Howard court system called unfair Routine use of grand juries cheats accused, lawyers say.

June 24, 1991|By Norris P. West | Norris P. West,Evening Sun Staff

The woman now lives in Texas, but she was a 17-year-old Centennial High School student when school bandleader and teacher Donald B. Cohen gave her music lessons 10 years ago. Last August, she returned to Howard County and told police that Cohen had sex with her in 1981.

Following their normal procedure, county prosecutors took her statement to a grand jury, which returned an indictment against Cohen on Feb. 7.

But Jonathan Scott Smith, Cohen's lawyer, says Howard County's routine use of grand juries is an abuse of the judicial system that cheats defendants out of the right to confront their accusers early in the process and get doubtful charges dismissed without the necessity of a full-blown trial.

In any other Maryland jurisdiction, he said, the state's attorney's office might have allowed Cohen a preliminary hearing, where the prosecution and defense debate the merits of charges.

Under Maryland law, a person accused of a crime has the right to request a preliminary hearing within 10 days. The hearing is a sort of mini-trial, where both sides have the right to call and cross-examine witnesses. Defense lawyers like preliminary hearings because they give the defense a look at the prosecution's evidence at an early stage of the process.

In Howard, Smith said, there are no preliminary hearings. County prosecutors take advantage of a provision in the law which eliminates a defendant's right to a preliminary hearing if a grand jury issues an indictment before the hearing can be held. The case then goes directly to trial.

Smith's complaint is one that defense attorneys and public defenders in Howard County have made for years. They say the state's attorney abuses its grand jury privileges. And a county judge expressed concern about the process last week.

"Howard County systematically obtains grand jury indictments to prevent preliminary hearings from ever occurring," Smith said last week during a motions hearing for Cohen in the county's Circuit Court.

In Baltimore, State's Attorney Stuart O. Simms said he, too, bypasses preliminary hearings for certain crimes -- mostly in personal injury, sexual assault and child abuse cases to avoid traumatizing victims so soon after the crime. He said there are preliminary hearings, however, for most property offenses.

The grand jury itself is an institution designed, in part, to protect citizens against arbitrary prosecutions. Prosecutors take their evidence before a panel of 23 citizens, who can then vote to indict a defendant or not. But the defendant and his lawyer are not present.

Smith, a former Baltimore County prosecutor, said the grand jury hearings are secret and, in Howard County, basically consist of police Cpl. Joseph Collins reviewing police reports written by other officers and the deputy state's attorney. Collins, he noted, never is involved with the cases.

"He's like a TV anchorman," the lawyer said. "He testifies before the grand jury about cases that he doesn't investigate. Collins will never testify at trial because he has no knowledge of the cases."

Smith called to the witness stand Dwight S. Thompson, the deputy state's attorney who handles the county's grand juries, and asked him when his office last allowed a preliminary hearing.

Thompson, who has held his position for nine years, said it has been "six or seven years" since that last happened.

"They normally have been indicted by a grand jury before there is a preliminary hearing," he said, adding, "There's been no denial of anyone's rights."

Although state law supports him, defense attorneys in Howard say his office violates the spirit of the law.

"The system works to give the state's attorney time to indict," said Carol Hanson, supervisor of public defender offices in Howard and Carroll counties. Do I think the system's fair? No. Is the system legal? Yes."

Hanson, a former assistant state's attorney, said her defendants routinely request preliminary hearings after being charged with felonies but always are indicted. She said her office has challenged that procedure in Circuit Court to no avail.

Smith had no success either. Judge James B. Dudley upheld Cohen's indictment last Wednesday, although he expressed concerns about the process.

"There are important consequences to the accused from the state's adoption of a policy not to conduct preliminary hearings," Dudley said. "There are potential adverse consequences to the accused from the state's adopted policy of not calling witnesses who do not have personal knowledge of the case."

Michael Millemann, an associate professor at the University of Maryland School of Law who teaches criminal procedure, said the process is unfair.

"There are a significant number of cases dismissed at preliminary hearings," Millemann said. "I think the grand jury process affords significantly fewer protections. By and large, it's a rubber stamp for the prosecution."

Dudley added that issue of avoiding preliminary hearings should be addressed by the Maryland Bar Association and state lawmakers.

Cohen, meanwhile, has been reassigned to a non-teaching job in the school system pending the outcome of his upcoming trial.

Lawyers call Howard's routine use of grand juries unfair

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