In a packed Baltimore courtroom, Circuit Court Judge Charles J. Peters calls cases one by one, summoning prosecutors and defense attorneys to his bench. Under cover of a white noise machine, the lawyers are ready to deal.
The defendant in one case had been caught with a loaded .380 caliber handgun while smoking a marijuana blunt in an alley. Another was pulled over by officers who found an Uzi in the trunk. A third, a 17-year-old, bolted from a car and ran from police, who found a gun ditched nearby.
Prosecutors presented plea offers for each. Peters reduced the state’s offer in one deal, increased it in another, and approved a third unchanged.
The total jail time for the three cases, including time already served: 17 months.
Critics, including Police Commissioner
"At the end of the day, we don't impose sentences," State’s Attorney Marilyn Mosby, the city’s top prosecutor, said last year. "We can make a recommendation. But it's not on us."
Ninety-three percent of felony convictions in Baltimore are the result of plea deals — and some three-quarters of them are taken in front of Peters.
Peters, a 61-year-old former state and federal prosecutor, presides over the city’s “reception court.”
The venue was created a decade ago to centralize and expedite cases, freeing up other judges and courtrooms for trials. It’s the first and last stop for the bulk of the city’s cases.
In reception court, prosecutors and defense attorneys can present plea deals for Peters’ approval. When they aren’t in agreement, they can approach the bench, where Peters may propose a compromise. He can also balk, and increase what the state is looking for.
The process is not immediately transparent. Negotiations at the bench are not audible to the public. Prosecutors don’t include their proposed offers in court files. And judges have declined to respond to the critics’ complaints about their sentencing decisions. So The Baltimore Sun obtained audiotapes of entire days’ worth of proceedings and bench conferences from Peters’ courtroom.
A review of the tapes reveals the behind-the-scenes deliberations that go into plea deals.
In the cases reviewed by The Sun — not a scientifically representative sample — Peters most often accepted the state’s sentencing offer. When he reduced the state’s offer, it could be cut by months or years, with no objections by prosecutors. On rare occasions, he increased the sentence the state proposed.
The Sun listened to the entire docket from Peters’ courtroom on eight dates selected at random between March and August last year — a total of more than 250 cases. Fifty cases on those dates ended in plea agreements.
93 percent of felony convictions in Baltimore come through guilty pleas
Peters has been in charge of the criminal docket since January 2015. Since he took over, statistics show, reception court is increasingly the place where cases are brought to a conclusion. The proportion of active felony cases resolved there rose from an average of 19.6 percent per month in 2014 to 32 percent through July of this year.
When the sides are far apart, they can try their luck at trial. But most of the time, Peters told The Sun, they’re looking for a resolution.
“I think the parties are looking for some sort of middle ground where we can all come to some sort of conclusion,” he said. “We try to facilitate that.”
Administrative Judge W. Michel Pierson, who oversees Baltimore Circuit Court, agreed.
“We are providing a forum for people to get the cases resolved,” he said.
The State’s Attorney’s Office’s chief deputy, Michael Schatzow, says he doesn’t want judges to help his prosecutors cut deals.
“We’re interested in having a guilty plea on the terms we recommend,” Schatzow said. “That’s why we make that recommendation.”
City prosecutors do not track how often their sentences are undercut by judges. A spokeswoman said the office found it “difficult to agree” with The Sun’s observations about plea negotiations in reception court because they are not based on a statistically significant sample size.
The state’s highest court has been critical of judges involving themselves in plea negotiations. In a ruling last year, the Court of Special Appeals wrote that “it is the role of the state, not a trial court, to make a plea offer,” and trial judges “should refrain from directly making plea offers to defendants.”
Peters described the discussions at the bench as a “meeting of the minds.” He said the appellate court’s ruling applies most directly to judges who oversee trials — which he does not do.
On a typical day, dozens of defendants are scheduled to appear before Peters in his second-floor courtroom in the East Courthouse on Calvert Street. Those who are not in custody sit on the left side of the room. Those who have been held in custody are summoned and lined up on a bench.
For attorneys, reception court is the water cooler of the courthouse, as they pack the right side of the room and the jury box. The acoustics border on terrible. So many people come and go that the door never stops swinging.
Peters does not conduct trials, which in any event are rare in Baltimore Circuit Court: More than 1,800 cases in reception court last year ended in guilty pleas. Another 417 were resolved with pleas just before trial. Just 7 percent of felony convictions — 175 cases — were the result of a trial.
When a defendant appears before Peters, a postponement is the most frequent outcome. The judge often expresses exasperation as attorneys explain why their cases can’t proceed as planned.
“This is the worst reception court docket in my career,” he muttered to himself one day.
You [as a prosecutor] are definitely triaging.
Former prosecutor, who did not want to be identified out of concern for appearing to criticize a judge
Attorneys who appear frequently in Peters’ courtroom say the proceedings show the challenges confronting the city’s criminal justice system. Prosecutors and defense attorneys alike weigh the risk of taking a case to trial, where the quality of the police work is likely to come under heavy questioning before a skeptical jury, against a plea deal that brings a sure outcome, but likely will require concessions on both sides: the prosecutor settles for lighter sentences; the defendant agrees to be punished.
“You [as a prosecutor] are definitely triaging,” said one former prosecutor, who did not want to be identified out of concern for appearing to criticize a judge.
University of Baltimore law professor Steven P. Grossman, a former prosecutor in New York, called plea bargaining the “dirty underbelly of the criminal justice system.”
Grossman said defendants are often prodded into pleading guilty because they fear a judge is likely to hit them with a harsher sentence if they are convicted after a trial. But he said pleas are also a necessary function of the criminal justice system.
“For a plea bargain to take place, everybody’s got to agree,” he said. “Yet we still do it in 95 percent of the cases … because it works for everybody.” Grossman is the author of a forthcoming legal paper on plea bargain reform.
Peters and Pierson declined to discuss their roles in detail or to defend the judiciary. They said they wanted to avoid the appearance of engaging in politics in response to criticism.
Circuit Court judges are appointed by the governor. If they wish to remain on the bench, they must run for re-election. They campaign, raise money and advertise like candidates for other public offices. But they say professional rules prevent them from discussing cases in detail — their rulings, they say, speak for themselves.
Attorneys often negotiate a plea deal before entering the courtroom. Their interactions at the bench with Peters take minutes — or less. One veteran defense attorney said Peters allows a “20-second pitch” before reaching a conclusion.
In the case of a 17-year-old arrested with a gun, the state was seeking five years, with all but time served — about two months — suspended. That means the defendant would be released, but if he violated his probation, he could be sent to prison for up to four years and 10 months.
“Would you offer probation before judgment if he took the plea?” defense attorney Todd Oppenheim asked at the bench. Probation before judgment, or PBJ, means a period of probation that if completed successfully does not result in a criminal conviction.
“Nope,” Peters said flatly.
Oppenheim persisted. His client had been free since posting bail, he said, and was working at a pizza place. He contended that he was in a hack — an unlicensed taxi cab — when he was pulled over.
“He doesn’t want to go to trial. He’ll take the plea to limit his risk,” Oppenheim said. “He’s proven over the last year that he’s going to stay out of trouble.”
The prosecutor said nothing to advocate for the original offer. Peters reversed himself.
“OK, I’ll give him PBJ, three years, supervised,” Peters said.
Schatzow said prosecutors can control the charges they decide to pursue, and recommend sentences. But after a judge offers a lesser sentence and a defendant agrees to plead guilty, he said, prosecutors can’t withdraw the offer and move to trial.
We can say we’re not OK with it, but we can’t do anything about it.
Chief Deputy State’s Attorney Michael Schatzow on judges intervening in plea agreements
“We can say we’re not OK with it, but we can’t do anything about it,” Schatzow said. “We can’t stop people from pleading guilty and we can’t control the sentence the judge imposes.”
Davis, the police commissioner, has compiled and promoted data showing that more than 60 percent of defendants with gun convictions in Baltimore since the start of 2016 have had more than half of their sentences suspended. Mayor Catherine Pugh and some members of the City Council have pushed for increased mandatory minimums for gun offenders.
The state’s sentencing guidelines provide a sentencing range based on an offender’s conviction, prior history and other factors.
Figures from the Maryland Sentencing Commission suggest judges in Baltimore are the least likely in the state to deviate from those guidelines. Eighty-six percent of sentences handed down by the city’s circuit judges during fiscal year 2016, the most recent figures available, fell within the guidelines. The statewide average was 75 percent.
86 percent of sentences handed down by the city’s circuit judges during fiscal year 2016 fell within the guidelines
State lawmakers have approved mandatory minimums that could send felons caught with guns to prison for lengthy sentences. But prosecutors often drop those counts and bring forward lesser charges that carry reduced time, in an effort to strike a deal and secure the conviction.
Schatzow said the toughest sentences aren’t always “what’s needed to address the problem.”
“We would never contend that a lengthy sentence is the appropriate sentence in every case,” he said. “Sentences have to be individual.”
In cases reviewed by The Sun, prosecutors often recommended sentences that were already mostly suspended. In one robbery case, for example, the state sought 15 years, with the defendant to serve two. In a drug case, the state sought 15 years, with the defendant to walk free after agreeing to plead guilty.
Prosecutors and defense attorneys said the quality of evidence, the defendants’ prior convictions, and the likelihood of a conviction are the biggest factors in how gun cases are resolved. They did not say intervention by judges was a major factor.
Many gun cases that come before the court are rife with problems. Rarely is a defendant caught holding a gun. Often, weapons are found underneath car seats or in trunks, or in closets or boxes inside homes.
“Every time [police] arrest someone and get a gun, they’re getting a gun off the street, whether anybody gets convicted or not,” said one longtime defense attorney.
Peters said during one hearing that prosecutors were “literally all over the map” in how they treated gun cases.
In a case from March, a prosecutor told Peters that the state wanted three years, with all but one suspended — the kind of deal Davis has criticized.
She also said she would “remain silent” on whether probation before judgment was appropriate. That would mean the defendant would get no jail time.
The defense attorney questioned the search of the vehicle that yielded the gun. He said his client was a “good candidate” for probation before judgment: It was his first adult offense, and he was in school and receiving services through the juvenile justice system for a previous offense.
Peters said the teen would have to serve 30 days in jail. The defendant took the deal.
A 17-year-old accused of possessing drugs and an assault rifle was charged with possessing a firearm in a drug offense. For a first-time offender, the crime carries a five-year mandatory minimum and a maximum of 20 years.
The prosecutor on the case, Corey Kropp, said he’d received approval to drop that charge and pursue a plea deal on a lesser gun charge. He wanted eight years, with the defendant to serve four.
The defendant was on juvenile probation. His attorney
“Today only,” Peters said, “I’ll give him eight and [all but] two [suspended].”
In another case, police said they found the defendant in a bathroom, and a handgun on a ledge outside the bathroom window. The prosecutor said he was in near agreement with the defense attorney that police conducted an illegal search. The defendant had a record, but his most recent conviction was 17 years earlier.
“The case definitely has legal argument issues that I think [the public defender] could be successful on, or I could be successful on,” the prosecutor, Albert Peisinger, said. “It’s a flip of a coin. I’m willing to offer probation.”
Peters was appointed to the bench in 2010 by Democratic Gov. Martin O’Malley. He spent 24 years as a prosecutor, including 16 as a federal prosecutor, during which he handled serious gun and drug cases. He helped prosecute individuals from the “Stop Snitching” video, and corrupt Baltimore Police officers William King and Antonio Murray.
Court officials say there was no model for creating the reception court in 2007. Before then, cases were divided up among the criminal court judges. Judges would tackle their list of cases each day before clearing time to hold trials.
Cases were often delayed for extended periods because courtrooms were unavailable. The reception court system was designed to keep judges free for trials.
There are 15 judges that try criminal cases — only 15 people in this city that can do that job.
Judge Charles Peters
“There are 15 judges that try criminal cases — only 15 people in this city that can do that job,” Peters told The Sun. “If we waste any of that time with doing other things, that’s cases that will not get resolved.
“You basically have to maximize your trial courts, and that’s what this system does.”
The caseload in Baltimore has fallen by a third since 2013. But attorneys say Peters’ insistence on moving cases forward has also played a role in reducing the backlog.
One veteran defense attorney who often appears in Peters’ courtroom called the judge a micro-manager.
“He wants to be known as the judge who gets cases worked out,” the defense attorney said.
Another defense attorney doesn’t think Peters favors either side.
“He’s usually going to come down a little bit off the state’s offer, but I think the state knows that and is increasing their [starting] offers.”
Prosecutors say Peters sometimes denies what they see as necessary postponement requests, which forces them to drop cases or cut unfavorable pleas.
The desire for efficiency is on display daily in Peters’ courtroom. He routinely has defendants in unrelated cases plead guilty as a group.
As deals are reached, he directs defendants and their attorneys to form a queue. Then, instead of calling each case separately, he saves time by reading through the defendants’ rights and other questions once, then asking each if they have understood.
“I need Mr. Robinson, Mr. Evans, Ms. Warren, Mr. Johnson, Mr. Fonseca and Mr. Brown to all stand up and raise their hands,” he said one day.
He went through the questions. With each question, the defendants responded with six “yes sirs.”
“The mere fact that I am speaking to you as a group does not lessen the seriousness of what you’re doing today,” he told the defendants. “You're all pleading guilty to criminal charges.”
Grossman, the University of Baltimore professor, thinks judges should take part in plea negotiations, helping defendants anticipate a sentence they could face at trial.
Peters wouldn’t discuss his thought process for getting involved.
“It’s a fairly straightforward system,” he said. “There’s no magic here.”
Few cases go to trial in Baltimore. When the parties can’t work out a deal and opt to go to trial, they’re often just playing a game of chicken: Forty percent of defendants forwarded to trial judges last year ended up pleading out. Fifteen percent of cases set for trial ultimately were dropped by prosecutors.
Only 17 percent of defendants who elected to go to trial were tried and convicted, according to statistics provided by the judiciary.
17 percent of defendants who elected to go to trial were tried and convicted, according to statistics provided by the judiciary
Police pulled over a car in March 2016, and found a gun under a seat, in a storage container. None of the three people in the car would admit ownership. All were charged with gun possession. But the gun couldn’t belong to all three.
“This is an age-old problem with these cases,” Peters told lawyers at the bench.
Turning to the defense, Peters said: “What do you want me to do? Do you want me to save you? I mean, I think you can try the case.”
Kropp, the prosecutor, said he wanted to go to trial if the defendants didn’t take the offer.
Peters questioned the approach.
“I don’t know if this is going to take Clarence Darrow,” he said. “It’s like, really? How are you going to prove knowledge? I don’t know. I get it, I see why people want to prosecute the case, but I don’t know how you … ” he trailed off.
Two of the defendants had long records. One of them, Dontray King, had an armed robbery conviction. He was also facing a pending drug distribution case.
Though his record qualified him for five years without the possibility of parole, Kropp was offering five years with the possibility of parole.
Another man, Derrick Martin, had no prior record. Peters asked his attorney, Donald Daneman, what he wanted. Daneman deadpanned that prosecutors should drop the case and give his client “a letter of apology.”
“Do you really think, ethically, you can prove Mr. Martin was in the backseat and knew what was in the drawer in the front seat?” Daneman asked the prosecutor. “Waste of time,” he muttered.
None of the cases were resolved that day. Martin’s case was dropped in August. King’s gun charge would be dropped in October, and the same day he took a plea to the drug distribution case, receiving for the second time since 2011 a suspended sentence of 10 years. A third man arrested in the car would later be caught with another gun, entered an Alford plea and received three years in jail.
“The fact of the matter is a lot of these cases are bad,” one defense attorney said. “The sentiment out there is you have a 50 percent chance of winning.”
When defendants reject an offer, Peters sometimes stresses what’s at stake at a trial.
Twenty-three-year-old Leroy Thomas stood charged with attempted murder and first-degree assault for a shooting. Now, prosecutors were telling Peters that there were significant legal problems with how Thomas’ confession was obtained by police.
“We’ve talked to the witnesses,” Assistant State’s Attorney Jeffrey Finucane said at the bench. “They understand we’ll have a difficult time proving the case” if the confession are thrown out.
“We’d be willing to convey an offer to assault in the first-degree, 15 suspend all but five.”
Thomas conferred with his attorney and rejected the deal.
Peters wanted to make sure Thomas understood what he was facing if he was convicted of all counts: Life in prison plus 40 years.
“You don’t want to take that offer?” he asked. “I’m not taking this lightly. I’m not forcing you to do it. I just want to make sure you understand what you’re doing. If it’s not going to work for you, fine.”
Thomas took the deal.
Patricia DeMaio, the deputy state’s attorney for Major Crimes, said she tells prosecutors to “do the best job you can, once you get into the courtroom, for the citizens of Baltimore City.”
“I really do believe that’s what they do,” DeMaio said.