in courtrooms designed to hear rapes, murders and robberies has been a long-standing problem in Baltimore and one that lacks easy solutions.
Under Maryland law, any person charged with a crime where the penalty could exceed 90 days in jail has the right to request a jury trial, and when a defendant does, the case is scheduled for trial the next day in Circuit Court. District Court, the state's entry-level court, doesn't hold jury trials.
The number of jury trial requests spiked from 7,388 in fiscal 2007 to 8,470 in fiscal 2008, even as the overall caseload decreased. Now, more than one in every 10 criminal cases is a misdemeanor moved to the higher court on a jury trial request.
"The perception is that if you go forward in District Court you're likely going to go to jail," said Circuit Judge John P. Miller, head of the city's Criminal Justice Coordinating Council. "Up here in Circuit Court, you may or may not go to jail, and that's what's running the show right now. Somehow or another, we have to change that perception."
Judge Keith Mathews, chief judge for the District Court in Baltimore, attributes the increase to former Mayor Martin O'Malley's "zero-tolerance" arrest policies, which resulted in more defendants being put on probation. That means more is at stake when they get arrested again, even on a minor charge.
"The attorneys always advise their clients, 'If you're on probation, always ask for a jury trial,' " Mathews said. "Not that they end up getting one when they get to Circuit Court. A lot of times Circuit Court will try to work something out so they won't even get a conviction. They'll [inactivate] the case or require community service."
As the volume grows in Circuit Court, justice for misdemeanors becomes quicker and dirtier, with attorneys making judgments with less than a day's preparation and often without ever meeting, much less interviewing, victims or witnesses. Public defenders sometimes have to meet their clients for the first time when they arrive in court for trial.
On a Monday last month, Assistant State's Attorney Brendan Inscho had a 3-foot stack of 33 case folders piled on his office chair that he stayed late on a Friday and came into work on a Sunday to review.
"When you have 33 cases scheduled for trial that day, you can't be ready," he said.
Assistant State's Attorney Jennifer Nowak was in court last month prosecuting a misdemeanor assault case against an 18-year-old woman with no criminal record. The teen had participated in a fight in which the victim was beaten and cut in the head with a knife.
Circuit Judge Wanda Heard asked Nowak how severe the cut was. Did it require stitches? If so, how many? Nowak knew the victim had received stitches, but she didn't know how many.
She had just been assigned the case on Friday afternoon and tried to reach the victim by phone over the weekend. The victim didn't show up for court, and her mother and sister arrived too late.
Heard unilaterally reduced Nowak's offer from six months in jail and two years probation to probation before judgment. Heard attached a number of conditions - including a curfew and community service - but if the young woman is successful, she will not go to jail and will not have a criminal record.
"It's insane over here, absolutely insane," Heard told a clerk as they tried to divert some cases to another judge. "I have 40 defendants today. Have you ever heard of 40 defendants on a misdemeanor docket?"
Interviews with judges, defense attorneys and prosecutors reveal that the primary motivator for jury trial requests is the expectation of a more lenient sentence.
A common offer for marijuana possession in District Court is probation, while prosecutors in Circuit Court typically offer to drop a case if the defendant agrees to do community service. Possession of more dangerous drugs, such as cocaine and heroin, usually generates a plea offer in District Court of some jail time, often six months. The offer in Circuit Court often drops to time served and probation.
There are exceptions to the rule. In cases where there are victims - most often assaults - prosecutors often offer tougher plea deals in Circuit Court.
Second only to the expectation of a lighter sentence, the policies of individual judges drive the move of cases to Circuit Court. Some District Court judges are unwilling to promise a certain sentence in exchange for a guilty plea, but defense attorneys can avoid them by requesting a jury trial.
"There are a lot of state-oriented district judges," Hisim said. "I love them, but I wouldn't try a case in front of one of them. Why hurt my client?"
Assistant Public Defender Brenda Holley said that she has encountered clients - veterans of the city's criminal justice system - who can list which judges won't promise a sentence in exchange for a plea.
"They won't plea before those judges," Holley said. "That's why you'll often hear defendants in District Court say, 'I'm taking it downtown,' or 'Take it downtown.'"
State's Attorney Patricia C. Jessamy said that the court began "instant jury trials" - or scheduling cases coming up from District Court the next day - during the 1990s.
The new tactic cut the number of petty crimes clogging Circuit Courtrooms by more than half, Jessamy estimated. But during the last decade, the numbers have steadily climbed.
"We've tried a lot of things as these cases have continued to rise, and we need to go back to the table," she said.
The General Assembly attempted to alleviate the pressure in 2004, when it created a new crime category of "theft under $100" with a maximum penalty of 90 days in jail. The short sentence meant that people charged with this crime didn't have a right to a jury trial, and, therefore, their cases had to remain in lower courts.
Circuit Judge Emanuel Brown, a former district judge, said the same should be done for other petty crimes, but he declined to say which ones.
Paul O'Connor, who supervises prosecutors handling misdemeanor Circuit Court cases, said lowering penalties for possessing small quantities of marijuana to under 90 days in jail would reduce jury trial requests by 15 percent to 20 percent in Baltimore. But rural and suburban counties, which can manage their caseloads, have resisted legislative efforts to reduce marijuana possession penalties, he said.
In the 1980s, one district judge, Robert J. Gerstung, tried to bypass the legislature by promising not to send defendants to jail for more than 89 days on the condition that they wouldn't request a jury trial. In three opinions that decade, the Court of Appeals ruled the "Gerstung Rule" unconstitutional.
After legislative attempts to reverse the court failed, instant jury trials began.
But Mathews says that the solution is simple. Prosecutors know what their counterparts in District Court offered a defendant. Stick with that offer or increase it and the cases will stop coming, he said.
"When the case got to Circuit Court, if they didn't continue to give them better deals, this wouldn't happen," Mathews said. "I'm not saying, go up and punish you. But usually the deal offered in District Court is a good deal."