The Baltimore Criminal Justice System: The Judges Speak

MR. GEORGE W. LIEBMANN:

This is a symposium on the criminal justice system in Baltimore City that is jointly sponsored by three organizations: The Bar Association of Baltimore City, Maryland Business for Responsive Government, and the Calvert Institute for Policy Research.

We are honored to have with us this evening four distinguished judges, Judge Charles Moylan, Judge J. Frederick Motz, Judge John Glynn, and Judge Timothy Doory.

This symposium is a bit unusual in that it has five focused subjects, which were suggested by various participants in the panel in discussions prior to it.

Discussion of them on the merits avoids what happens at many discussions of this type, namely a process of mutual blame among agencies during the first part of the discussion followed by a love feast in which the various participating agencies join in a chorus of requests for more money.

We think there are probably some institutional and legal changes that may be desirable that may or may not cost money but that avoid this sort of mutual assured destruction among the various participants in the criminal justice system.

We are going to have each of the panelists give a talk for 10 or 15 minutes on the five subjects, following which we will proceed subject-by-subject seeking the views of our designated commentators, Page Croyder of the State’s Attorneys Office, Elizabeth Julian of the Public Defender’s Office, and Peter Saar of the Police Department.

The five subjects are:

1) the possible curtailment of the trial de novo,
2) the possible curtailment of peremptory challenges,
3) the possible reduced use of mandatory minimum sentences,
4) the possible creation of minor offenses which have penalties of a level which do not trigger the right of jury trial and removal to the circuit court, and finally
5) possible changes in police retirement practices.

JUDGE MOYLAN:

My initial fears with respect to five topics that are as hot button as those that have just been announced for our discussion this evening was that the views of someone who actually left the active practice of criminal law to retreat to an appellate court in Annapolis 33 years ago and has actually gone into quasi retirement from that court for the last two and a half years would be a bit superannuated. But maybe I can bring at least a little bit of historic perspective as we open the discussion and maybe prime the pump for discussion by others more up-to-date on what’s going on in the criminal law than I.

But the first two of the topics on the list that was distributed, mandatory minimum sentences and high authorized sentences for threshold first offenses, are two that provoke one thought in me, and that is that over the years, indeed over the decades, I have always looked upon statutory interference, legislative interference, with what is inherently a judicial problem as very much of a problem. And I hate to see the legislature jumping in by way of mandatory minimum sentencing or even fooling around too much with what the sentences are with the judicial process.

Over the years I felt that, particularly with mandatory minimums, what we tend to get is what I think of as legislated hysteria, an ad hoc response to what seems to be in the daily papers the problem of the month.

I think back by way of example a few years ago when we had a very notorious case, of automobile hijacking, in the State of Maryland, and as a result the legislature rushed into session and almost on an emergency basis created a new major major felony of automobile hijacking; whereas, those who have been involved in criminal law, prosecuting/defending/whatever it may have been over the years, figured with the murder laws and manslaughter laws on the books, with the robbery and armed robbery and the larceny laws on the books, there are plenty of criminal laws that covered the subject of automobile hijacking, why are we simply crowding the statute books with another special crime? But that is the kind of hysterical legislative reaction you get whenever there is a problem that is sufficiently high profile.

You also find sometimes that there is a tendency on the part of individual legislators to make a reputation for themselves by appearing, generally speaking, tough on crime. And before I leave this subject to the one that really is closer to my heart at the moment, I think back to the early 1970s to a recently-elected state senator from Baltimore City who decided after a notorious incident or two of attacks on policemen here in Baltimore that he was going to prove to his constituency that he was tough on crime and particularly tough on anyone who did not respect the authority of the police officer and would dare to make an attack upon an officer.

As a result, we ended up having for the next 30 years, until a reform of assault laws just a couple of years ago, what was Article 27, Section 12A, assault on an officer. And the only difference between that and common law assault and battery that had been on the books for hundreds of years was the provision that anyone guilty of an assault on an officer would be subject to a penalty of up to 10 years imprisonment.

I guess the constituents were appropriately happy until others pointed out: But wait a minute, we’ve got discretionary sentences for assault and battery. That means that the judge may give anything in the discretion of that judge provided only that it doesn’t run afoul of the Federal 8th Amendment and be cruel and unusual, 15, 20, 25 years with regularity. And low and behold, the senator who wanted to get tough on assaults on policemen ended up imposing a 10 year ceiling on a crime that otherwise had no limits.

My overall thought, however, is that we ought to be, even by way of recommendation, very very wary about recommending legislative intervention and legislative responses because sometimes, in reacting to a swing of the pendulum in one direction, too much discretion, we end up going the other way and suddenly there is all discretion and the great cry is sentencing disparity. But back and forth we seem to go and I’m always a little bit fearful when the legislature gets involved.

I now move on to the second topic, the peremptory challenge. Intervention in the operation of the day-to-day criminal courts by the Supreme Court of the United States under the guise of constitutionally imposing upon us the so-called protections of the Bill of Rights, that is no mere problem, that is an unfettered catastrophe. In the world of peremptory challenges, I think the 1986 decision of Batson v. Kentucky is the catastrophe of catastrophes.

I remember at the time about two months after the promulgation of Batson, I had to write an opinion for the Court of Special Appeals applying Batson here locally. I looked at the intellectual chaos of Batson. Nine judges were able to produce a majority opinion, multiple dissenting opinions and multiple concurring opinions, no less than seven opinions for the Supreme Court of the United States. And I remember thinking at the time, and I think I even was rash enough to write at the time, albeit by way of dicta to be absolutely sure, that the Supreme Court thought that it was supplying a solution to what it perceived as a very limited problem of the moment, which at that moment was the use of peremptories in the southern states of the United States, the old confederacy, probably by white prosecutors against black jurors in cases against black defendants.

But as I read through those seven opinions, the bottom line was, wait a minute, this cannot possibly happen. There is no way once you unlimber the heavy artillery of the equal protection clause of the 14th Amendment on this little thing called the peremptory challenge that you will ever be able to confine it to that limited problem.

Indeed, as we embarked on that slippery slope, another prophecy within five years came true and that is: Once on the slippery slope, there is no principled place to stop short of the absolute bottom of the hill and I think that will ultimately be the absolute elimination of the peremptory challenge because as the months went by in the immediate wake of Batson v. Kentucky, lo and behold it is applied not simply in the case of black jurors and black defendants, but white defendants/black jurors, white defendants/white jurors, any race whatever. Soon in Alabama, Ex rel T.V. v. J.E.D, it was applied to gender. It was applied to the civil case as well as the criminal case. It was applied to the defense side of the trial table as well as the state side of the trial table. And as far as I’m concerned, there was nothing wrong with the original use of the peremptory challenge.

I offer just one example. Imagine for a moment anyone here in the room is a prosecutor. Fred was, as I was. And your case of the moment is to prosecute a middle-aged woman of the name of Minnie O’Brien for having thrown a rock through the window of the local abortion clinic.

You as the prosecutor I dare say knowing nothing about the background of the potential jurors brought before you would instinctively strike with the peremptory challenge from your jury anybody whose last name was Clancy or Rafferty or Flynn.

Now, were you in such a situation utilizing group generalization? You’re damned right you were. Would you be well advised to do it notwithstanding? You’re doggone right you would. But the difficulty with the system as it has evolved is that the system, and a little bit of the myth that we have promulgated, would insist that you be intellectually dishonest in attempting to disguise what you were doing with all kinds of other reasons.

You would be explaining to the judge, who might or might not believe you, that you had struck Clancy because you didn’t like the look of that funny little mustache he was wearing, or you had struck Flynn because he declined to make square eye contact with you as you put a question to him.

I think that the bottom line is that as we apply the equal protection clause ultimately to any grouping whatsoever, that demands we look at something with extreme or even heightened scrutiny, that you reach the point where we have totally lost sight that the criminal trial is about the guilt or innocence of the defendant, not about all of these other procedural peripheral questions.

I think as a matter of pure efficiency the only way out will be as Thurgood Marshall and Warren Burger both predicted back in 1986, the ultimate elimination of the peremptory challenge and probably should be. If we could overrule Batson v. Kentucky, I’d be happy to keep it with us forever. But absent that overruling, I think the only intelligent thing to do is to get rid of it.

My last comment very briefly is on the de novo trial. Whenever anyone wants a second bite out of the apple and seeks to go from the District Court of Maryland up to the circuit court of this state, there’s the idea of a de novo trial. Some of the literature that’s been handed out calls this an extravagant anachronism, which made a lot of sense in days when the police court was staffed by sometimes legally untrained police magistrates.

But today, after 1971, after the massive effort to create the District Court of Maryland and to upgrade the quality of that court to where everyone is a carefully-selected full-time professional wearing a robe in a courtroom, no longer sitting in the police station house, to simply say that anyone unhappy with the results automatically is entitled to a trial de novo downtown in the Mitchell Courthouse or in Courthouse East simply by demanding a trial de novo, is an extravagant anachronism.

To change the system, to make these true appeals on the record, would create some immediate dislocation, but in the long run would I think be far far more efficient than what we are doing now which is simply a duplication of efforts.

JUDGE GLYNN:

Well, I’ll start in reverse and get one subject disposed of promptly because I know nothing about it and could care less and that’s the subject of the liberal early retirement rules. I firmly believe everyone should be lashed to the wheel and required to die at their posts. So we can deal with that problem. Maybe someone involved with the police department can discuss that later.

As we look out over this beautiful scene behind us, it’s hard to imagine from this distance that as we sit here people are out there murdering, raping, robbing, selling drugs, using drugs, all probably to some degree within the view of what we can see here right now.

But it’s not so hard to imagine that when you sit in a criminal court in the City of Baltimore every day faced with truly massive dockets, dockets that frankly have risen to the level where despite what the public may wish, the likelihood that the court system, the prosecutors, the public defenders, can work together to effectively prosecute everybody charged with a felony, even just a felony, in the City of Baltimore and get the sort of sentences that the public might say they want, the likelihood of that is approximately zero. We do go a mile a minute, you’re required to go a mile a minute, and you’re required to do that because you’re trying to stuff huge volumes of cases into a very small tube.

The few cases that are going to be tried to a jury, the ultimate sort of trial in our system, tried to a verdict, the end result is a rather bizarre one. The end result is you are inevitably forced to buy off people’s jury trial rights with lucrative offers at sentence, in sentencing. People refer actually trying the case to a jury as ‘rolling the dice’, which implies it has nothing to do with justice so much as dumb luck, 1 which may say more about our system than anything else I could say.

But as we look out over the city, I think we need to look at the situation in context, and remember that one of the big problems whenever we discuss fundamental changes in the system is that these are not problems that many people outside of the larger urban areas really care about.

I remember speaking one time to Judge Horne, who was in the legislature, I believe, and he reminded me of this. We were discussing some of these same issues among judges and he said, you know, that’s a great idea, but we don’t care it’s not really a problem in Talbot County, Carroll County, Washington County, it’s not a problem.

As a result, you always have to put things in context and realize that many of these changes discussed here are intelligent things to consider,, but they are not really perceived as a problem in most other jurisdictions, which is why it’s going to be very difficult to change them. It’s not the only reason, but it’s one of the reasons.

Now, to discuss in detail some of the things I really deal with every day, all too often every day, the subject was raised of trial de novo in the district court. Judge Moylan is absolutely correct.

The old cry used to be, spoken by an old friend of mine who will remain nameless, when the discussion came up about suppressing appeals de novo, trials de novo from the district court, he would say: I’m not going to trust the freedom of my client to those fools. And I’m told Judge Sweeney did not appreciate that.

I was on the district court and now I’m on the circuit court. From having been on both courts, I can say there are no bigger fools on one than the other.

I know there is always the complaint about a particular judge and there may be at times some justification. But that can happen to you on either court. You can pray the case up to the circuit court and have an equally unsatisfactory experience. So I think the argument that the quality of justice is weaker on the district court is not a valid argument anymore.

I think in fact what is really going on here is something that really does plague our system generally, which is that from the perspective of the lawyers involved in the case, it’s really all about how many tools they have in their arsenal to game the system, which is why I think that the phrase rolling the dice is probably particularly apt because I perceive sadly on a day-to-day basis that our system, for a variety of reasons, historical and current, is a system that gives a great many tools to the lawyers to enable them to game the system, to manipulate the process to improve their chances of getting the result they want in a particular case. It gives very short shrift to anything that might conceivably relate to or be relevant to truth or justice, getting a fair result to a particular case.

On the issue of trials de novo, most of the ones that I see either come from judges that for some reason they are scared of or they come for a variety of strange reasons such as it’s 9:30, the lawyer doesn’t want to wait any longer, the lawyer has a variety of other reasons for requesting a jury trial.

They come into circuit court, very few of them are actually tried by a jury. I might get — if you do misdemeanor jury trials, you might get 25 on a docket, 30, sometimes more, the most you’re going to try on a day really after you process that pile is really one. Most of them are looking for a better deal, which they often get, or they are looking to avoid a particular judge, and these are not really appropriate concerns if your focus were on judicial efficiency , but also on something resembling justice.

In a discussion with some of my colleagues, — someone came up with the brilliant idea that actually probably relates to a couple of these topics in terms of the relationship between district and circuit court of saying that, well, the way we’ve modified the rule is you can have a trial de novo in the circuit court, but you’re required to try it first in the district court; if you don’t like the outcome, you then can come up and try it again.

To persuade you to do this, we’d offer you the right if you didn’t like the second outcome, you can actually appeal to the Court of Special Appeals instead of having to ask for permission. I believe you have to ask for permission if you appeal from the district to the circuit.

The idea being that a lot of cases will probably stay there, a lot of cases will be satisfactorily resolved. The people are scared of the judges, but once they hear the case, they may very well be happy with the result and it would force people to focus more of their energy on these cases in district court.

Now, this would end up being argued as an excessive interference with someone’s right to pray a jury trial. Whether it would prevail, I do not know. Probably the biggest fear relating to that would be that you would be potentially incarcerated. The only way around that is to create a situation where the judge of the district court would automatically be required to set a reasonable bail on appeal if the person were incarcerated. Those are potential arguments against that .

My concern about other trial de novo issues affecting the district court is that — the more you make the district court a record court, the more cumbersome the process becomes. The more you’re required to generate records, the more expensive the process becomes. I think that’s what Judge Moylan referred to as early dislocations in the process, and they would certainly exist.

By the way, I will tell you this, I learned this a long time ago, it was depressing, but I managed to cope with the depression. Many many years ago when I was the people’s counsel, I used to go to the legislature and argue various arcane issues that virtually no one understood. And I remember talking to a particular legislator, and this is why I always worry, like Judge Moylan said, when it goes to the legislature.

Judges deal in a world of, or they ought to deal in a world of, what is the truth, what are the facts, and then make a decision. I was trying to argue a particular issue to a particular person who was, as legislators go, relatively bright and alert and — I said, well, first, before you decide my issue, you’ve got to know what’s really the truth, what are the facts. And she said, oh, you don’t understand, we just set policy. And I said, you mean you set policy without regard for what is the truth? And she said, yes, we don’t worry about that. And I thought, well, you know, that tells you a lot, it tells you how lawyers and judges are very different from legislators in how they see the world.

The other issue that was mentioned was a high maximum penalty with respect to the right to a jury trial and the 90 day sentence triggering that right.

I will tell you what a great irony about that argument is, and I’ve argued with my good friend George Lippman, who is a lobbyist for the public defenders office and is a district court judge, about this.

If you suggest, well, we should lower the maximum for crime X to 60 days, and it’s been discussed, you could have some lower creature of drug possession, possession of less than three items or something, maximum sentence 60 days. And what happens when you argue that to someone like the lobbyist for the public defenders office is they will vehemently oppose that.

I said, George, think about this, we can have this editorial in The Sun: Public defenders oppose lower maximum sentencing. Intuitively this makes no sense. And the fact that it is the way it is is part of the perversity of the system.

The benefit of having these higher maximums, which are rarely going to be imposed, is that you can play this game with the system. You can torture the victims, torture the process by bringing the case up to the circuit court, requiring the victims to appear again and again and again and eventually get a much better deal for your client even though that may have very little to do with justice in any particular case.

But when you discuss these reduced maximums, you invariably run up against the wall that I’ve just discussed in that there will be vehement opposition on the grounds that it inhibits people’s rights to a jury trial.

I hate to quote, I’m not sure about this, but I think Judge Motz referred to Warren Brown as an authority on the subject, but he probably is. And he said in a Sun papers article that the tail is wagging the dog. What’s plaguing the city is that in the city the defendants really have most of the cards. Now, I don’t envy them their wait in the city jail for trial, but they do have most of the cards and that’s what drives a lot of the issues that we are discussing here.

As for the issues raised about mandatory minimums, like most judges, I always assume that I can figure out what the right sentence is without any help from people who have already told me they don’t care about the facts. I’m not a prosecutor and I’ve never been a prosecutor, but I’m sure mandatory minimums help prosecutors in terms of plea bargaining, they almost have to.

I think the sad thing is they produce an occasional truly aberrant result. You will occasionally get a person who qualifies, most of the people who qualify for the mandatory minimums frankly richly deserve them and are going to get a sentence greater than the mandatory minimum in any event, but they do occasionally — you do occasionally get a truly abusive case of some elderly person who, and I’ve seen this, who has a prior assault conviction, is therefore charged as a person in possession of a handgun who was previously convicted of a crime of violence and the mandatory minimum was five years, and sometimes it doesn’t make any sense, and nonetheless you’re stuck with it.

Despite what some of you might think, I’m not going to break the law just to prove the point if I know it’s the law. — I have a colleague who, after hearing the facts on a plea, found the guy not guilty basically because he didn’t like the mandatory minimum. That’s the kind of perversion you get.

Now we are on to one of my favorite subjects, and it’s just amazing in the two and a half years that I’ve been on the circuit court the incredible number of jurors that I’ve struck. Peremptory challenges and the jury. They are truly an embarrassment if you’re paying any attention.

Judge Moylan discussed the Batson issue on an intellectual level, we’ll skip right over that part. If you sit there and watch, the lawyers only know how old you are, what race you are, your degree of education, whether you’re a male or a female, that’s about all they know when they pick a jury. All of those are things that we would think you shouldn’t be picking the jury based on if you wanted a fair jury to hear your case.

I’ve had jurors in the jury panel come up, to ask me after we’ve picked a jury, saying: How can you allow this? Don’t you see one party struck all the white jurors, the other party struck all the black jurors? And it is truly embarrassing to watch this happen. It is embarrassing. And discretion being the better part of valor, I just said, thank you for your comments, go back to the jury waiting room and don’t bother me anymore. But it’s true. And when you have nothing to base your decision on but these factors, what else are you going to base your decision on. It’s an embarrassment. It’s a disgrace.

The Batson case is now written such that if the lawyers come up and give you any halfway plausible reason, you say, fine, fine, I know you struck everybody and deep down inside I know why you struck everybody from one race or the other, but let’s keep going, and that’s the way it is.

And my view of it is the peremptory challenges are another device that lawyers, God love them, use to game the process that has nothing to do with justice.

Sometimes it is said: ‘But the judges, they won’t strike the right people.’ Well, you know, then impeach them. In theory, if not in practice, the only person in the room who has legitimate reason to care that the process is done in a just and fair way is the judge. The prosecutor may care personally, but legally wants to win his case, as does the defense attorney. It is the judge’s job to make sure the jury that is picked is fairly picked. It’s a cumbersome process, it’s an embarrassing process, but it’s also a process that the defense bar would vehemently oppose being changed because it’s in their interest, even though it has absolutely nothing that I’ve ever been able to detect to do with justice.

JUDGE DOORY:

Ladies and gentlemen, after hearing from two great thinkers, I am a pleasant change of pace because I am not a great philosopher, I am someone who by nature is a pragmatist and a natural-born skeptic. 23 years as a prosecutor, the last 10 of which as the chief homicide prosecutor in the city where I watched about 3,000 homicides, and now six and a half years on the bench, a half of that, , I have been on loan to the circuit court. So I have had plenty of fodder for my skepticism. And believe me, I’m bringing that skepticism to each of the topics we’ll talk about.

First, as to de novo appeal, it is not any challenge to my talent as a skeptic to point out what’s wrong with the system. But I suggest that the logical system, the one that is proposed, may be one about which there are many hidden problems, and sometimes it is better to stay with the devil we know than to invite a new devil into the house.

Some of the problems if we were to switch and eliminate de novo appeals and make all appeals from criminal cases in the district be on the record are associated with I think not preliminarily getting all of the facts. How big is the problem right now in what is happening in the court system? Are these appeals clogging the system?

I think they have to be analyzed in terms of two questions. Are people appealing cases from the district court because they are aggrieved with decisions that were made, or are they simply looking for a sentence review? Because I think statistically we may find that for those people who were given a sentence in district court, appealed, and by the time it got to circuit court, that sentence has been served or whatever it was that they were concerned about, probation, be it community service or something, has been done, that those appeals are withdrawn.

So maybe the solution is not necessarily doing away with the de novo appeals, but rather putting in some other process for some sentence review of a district court sentence. If we did have de novo appeals at the circuit court, that would require an appellate practice at the circuit court not only for all of the attorneys involved, it would require that practice for the judges involved, and I’m not sure that that is a minor problem.

And think in terms of the defendant in jail. If his only remedy is an appeal on the record, he’s got to sit in jail while that appeal, that transcript, is being developed, and for many of the sentences coming out of district court, that time waiting for the transcript is longer than the sentence.

You also have to realize that if you have a trial in a district court, all the facts are presented, all the witnesses are heard, it is appealed on the record, and the remedy is that there was an error in the district court, the solution then is retrial in the district court, which means you have necessitated a whole other trial after you have necessitated a transcript in an appellate case. Just some observations from a skeptic.

Moving on to the next topic that was presented : mandatory minimum sentences. As a district court judge, as a circuit court judge on loan, as a judge assigned to the dreaded sentencing commission, I understand how much judges hate minimum sentences of any sort.

What I must point out, and this maybe is getting back to my years as a prosecutor, particularly 10 years watching 3,000 homicides in this town, that when it comes to handgun offenses, I firmly believe that those minimums are necessary.

It may be a most distasteful medicine, but the medicine I believe was necessary because there are far too many light sentences for people with handguns. And as I sit there and frequently do bail reviews and see someone who comes back in a most dreadful circumstance, it is uncanny how frequently that person has a handgun conviction on his record. If you wanted to do away with all minimum sentences, I’d have no objection so long as it didn’t touch anything that dealt with the handgun situation.

That being said, I also have to point out that sometimes legislative wisdom in these circumstances is sort of genius. If I correctly read Article 27, Section 445, 449 I think the sentence for a felon in possession of a handgun is a mandatory minimum five years without parole, which also seems to be the mandatory maximum, which means it’s just the sentence, which doesn’t seem to give the judge much discretion for a person he has convicted.

Now, we’ve also been challenged to consider changing the maximum penalty for de minimis crimes and presenting something along those lines to the legislature.

Eight years ago, I worked on this very thing in presentation to the legislature, and in fact I was with the States Attorneys Association Legislative Team that actually presented to the Article 27 Commission the restructuring of the assault laws. The legislature the year before had attempted to do that, there was such an outcry that the matter was referred back to Article 27. I believe it’s the only time Article 27′s recommendations were not accepted by the legislature. And we came up with this two step approach to assault.

At the same time we presented that package, the state’s attorneys from Baltimore City, put in an entire plan for a series of de minimis crimes such as possession of less than three grams maximum of marijuana, some minor forms of assault such as like spitting on someone or something along those lines, we had a whole series of suggestions involving minor larcenies to cover shoplifting where the penalties would all come in under the 60 day limit.

We thought it would make the system much more efficient and make the system actually work by having these crimes charged and tried in the district where the decision would be quickly made and pressure would be taken off the circuit court. We were resoundingly ill-received in the legislature.

Outside of Baltimore City, there is no sentiment that it’s a problem and legislators, they explained to me and have since explained many times, are very opposed to voting for anything that is captioned as a reduction in the penalty of crime because they will be then listed as being soft on crime, which even though they may be doing it to make the system more efficient, and even though that may in essence be a crime-fighting tool, they would be viewed as being soft on crime and would be opposed to it. So I really don’t think there is much hope of relief from Annapolis on that issue.

I’ve also proposed possibly having the city through its own ordinances address these very crimes. But for the crimes that we are talking about such as the theft crimes, the assault crimes, and the narcotics crimes, there is a substantial problem of preemption. But possibly greater thinkers than I could find a way through this. I can only skeptically show you the problem.

When we talk about peremptory challenges and doing away with them, once again I think that this is a logical suggestion. Once again, as a skeptic, I see many very very serious problems with doing this.

I share Judge Moylan’s views, his lack of confidence in the Batson decision. I have always had great difficulty in understanding Batson, which is an equal protection case, and it deals with the rights of the juror. I have never seen a juror struck in my 30 years who didn’t leave the courtroom with a smile. So if they forfeited their constitutional rights, it was not terribly obvious. One of those jurors is here, by the way, but we won’t get into it.

But that aside, after Batson, trial practice is different. The selection of a jury is uglier. It is uglier for the attorneys, it’s uglier for the jurors, and it’s uglier for the judge.

Because, in essence — and truly I seriously thought about giving up trial practice because of this ugliness — in the early days the only way to get a Batson challenge on the floor was for one lawyer to stand up and point at the other one and say: He’s a racist. I find that after 20 some years of a gentlemanly practice to be a most offensive way of going about things.

And in fact, it only happened one time where I was trying a white police officer for shooting a black kid on manslaughter. Now, that’s a four strike jury. Now, after two strikes, the defense attorney filed that complaint against me because I had struck two white jurors. My initial response was, before Batson, before anything can be demanded of the attorney, a pattern has to be demonstrated. And once again, I’m not a great thinker, but I believe that a pattern requires a series, and two is never a series no matter what.

The judge smiled at my mathematical argument and then demanded me to explain why I struck two white people. I had to be very honest. I thought one from the scant information I had in front of me lived very near the defendant, as the neighborhood was listed as the same. He found it that to be a reasonable argument.

The second was that I said, well, the first person I struck, Your Honor, is a doctor. She said, yes. I said, and he didn’t even ask to be excused. Now, what kind of doctor is that? Could it be that he’s a psychiatrist? And I certainly don’t want one of them on the jury. So that was accepted as a rational explanation. But you can see how much shooting in the dark there is involved in this.

But, change it around, from the attorney’s point of view why do we need peremptory challenges? The truth of the matter is in order for the attorneys and their clients, be it a defendant sitting there, the victim sitting in the hall, to have a level of confidence in the process.

If you do away with peremptory challenges completely, you create some substantial problems, one of which is this, and I don’t know if you’ve ever been there in a trial where a juror has been seated and you know in your heart of hearts that juror has the door closed to you, there is not a chance anymore, that hopelessness on the part of attorneys can lead to an attitude of sabotage of the trial. The best outcome, if you think that there is one juror that must vote against you, is a mistrial. A mistrial is better than nothing. And believe me, that is what trial attorneys will reach for.

Another problem along those lines is that in the literature that was presented to us, the solution was for judges to apply this standard, and I think I have written it down correctly, that it is mandatory exclusion if there exists beyond a reasonable doubt the possibility of partiality.

Now, mandatory and beyond a reasonable doubt sound an awful lot to me like appellate issues. Once again even before the trial starts you may be sending the matter back to be retried.

So I suggest that we should do something to change the process that we have, to take up a position on this slope that Judge Moylan has described somewhere slightly above the bottom, and along those lines a few suggestions.

One would be to substantially reduce the number of challenges involved because, once again, I’m thinking in my old homicide prosecutor mode, a man is a far more aggressive and dangerous character if he’s walking down the street with a semi-automatic pistol in his pocket with 17 rounds than a man walking down the street with a Derringer in his pocket with two shots. With two shots you can’t afford to miss.

Right now we have a system where it is either four per party, ten and five or twenty and ten. If we reduce the system down to one that was two, three and four, at least the potential for abuse is substantially reduced, and if you have ever picked a jury you know that when you get down to your last two strikes, you are most judicious in what you’re doing because who is coming up may be a whole lot worse than who you’re striking, and particularly if you’re striking someone who is in the box. If you strike someone who is in the box, you create a vacancy that has to be filled and you may need a strike to stop someone from filling the void that you have just created.

So reducing the number down may be part of the solution. It may also be wiser to do away with the Batson preliminaries of requiring somebody to stand up and point the finger at the other side, rather require an explanation for every peremptory challenge that’s used. No pattern. No initial showing. You want to strike this juror, you strike the juror, fine. You have the right to, but you have tell me why you did it. You have to put that on the record. And even if you had a larger number of challenges than the minimum I’m suggesting, that may be a sufficient brake on the system to avoid some of the abuses.

A third thought is this: Each party would be given the right to strike one person for cause in addition to those struck by the judge. You may strike a person for cause, but you must in private announce the reason that you’ve done it. And if the judge is so impressed that you have done so in the furtherance of justice, in the hopes that a more fair trial will be had, you can get another one, but that’s only after you’ve expressed yourself about why you used the one that you did.

I’m suggesting that we have to be imaginative here, that no challenges creates great problems, that some challenges have a place in the system, but that we have to do it much better than the way we are doing it right now.

And the fifth topic about which we are to address is the pension system in Baltimore City. I must confess in advance that I am a retired Baltimore City prosecutor. So under the circumstances, it is inappropriate for me to say anything.

But I do point this out, that as someone who was in that position, I can tell you that I stayed longer and turned down other opportunities later in my career because the prospect of obtaining a pension was there. So that is a factor to consider.

JUDGE MOTZ:

For someone who is not a great thinker, he has a lot of great thoughts.

To the extent that what’s being talked about is legislative fixes on state law issue, I really hesitate to say anything at all and I won’t, but I’ve never been shy about speaking my mind.

I want to start off by saying I think it was Pogo, it one of the old cartoons, we talked about criminal justice, the problem of us, and I’m not talking about us judges, prosecutors, police, I’m talking about us as citizens.

I’ll say it’s frankly the same thing with health care. The problem is with us the reason we have such a tremendous mess is because we don’t recognize our own mortality. People want to have the great drugs, but they don’t realize they have to pay a cost. They are not prepared to deal with their own mortality. That’s with all of us. We don’t think through the implications of things we talk about. And that is certainly true in the criminal justice system.

Let’s face it, it’s not only people in Talbot County who don’t worry about the problems in the city, it’s the people out in Baltimore County, the people in Anne Arundel County, in the metropolitan area. As a state, we survive in the city.

In this area, the people out in the suburbs don’t care. They don’t understand. They love to go to cocktail parties and they love to say, oh, lock them up and throw away the key. Do they want to spend any kind of money to have a civilized incarceration system? No. Are they going to do anything about the city jail? We can’t get a federal detention center in this state which we’ve needed for 25 years. That’s partially geography. But nobody is going to do anything about the problems, they are going to talk about them.

They are going to say, we want mandatory maximums and minimums and enact stupid legislation like the one that Tim just referred to where the maximum and the minimum are the same so that you can’t have any plea bargain. I mean, let’s face it, they are going to rail against plea bargaining. Everybody says, oh, plea bargaining is a terrible thing.

The fact is that any professional knows that the system won’t work without plea bargaining.

They are going to pretend that they have evenness and uniformity in sentencing by having mandatory minimums and by having strict sentencing guidelines. This is something that I can bring from the federal perspective because we have far more strict sentencing guidelines than the state does. Indeed, everybody is trumpeting today about the Amber Alert Bill, it may be fine, but what’s not talked about is a provision of that bill which is something that is even more restrictive of federal judges’ departures from the guidelines’.

What really offends me about that is the intellectual dishonesty of it because discretion is not something you can destroy. Discretion is something you can just disperse. And anybody who knows anything about the system knows that you’re simply transferring the power to the prosecutors and indeed sometimes the police officers when you have strict sentencing guidelines.

What do I mean? Well, if your guideline is determined by how many drugs are involved in the prosecution, you can even have the police keep an investigation alive longer than they would otherwise to have more drugs involved. Now, I’m not saying that’s bad, there may be good reason for it, but theoretically it’s not good.

Certainly at the prosecutorial level it happens all the time. What you charge is what’s going to mandate the sentence. And it is just not true to say that you get uniformity in sentencing when you have strict sentencing guidelines. You have simply transferred the power to make those decisions away from the judge, who is accountable in the courtroom, who presumably has more experience than prosecutors who make the decisions behind the scenes in their charge decisions, in plea negotiations, and who are not impartial in the system.

Now, that’s not to say that you shouldn’t have guidelines. The judges, some are too hard, some are too weak. But if you have a system where you have guidelines, appellate courts know which judges are too soft, which ones are too weak, they can also look at a strange case and do something about it, that’s the way to solve that problem.

You don’t want strict sentencing guidelines. You don’t want mandatory minimums, of course you have to have mandatory maximums, and that is something that every — and every federal judge is going to tell you that, so we are just like parents. But the fact is that we know that from experience.

Something which is not on the agenda, but something else people love to go on about is the death penalty. Well, I’m not going to take any moral stand on the death penalty. In fact, I sometimes wonder if I know the answer myself. Certainly there are cases in which it would seem logical, a heinous crime or a crime of treason, killing prison guards and things of that nature. What are the rational responses?

But forget the morality of it, look at the practicality.

Anybody involved in the system knows how costly a death prosecution is. It is incredible. Everything has to be done as perfectly as possible. For one thing, the machine doesn’t run as well when you’re trying to make it perfect. It runs better when you’re trying to make it run well. But if you try to make it run perfectly, the cost in the voir dire system, the cost in just taking time to take care, the cost for our marshals, for example, who in this day of terrorism should have other responsibilities, is just a misallocation of resources.

That’s not to say in an appropriate case it shouldn’t be used, but the answer that we are going to solve the problem of crime nationally by having a lot more death penalties doesn’t make any sense. And professionally, the attorney general of the United States, ought to know that. He ought to set other priorities. That’s not to say you can’t have it appropriately, but you shouldn’t waste scarce resources on things which aren’t going to solve the problem anyway.

But it’s not just the people in the suburbs, it’s the people in the inner city too. We are talking about inner city crime. Where is the talk there that people are going to take responsibility for what they do?

I just had a case the other day, a terrible case (people say federal courts don’t see inner city crime, they do see it, they’ve been seeing it for years. The present U.S. attorney has brought exactly the kinds of cases he should bring. I just recently tried a RICO case involving inner city gangs. I just tried another one involving a terrible shooting on North Avenue and they ended up in pleas.)

I had a sentencing in court the other day after a plea bargain was reached, one of the defendants was given 35 years and a victim came in and she started screaming at the defendant about how could you have done this. There was no communication going on at all. But I looked around the courtroom and there was a palpable lack of responsibility for what was going on.

One of my defendants, I heard this, I don’t know this for a fact, he’s 25 years old, he’s a grandfather. What are you going to do when you have kids having kids and nobody is taking responsibility for it? What are you going to do? I see it in probational courts every day. I saw it when I first went on the bench 16 years ago, I saw 36, 40 year old grandmothers. Now I’m seeing, if it is true, I’m not sure, this is hearsay, but it’s certainly biologically possible and certainly it’s functionally possible to have 25, 26 year old grandfathers and none of them are staying with their kids.

The solutions to some of the problems that we are discussing, they are not just small legislative fixes, they are fixes that require true across-the-board work by everybody. And as a city we better come to understand it. And when I say a city, I mean a metropolitan area.

Peremptory challenges, I think Tim’s idea of reducing the number of peremptory challenges is a terrific one. It’s the same problem in the civil area in the area of litigation expense.

One of the huge costs — what’s made civil litigation far too expensive is the number of depositions that are taken. We give lawyers a chance to take depositions, they will take depositions from now until doomsday. They train their young lawyers to do it, they pay their overhead, and they can talk. And great minds have tried to fix this problem by changing the standard that you can only look into reasonable things that might lead to relevant information. I forget what the standard is. Frankly, I don’t care what the standard is. It doesn’t make any sense.

I solve the problem by saying you’ve got five hours of depositions, you can spend it any way you want, but you’ve got five hours. Now, the number of deposition hours depends upon the amount in controversy. But I’m not going to set the standard for you, I’m going to let you set your own standard. If you want to spend your five hours asking irrelevant questions or being a jerk and interjecting when the other side is asking questions , go ahead and do it, but the five hours is going to be spent. Same thing with the two peremptory challenges, use them.

In fact, I’m not so sure Batson has had a bad effect. I think it has had probably a deterrent effect upon the most egregious of strikes for inappropriate reasons.

Now, the problem is lawyers can cause all kinds of problems, it’s essentially a race problem to begin with, then it became an age problem, then it became a gender problem. The other day I had one of the lawyers say, I struck him because he was young. That’s a Batson violation. A suspect classification, you’re making an age discrimination. It’s just silly. We can do it in a way that you don’t have to call the other person a racist. You can call upon them to explain themselves, but we don’t have them sit in the box.

What we do is we have all the jurors stand up first, identify themselves, we strike for cause, then if you’re picking 14 jurors with two alternates, each side gets 16 strikes. What you do is you don’t have people come into the box, you draw, you start at the top of the list and the people who are listed, you draw a line after the first 14 jurors, plus the 16 strikes. After the first 30 people, nobody is standing up, the sides finally strike. They don’t know who the other side has struck until the end. Then they hand the list to the clerks and the first 14 people are the people selected.

And what I do is before they are handed to the clerk, I say, exchange your lists with one another. If there’s a Batson challenge, come on up to the bench and we’ll talk about how to solve it. When they are made, people don’t say they are racist, you say, I think I really question why that strike was made, and somebody is called upon to explain themselves. I think it has had some deterrent effect upon bad challenges, but I think the idea of limiting the number of peremptories is a very good one.

I mentioned before one of the things that causes me problems about the sentencing guidelines is the lack of intellectual honesty. Charlie and John both made the same point, and a very good one, about peremptory challenges. It truly corrupts the system when you have to defend things that are different than they are.

Frankly, that’s also true about search and seizure laws. Now, I’m not suggesting any grand constitutional change here, but I get a lot of gun cases and I get a lot of inner city searches and I know what the police officer has done has played a reasonable hunch, which in context probably is a very good hunch, to try to get rid of some of those fire arms on the street. Does it amount to reasonable suspicion? It gets awfully close.

But it is corrupting when you are bending over backwards to help the police too much; on the other hand, you know that the police — by definition, it’s been a good search in the sense that they’ve found something. I’m awfully close to saying that legislature ought to be enacted, in given areas, areas of crime problems, which would reduce the standard to reasonable hunch. I really mean it.

Let’s face it, the same thing about gun control. When you hear the national debate about gun control, hunters and people who are responsible, people who are hunters and that guns are part of their family, they grew up in Montana, they see a great infringement upon their constitutional rights because they can’t teach their children how to use guns responsibly.

They are talking about a whole different issue than what is two miles from us, a whole other issue, and people ought to focus upon it in different ways recognizing the different contexts that present themselves. I mean, you can’t give too much power to the police because we all know that we will all abuse power if we have it. But on the other hand, one of the problems in the inner city, talking about lack of responsibility, in these hearings that I’ve had, in these suppression hearings in these cases, people come up and they bring their kids and they sit in the audience and as soon as the police officers say something which seems a little inconsistent, the defense passes and they start these great gales of laughter as if saying, ha ha, we caught you.

Well, who is making your life miserable, the people in the audience, is it the police officers who are out there trying to defend you and doing the best they can, putting their lives on the line, making difficult judgments, or is it your buddies who are thugs and the thugs are running the street corners?

I mean, that is something else that the inner city population has got to come to understand, that the police are not occupying forces who are trying to do them in, they are trying to prevent burning down the houses of people with people inside because they’ve been on drugs, which has happened in the city within the past six months. It is terrible. It is terrible that we as citizens in this metropolitan area aren’t more outraged about this.

I guess the only other two things I want to say is: Don’t think that the solution is to throw all the cases in federal court. I mean, these fellows work terrifically hard and every additional judge that they can get helps them.

We have six active district judges in federal court. There are cases we ought to try. We ought to try some of the cases I’ve been trying. You can use federal resources and you can use federal laws, you can use RICO to get a network. But don’t just think that by having six additional judges that you’re going to be able to solve the problems of the inner city. For one thing, they look at the stats where you’ve got such a higher rate of conviction in federal court and that’s because the prosecutors are making reasonable cuts on searches and seizures and decisions before the case ever gets into court. We’d been throwing cases out all the time on some of these searches.

We just can’t handle every little case that comes along. And if we do, and this frankly again is something the private bar should become involved in, if all we are doing is trying criminal cases from the city, we have other things we are supposed to be doing. We are supposed to be trying antitrust cases. We are supposed to be trying banking cases.

We are also supposed to be trying civil rights cases. We are supposed to be trying employment discrimination cases, ERISA cases, which involves the rights of people who are being deprived of benefits by insurance companies, things that really go to the heart of people, we can’t do all of that if we simply are turned into another branch of the criminal court of Baltimore City.

The private bar ought to [speak]– I haven’t seen a letter to the editor or an op ed piece which says: Look, the federal court does have a role, federal prosecutors do have a role, but they too have limited resources and they have other responsibilities, some of which are of tremendous economic importance to the state, intellectual property cases for example, where they have to have the time to be able to do that job and they also have to do other civil cases which count for every citizen in the state, such as employment discrimination, civil rights and pension cases.

The final thing is, we also have to believe in the rule of law. We have to be tough. We have to recognize the risks that are facing us domestically and internationally. But let’s not be embarrassed by when a generation looks back on us and says: What were those people thinking when they were denying rights to people because of a vague concern about terrorist activity? That’s not to say that there aren’t legitimate things and that there are some ways that we have been too soft in the past.

But there are some cases going through the courts right now where thought for the rule of law and the importance of the rule of law is being forgotten.

Frankly, I think it may have helped not in a terrorist case, but in the Lee Malvo case right now, but that’s a whole different question and that’s for the Virginia judges to decide. But we can’t just say we are frightened and give into mass hysteria and forget the rule of law because then we are in for a lot of trouble.

MR. LIEBMANN:

I’d like to telescope the first two topics, the trial de novo and the idea of having low entry level offenses, particularly low entry level drug offenses, that don’t trigger a jury trial right in the circuit court.

The trial de novo issue, as someone said, is not one of enormous practical importance as things are. Last year there were 378 criminal cases that were tried and appealed de novo in Baltimore City, that compares with the number of cases that were removed from the district court jury trial, which was 12,548.

So it’s not the right to appeal a district court case after it’s been tried in the district court that’s of great practical importance, it’s the jury trial right itself and the thousands of cases removed when there is really no intention of claiming a jury trial in the circuit court.

What renders the trial de novo question of importance is that if these minor offenses were created that called for sentences of less than 90 days, then the trial de novo would become a large issue.

In a great many of the foreign systems, and in many many other states, the magistrates are essentially the front line of defense. They try minor crimes and they are the last word on them subject to a record appeal. And the effect of that is that there are twice as many judges trying criminal cases.

In our system, the district court is simply a way station and therefore the entire serious burden is shouldered ultimately at the circuit court level. So that I think the idea of creating more district court non-jury offenses is inextricably intertwined with the issue of trial de novo: it is probably not worth doing unless you curtail the trial de novo.

But if you do it without curtailing the trial de novo, you won’t get as many jury trial prayers as you get now, but you will get an enormous number of trials de novo. The pressure that’s now brought to bear on the circuit court by removal for jury trial will take the form of appeals de novo.

I turn now to our panelists who have varied and I suspect contrasting opinions about these two issues, trial de novo, and the idea of new minor offenses.

PAGE CROYDER:

Let me issue the disclaimer that the views I express are my own and not that of my boss, Patricia C. Jessamy.

I agree with George that the two issues are intertwined, trial de novo and the sentences for first offenses if 90 days is the magic number for when somebody becomes eligible to pray a jury trial.

A lot of the problems here and a lot of the things that we are discussing are driven by the volume in Baltimore City. If we don’t see some of these issues in the outlying counties, it’s because they don’t face the volume that we face in Baltimore City.

In reality, a lot of the crimes that we see that come through the system , regardless of what the maximum sentence is, one year, two years, three years, are probation cases or short jail terms that go under 90 days and yet all of these people who face the maximum sentence are eligible for jury trials and in my opinion the role the district court currently plays is as a way to negotiate the best plea possible, not necessarily to get the best forum to have the facts heard, but to get the best plea possible. ‘And so if you don’t take my plea, state’s attorney, if you don’t take what I want to plea to, we’ll go down to the jury trial.’

There is tension between the district court and circuit court judges. The circuit court judges think that maybe some of these cases shouldn’t be coming down to them. District court judges want to give the sentences they think are appropriate, but they get undercut and they get less sentencing at circuit court.

I think that we need to move in the direction of making the district court more of a court of finality. Right now I heard a colleague of Judge Doory say that that the district court is merely a postponement and probation court and I agree with that assessment. Postponing cases when the defendant doesn’t have an attorney or in cases where the state doesn’t have their witnesses, and after that, if they are not offering probation, down to the circuit court it goes.

We have now highly trained, highly paid district court judges, we should be making use of them, and I think we should be taking the burden off of the circuit court by limiting the de novo appeals. Having a trial all over again is without question a waste of court and judicial resources.

I also think as a practical matter we need to recognize when cases are not going to be in the category of over 90 day sentences, they should remain at the district court. I have heard my colleague, the district public defender , say that limiting more cases to 90 days deprives people of their constitutional right to a jury trial. I disagree. The right to a jury trial begins after 90 days and if more cases are limited to 90 days or less, there is no constitutional right and nobody is being deprived.

If we recognize the reality and if we limit more cases, I think that we could take substantial pressure off of the circuit court and use the district court for what it was designed for: To resolve in some kind of final fashion the cases, the minor cases, in our system.

MS. ELIZABETH JULIAN:

When you just look at one point about taking away the right to a jury trial, if there was a right to a jury trial on the crime and then you take the 90 days away or the 91 days away, then you have effectively legislatively taken away the jury trial right on a classification and I stand by that.

I believe in jury trial for many reasons because my focus has always been in my career at the circuit court level. But my experience has been to get the 12 jurors in the box and try out fresh ideas on fresh people, not judges who have heard hundreds of cases and maybe even in district court that number that day.

But I think that we are missing something here. I think the whole reason for why we are looking at the trial de novo aspect of things and the reason why the on-record part is disfavored is because in Baltimore City because of the volume and because of past practices, the discovery rules are not as broadly used. So many times people will be trying to get information to get prepared for the next step, getting up to the circuit court, so they go and try the case with more information than they were given before the trial started.

The rules are less mandatory in the district court than they are in the circuit court. But I agree with something I read in this wonderful packet, I agree with Judge Doory on that, the information was really great. There was a Massachusetts study that was talking about pretrial discovery at the district court that answered the questions I’ve just raised, so that there is more information gained in the proper way and the cases were held where they should be, at the district court level. Before we go changing the system, we need to look at and fix the system that’s already in place.

Another aspect of searching for pleas at different levels comes from the processes that the different judges use down at the district court. Some judges will bind themselves to a plea. I think that’s called a defense driven plea in the materials, I can’t remember, something like that. But the point is– you debate the plea in front of the judge. The judge may choose to engage in it. Many judges will say, well, that’s what the state offered, what are you going to do, rather than trying to, in view of the volume, engage themselves and see if they can get something more meaningful. The answer right away, just with the plea on the table without any tweaking of it is, yes, let’s go someplace else and find a better deal, and that’s practice. As a defense counsel, I feel it would be unethical for me not to take that route and go where I can do the best for my client. But that’s something else that needs to be examined.

The process though in Baltimore is driven by the volume and I think that when we look for efficiency we are losing effectiveness. I believe that things are backwards anyway. I think that preliminary hearings should be held at the circuit court where the case will be tried. If the preliminary hearing in the case is successful for the people bringing it, for the state, it should stay right in that building. It starts in the circuit court and it stays there.

I also believe that jury trials should stay down at the district court, and that’s not a novel concept. I saw this play out, both of those aspects, in San Diego, it makes more sense, they leave misdemeanor cases where they belong in the district court. To shift the burden down to the circuit court does not really make sense intellectually and definitely economically. But when I say economically, we are not prepared to do that.

We were talking to Judge Doory about the fact that there is a jury courtroom in every one of the districts and that’s nice, but they don’t use it. If we were to permit jury trials down there, one would not be enough.

But the issue I think I missed, was binding of pleas. Some judges will bind themselves and say that, if you get the facts and I’m still in agreement with this plea, then this is a good deal. If I don’t agree to this deal because I’ve heard something that I can’t do, I will not honor this, I may change this agreement, then you’re free to go down to the circuit court and free to ask for a jury trial, you’re free to take it to the circuit court and free to leave my court.

Some judges will not do that and so there is uncertainty when you’re going to the first level of what the outcome will be, which I don’t think it would take that much more time to resolve it where it belongs. And I think that sometimes it’s engendered the practice of passing cases along because you have someone in your court room at the district court at the time.

MR. PETER SAAR:

Now, oddly, I’m here from the Baltimore City Police Department, Legal Affairs, and my perspective in this comes in part mostly from being a former prosecutor myself.

However, from the standpoint of how the trial de novo reduction or trial on the record would be, it would certainly be, at least for our purposes, the department’s purposes as sort of a cost savings as far as having to pay police officers to go to court for the court overtime that they normally wouldn’t be expected to be receiving for attendance at court if they are off duty.

If we have a trial de novo at the circuit court level or there are increases in that as a result of what we are contemplating here, or if we have trial on the record, we would avoid that additional expense or that expectation of an expense from a budgetary standpoint.

Certainly for officers who are on duty, it would be one thing less for them to be removed from the duties of patrol to attend at the circuit court level because the record is sufficient or is expected to be sufficient for the purposes of the appeals.

With reference to reducing the number or offense to a number of days, 90 or less as a first penalty, that would be also a very large benefit in my estimation, but it would also have to be done in tandem with the trial de novo changes for the very same reasons that have already been expressed. I won’t go over those. But again, it would be beneficial because you get some finality at a much earlier point in the entire process for a category of offenses.

I won’t debate the issues of jury trial rights and constitutional rights and infringement by legislative action because it’s really at this point an academic discussion from my standpoint.

MR. LIEBMANN:

On this issue, I’d throw out one other question and that is whether the issue in an important way is one that’s involved with drug penalties. If what drug possession charges are really about is diversion into drug treatment, doesn’t it make sense to eliminate the gamesmanship concerned with removal and trial de novo and just allow the job of diversion to get done in the district court while the cases that do get tried through a record appeal, perhaps a record appeal that’s more intensive than the usual record appeal.

You could in theory have a record appeal like the one in England before the Court of Criminal Appeals which has the right to set aside convictions if they find them to be unsafe, whether or not there was trial error. And they also have the right to some degree to remand for additional evidence if they think that’s desirable.

I throw this out because one concern seems to be that the system for the processing of violent crime and violent offenders in the circuit court is simply buried under drug cases that don’t necessarily involve violent offenders, but heavily burden the system.

JUDGE GLYNN:

Well, first of all, you have to persuade the people involved in the process.

It’s very difficult for people to say, well, we are just going to divert all of those through the district court to some sort of probation and treatment, particularly when no such treatment really exists at the current levels that would be needed to accomplish anything.

You could actually have an entirely different program discussing this, which I think it would probably be better to discuss when no one was here filming it, but discussing the deleterious, secondary and tertiary effects on our society and the criminal justice system of the war on drugs. It’s a very complicated subject which at this point we don’t have time to go into, nor do I particularly want to. But it’s an entirely different subject.

JUDGE DOORY:

A couple of thoughts.

Yes, diversion for those people for whom it’s appropriate into treatment is an important step in this process. But, believe me, in district court we are doing that with every one who can be couched in any way, shape or form as any type of first time offender. And believe me, we don’t count very well when we count to one.

But remember, we put everyone into diversion who wants to go.

Most people don’t want to go into diversion with treatment and a little bit of human service thrown in. This is considered by many a rather onerous outcome to being found in possession of drugs.

That being said, you have to understand that district court with its early resolutions court is clearing out as many cases as possible for those people who want nothing or next to nothing.

Another thought that is being frequently mentioned, and I really have to present what is definitely a minority view, and that is I do agree with Judge Glynn, that the war on drugs is not exactly a success and that we can’t arrest our way out of the problem.

But on the other hand, I think people are very wrong to think we can treat our way out of the problem because most of the people who come to court don’t want treatment, they just don’t want anything, they want to be left alone.

Just think if you walked into any bar in town right now, just walk in, pick out your bar and walk in, and say: Okay, for everybody that’s in here, we are going to give you alcohol treatment so you will not drink anymore. How successful would that be? We would spend a lot of money doing it, but would we stop people from drinking? Maybe one, maybe two. And if we did it over and over and over again, maybe more than that. But we have to realize most of the people who use drugs in Baltimore City today, are using them certainly as a result of addiction, but because that’s what they want.

Now, are you going to decriminalize it? Then you’re going to have to think about all the problems that you’re going to put on the other side of the problem. It’s not a simple solution.

MR. LIEBMANN:

I find it interesting in this political day and age that we still have on the panel one Albert Ritchie Democrat.

I promised Page Croyder that I would have her address two subjects at once, mandatory minimums and the peremptory challenge issue.

MS. CROYDER:

Thank you. I’m sorry to lump them together.

Mandatory minimum sentencing, I agree with Judge Moylan. I think that they are also a reaction to some high publicity event that seems so terrible. That they were let out on probation and how could they have done that and now they went out and killed somebody and now they went out and shot somebody else.

It’s also in creation of new crimes. The sex offender getting out of jail who commits another sex offense, now we have sex offender registration laws where people have to register. I think a lot of these legislative reactions are ill-conceived and political in nature and are not necessarily helpful to the criminal justice system.

I have somewhat mixed feelings about mandatory minimum sentences. It is a prosecutorial tool and a powerful one without question. And in a jurisdiction like Baltimore City where we have sentences driven down down down by our volume, mandatory sentences sort of catch our attention and catch the judiciary’s attention. They say, look, judiciary, look prosecutors, we think particularly gun offenses, gun offenses and violent crime offenses, are important to us and we need you to pay attention to them.

However, I also think mandatory minimums are misleading because they don’t have to be mandatory minimums, they can be subverted by the prosecutors who choose not to call the count, use it as a plea bargaining tool or choose not to prove the predicated conviction if the mandatory occurs because you were convicted once before of a crime, the prosecutor doesn’t prove the prior crime. The prosecutor can get around the mandatory, which is why we have it as a tool. It’s not like we have to necessarily proceed.

Judges can also subvert it. Judge Glynn pointed out a judge in Baltimore City Circuit Court found somebody not guilty on a guilty plea, that was pretty creative. One has to wonder, however, what was the worst outcome, someone getting five years without parole for shooting a gun into a car where three people were sitting, or getting off altogether. So you can have abuses of discretion either imposing the mandatory or by judicial or prosecutorial attempts to get around the mandatory minimum. Personally I favor more discretion for judges, just as I as a prosecutor prefer to have discretion.

With respect to peremptory challenges, I agree with Judge Moylan that once you have Batson you end up logically going down the hill to having no peremptory challenges.

It is amusing, the excuses people give as to why they challenge someone. If the doctor didn’t say he wanted to be excused, did they really find that was a rational basis for that? I mean, that tells you right there the kind of arguments, the kind of situations we see in court.

On the other hand, the idea of getting rid of Batson raises before my mind one of my favorite books and favorite movies, To Kill a Mocking Bird, and that scenario frightens me. So I would not like to see necessarily the end of peremptory challenges. We have to remember, however, in Maryland we have very limited voir dire.

We just had a job application from somebody in New York that’s applying to our office. She started a trial on Monday. I talked to her last night after two days of what I thought was trial and I said, where are you? And she said, we’ve gotten eight jurors. That’s because they have this lengthy voir dire process up there. I think our court system would shut down altogether if it took two days to pick eight jurors.

So in Maryland, or at least in Baltimore City, I can’t speak for the rest of the state, the judge says, ask a few questions, and we say, can you be fair? And they say yes or no. And if they say no, they are usually gone; and if they say yes, we keep them.

Well, I personally would not like to keep a juror whose son just got convicted of first degree murder without asking a few more questions. So I would like to have my peremptory challenges. Elizabeth wouldn’t like the person whose three sons were all police officers in Baltimore City without asking a few more questions, and even then she’s going to get rid of them.

So, you know, if we have a choice between Batson and no peremptories, or no Batson and lots of peremptories, I’m not quite sure what I would choose. I think that I agree with Judge Doory who suggested that we limit the number of peremptories. I even liked that creative suggestion, say it right out why you don’t like that person, I think that would curb some of that. So I actually liked those suggestions.

MR. LIEBMANN:

Let’s proceed now on the mandatory minimum sentencing.

MS. JULIAN:

I enjoyed Judge Motz’s analysis that when you take the power away from the judge to impose the maximum, it’s already there on the plate, it’s been put there by a partial party and that is the prosecutor and it takes away the discretion of the judge. I had not formed it that way in my head, but that does make a lot of sense.

I know in federal court I find it quite odd that defense counsel basically ends up working with the probation agent, that’s all they can do, look for departures. It’s not a real adversarial kind of situation, things are set in stone to begin with.

But with regard to mandatory minimums, my major point is to take the discretion away from the judge I think is not a good thing, and also because if the judge doesn’t have discretion, there is no room to argue. I think that what happens is this, that an individual is not treated as an individual. They are treated as someone who is going to fit in a grid and that’s it, that’s all that’s said.

But I think that judges should always, as the impartial arbiter at the proceeding, should always look at an individual as an individual in that regard, and that way I’d get to argue on behalf of my defendant who I know better than anybody else in the courtroom.

MR. SAAR:

Actually I am in total agreement with the representation that the judiciary has been handcuffed by mandatory sentencing, minimum sentences. I think that it is again a reflection of the reaction of the legislators to the specific horrific fact pattern offenses which in turn then handicap the entire process, the entire system, by restricting the ability to handle matters on an individual basis and, as they say, trying to force everybody into the same type of box because of the facts.

I agree wholeheartedly with the representation that it is a disservice to the justice system the way it is currently fashioned both federally as well as in the state system.

And I find actually it hard to contemplate how the judges can tolerate that particular ongoing pattern and still remain at least pleasantly bemused by the problems of the system, or at least able to talk in a relaxed way about the problems of the system. I understand very well how frustrating that can be if you are restricted to a particular framework as far as sentencing is concerned.

MR. LIEBMANN:

Leaving aside the mandatory minimums in connection with the weapons offenses, which would be very difficult to change, with respect to the drug offenses, the so-called Maryland version of the Rockefeller drug laws, do any of you have any comments on what the effect of those is?

JUDGE DOORY:

The only one point that should be made is that there is a substantial agreement to facilitate the system in that respect. But aside from that, just as many people have pointed out, the way around the system, the box that you’re put in, is very thin.

MR. LIEBMANN:

We come now to peremptory challenges.

MS. JULIAN:

I’m very eager to talk about this.

First of all, I don’t think we are on a slippery slope. I think it’s a mountain and it’s not an easy breezy situation here because we’ve got a long way to slide before I’m giving up peremptory challenges.

The point is this, we have no information to go on before you stand there and try to pick what’s to be an impartial jury, it’s just a matter of semantics, one that will listen to and consider the rights of my client rather than be hysterical and reactive to the nature of the case being a drug case. This is Baltimore City and the person is arrested, they must have done it.

I am perplexed by the situation that the police campaign has chosen to put on buses. If you serve on juries, you can convict the guilty. There is a big gap there in determining who is guilty. It almost leads me to believe that a juror is faced with sitting there being intimidated by the fact that they must make a guilty finding and that if the police did great work, then the person sitting next to me is obviously guilty. So we have a lot of things to do in between before we can mail those postcards out to possible jurors and make that kind of pronouncement. I think it’s more hysteria than anything in Baltimore City.

But what I’m saying is to make it more of a mountain rather than a slope, let’s take a step back and talk about the voir dire process. I know that some judges believe that only four questions are necessary and will not let you ask other relevant questions so you can make an intelligent peremptory challenge.

You can ask the person perhaps whether they are biased against someone who uses drugs. Would it make them more likely to believe that the person committed a crime. Sometimes there is a drug user and that comes out in a case and the issue is whether there was theft. These issues are important as far as whether the person is going to be biased upon the issue of the underlying crime and we can’t just leave that by asking the perfunctory questions and then have a juror that says, I can be fair, and that’s the panacea.

I’ve had jurors stand before the judge and say, my wife was murdered, but I can be fair, and that’s okay, that person will be seated. If I don’t have a peremptory challenge, then I don’t get to second guess, which I think should be done in a situation like that and take a person like that off the jury panel because they may be, for various psychological reasons that are very clear and very predictable, wanting to sit on the jury to overcome bias that they feel they’ve come up with, or to get back at the unknown assailant that was never captured in their case.

There are studies in the writings that were done that favor what I’m saying, that we need to do more in the questions process so that we have an intelligent jury.

Just one quick anecdote. I went down to Kentucky for the Kentucky Advocacy Course that lasted a week and they bring in real live people, people who are not connected to the system at all. I looked over and saw Ma and Pa Kettle and picked them as the two jurors that I would try open voir dire on. That scared me to death. I get to talk to the jurors, I get to have them talk back, that’s unheard of.

What happened was I was picking these two people because I didn’t think I’d fare well in the process never having done it before and I had a built-in excuse, see those people, they never would have believed what I was saying. The issue had to do with a case that had to do with a father molesting his daughter. So there were all kinds of questions that I had to ask, sex questions, of these two old people and I found that after I did some questioning we had more in common, including a similar hearing disorder. I wanted to bring them back home with me. But the thing I’m saying is this: That what we are left to do is judge a book by its cover and you’re forced to be racist, classist, you’re forced to do that and are not able to ask extra questions.

The questions that are on the piece of paper that the judge asks, should be followed up, where you get to ask the person who says, I’ll be fair, more questions about the level of fairness or ask what was the outcome in that case, was the prosecution kind to your family, did the defense — were they mean to you, and all of that so you can get underlying biases.

We don’t know enough about the people that are going to sit in judgment of others when we pick them and I just think that taking away peremptory challenges because of Batson and how far that’s gone would be a great misstep. I’m not saying let’s have open voir dire like in Kentucky. I’m saying that I have seen curtailed over the years questions about the location of where the perspective juror lives. I think that you can make great decisions about impartiality or whether the person understands the issues if you can see where they live. You can also understand the look on a person’s face why they want to get off the jury. If they are in the same zip code, they might live on the same street. You don’t get that information unless you are allowed to ask follow-up questions.

MR. SAAR:

Perhaps a weakness in the system at this point may be that the gathering of information about jurors and the manner in which the biography, if you will, of the individual panel, jury panel members is accumulated and then displayed on the jury lists that are supplied to counsel and to the courts are insufficiently crafted. And in fact, that is the better alternative, to go for a more expansive biography, if you will, of the individual members. A questionnaire could be completed before they even become members of the panel.

The peremptory challenge discussion is really reduced down to the essence, which is that you’re acting blindly with people with very minimal information that you have to discern anything from that you find offensive for your client’s interests.

Again, going down to reducing those numbers of peremptory changes, I think reducing those actually is a useful benefit in the sense of making it very judicious on the attorney using those challenges when there is only a handful to use as opposed to having a plethora or a dozen or two dozen depending on the nature of the offense.

MS. JULIAN:

Just one last thing about that. I really enjoyed the quote from the genius Judge Doory, I think he’s a great legal mind. I agree with him when he’s talking about the level of confidence in the process is important and that also applies to the person sitting next to me at trial.

No matter what happens, if the trial appeared to be fair because they got what they thought was a fair and impartial jury and they got to participate and I got to ask extra questions, then that does a lot for what happens afterwards, whether they are found guilty or not.

JUDGE DOORY:

In doing death penalty work in Baltimore City, I’ve done a fair amount of not the open voir dire that comes about, but individualized voir dire which we have pretty well honed down. It’s honed down now to where individually questioned jurors can be picked in about a week even using the 10 and 20 strikes that are available.

Now, that is an option that’s available and should be used extremely limitedly because of the great cost involved, but it is a solution when problems like this exist.

But there has been some suggestion that we model ourselves after the British system, which causes me some skepticism. There has also been a suggestion that we model ourselves after the California system, which really gives me the willies.

MR. LIEBMANN:

I think the consensus seems to be that reducing the number of challenges may be an acceptable thing if there is a tradeoff in the form of more information, however that information is obtained, whether on a questionnaire or by voir dire.

MS. JULIAN:

I’m not asking for anything. I’d like to keep them the same until we deal with the other aspects first. We cannot change the peremptory number until we have more information.

MR. LIEBMANN:

I understand. I think also on the earlier issue of the trial de novo and high maximum penalty, there was no violent objection to the idea of entry-level drug offenses, whatever might be said about the weapons.

MS. JULIAN:

My only comment that I wanted to add was that other people described addictions, that we had to realize that the cases involve addicts and once they are addicted, I believe that’s a medical issue, but there is no real controversy.

MR. LIEBMANN:

That brings us to the last subject , and that is the police retirement question.

MR. SAAR:

I was actually very troubled about having this included until Mr. Liebmann was kind enough to explain his thoughts on this.

What it amounts to is that with what we’ll call a generous pension plan, the officers have at this point as far as Baltimore City is concerned an ability to retire after 20 years of service and get a pension substantially of I believe it works out to about 60 percent. There is also an additional incentive to hang around for an additional couple of years, a deferred retirement option plan basically as a drop program. In essence what it amounts to is a fiscal incentive to stay around and keep their expertise with the department.

Mr. Liebmann’s point was that the effect of a generous pension plan encourages those with experience in the department, investigative experience and practical experience, in terms of the constitutional rights of individuals, of performing the usual stop and frisks in the appropriate legal matter, in the entry and search and seizure warrants, and making those very solid bases for bringing cases to court is lost when you start having people with 20 years of experience leaving the department.

In fact, we are in fact as a result of perhaps I would venture to blame, if you will, the former police commissioner Frazier in terms of a rotation policy, which started a chain of events in the department that we are feeling even today.

That is, for your information if you aren’t aware, intentionally rotating out experienced detectives from the homicide unit of the Baltimore police department for the beneficial purposes, of giving minority officers and younger officers in the department an opportunity to gain the experience which otherwise you would not necessarily have had, but for retirements out of the homicide division, and that was fairly rare because people stayed in that part of the department for quite some time often because of their proficiency as investigators.

And in that particular vein in terms of the proficiency, you don’t gain proficiency in that vein of investigation without having worked a substantial amount of hours and days and weeks and years with even more experienced investigators and learning the tricks of the trade.

With that rotation policy, the retirement incentives for the officers are that the officers are now being asked to go back to parole from the homicide division who had been at the epitome of their profession, and the pinnacle of their profession, were now asked to go back and do normal patrol work, which often times would be an insult to their abilities, if you will, and many submitted their retirement papers and took their experience out.

Baltimore County was the beneficiary of six or seven homicide detectives who had to do a stint, of course, in patrol after going through their training, but then immediately moved into homicide investigation in Baltimore County.

The whole point of this particular long drawn out explanation is that a generous retirement plan at 20 years of service with the department does in fact take an appeal off people who want to only spend 20 years with the police department and then go on to do other things with their lives, the experience that comes from that 20 years of working for the police department, and we see that at this point in time with the Baltimore City police department.

We have patrol officers who on a routine basis have been looking kind of young to prosecutors. They will ask: Well, how long have you been on? Well, two years, three years.

We’ve got sergeants with three or four years. Sergeants who used to have to have from five to seven years of experience before they actually qualified and were considered to have enough experience to be supervisors of line officers. Well, now it’s been diluted down in terms of that experience to three and four years and you barely are getting the hang of the job at that stage based on what I personally know from police contacts and also the word from the more veteran police officers that I’ve spoken with in the department recently.

The same goes for the supervisor levels on up from that. They have lieutenants who used to take approximately seven to ten years to become a lieutenant who are now lieutenants at five years of experience with the department, five and six years.

You’ve got majors who’ve made major at ten years when that was just a phenomenal rise so-to-speak and it’s not because of ability is the point, it’s because of the vacancies at the upper echelon.

The fact that we’ve changed police commissioners six times since 1999 has also had a deletrious effect — one interim 57 day commissioner took out five colonels from the department who had collective experience of somewhere in the vicinity of 110 yo 120 years of police management and thus made vacancies and moved people up.

Of course the net positive in the social vein is you do have people having opportunities now to take over leadership and management of the police department, but you lose the basic policing institutional ability by taking out people prematurely, especially if there aren’t incentives to keep them in place.

Part of it is opportunity. If you don’t have opportunity in the department, you’re going to lose people. Part of it is the expectations that you have an opportunity to move into specialized units to further fulfill yourself as a policing officer, mostly in the area of detective investigations for many officers.

Then a handful are selected who have demonstrated by either an examination process or other on-the-street processes of leadership ability that comes — that doesn’t come necessarily from a book and studying and examinations, that comes from demonstrating often times the ability. Those are things that you’d like to hope to retain. But we do have a problem in that regard.

I don’t blame it so much on, at this point, the early retirement abilities of officers because you have to also take it into consideration from the police officer’s standpoint.

I don’t know how many of the judges are particularly aware of the workmen’s compensation statute, but two items I found pretty curious as I was trying to do research.

The workmen’s compensation laws provide for high blood pressure as a disability and a presumed disability that stems from their livelihood for police officers and for firefighters and gives you an ability to get out if you’ve got that condition and attribute it back to your employment. And I find that — actually it was astounding to me when I first ran across it in another context, but it is something that is already recognized as a reason.

Would you want people who have high blood pressure with the potential to stroke out also responding with sirens or into a physical confrontation where you as a citizen are expecting a primed officer, a primed and conditioned officer to make an appearance and maybe save the day for you if you’re a victim of crime? I think not would be the answer. You’d want somebody who is in their Oriole baseball prime as opposed to someone who potentially was on a ventilator so-to-speak at a hospital.

The inexperience of the officers that do exist is a training issue of huge proportions. I don’t know how many times I’ve actually appeared before Judge Prevas and explained one agonizing Friday evening I can recall where he was trying to rail against the particular pair of detectives I had and the explanation that I reached for was the digenesis of what I call the problem: The rotational policy and the series of different rotational policies that are variations thereof that have since befallen the police department.

The problem that I saw was that it was especially a training issue, especially in the homicide or serious crime investigations where you need the maximum amount of experience to get the best results out of an investigation, and you don’t have that level of expertise either at the patrol level or at what we’ll call the beginning investigative or detective levels because we’ve got the same thing that I was just describing as the supervisor problems. Supervisors have insufficient personal experience on the street.

You’ve got detectives who are now made detectives who were only patrol officers two years ago when they first started and now they are a detective because of the vacancy problem in the department and they need an abundance of training which is not currently offered even with their academy training.

Academy training is 16 weeks, plus another 10 weeks of field training with an experienced — a field training officer. In that 16 weeks they learn everything they, theoretically speaking, need to know from an academic sense of how to be a police officer. In that they probably do not spend more than a week or two weeks time frame learning about the laws and certainly not to any degree of sufficiency in terms of constitutional law and/or the basics of what we are concerned with here, which are how to put together cases that stand up to judicial scrutiny that is required, and it is expected of them.

Their in-service training program is also in my mind fairly deficient from that standpoint that it encompasses quite a number of things during the week that they have to requalify for recertification and they barely broach, if it’s one day, anything resembling a comprehensive examination of current developments in constitutional law or things to help them improve their abilities to be the police officers that we all expect them to be.

MS. JULIAN:

I would just like to add that he has accurately and adequately discussed this issue.

MR. LIEBMANN:

I want to thank all of you for your participation in this exercise. I think there is somewhat more agreement than I expected to hear from nearly everybody here. I hope this does some good and has some impact, and I think at least you know more about each other and feel that the ability for further discussion on these things may be a good thing in and of itself.

(Whereupon, the symposium was concluded.)

Posted in: Criminal Justice, Special Report