A Rogue Judge and a Runaway Jury

TIM BAKER

July 26, 1993|By TIM BAKER

When Circuit Judge Kenneth Lavon Johnson swore in the new Baltimore City grand jury last year, he gave it a startling charge. He told it to investigate the integrity of narcotics law enforcement in the city.

The judge said he had seen thousands of low-level narcotics offenders in his courtroom. ''But not a single case involving a drug dealer at the wholesale drug-dealing level.'' Businessmen, bankers, accountants and lawyers reaped vast profits from the drug trade, but, he said, were never investigated or prosecuted.

''My charge to you today,'' Judge Johnson instructed the grand jury, ''is that you look into and determine the reason . . . wholesale drug dealers are not being pursued and brought to justice.''

He promptly repeated his accusations in an article which he wrote for this newspaper. In it, Judge Johnson, an African-American, added the assertion that the unindicted major importer-wholesalers were ''usually white.''

Judge Johnson's instructions put the spur to a runaway grand jury. Acting without any legal advice, it listened to disgruntled police officers complain about unrelated incidents in which narcotics investigations had not been pursued to their satisfaction. In some cases they claimed prominent people had been involved. None of the witnesses produced any evidence to support suspicions that justice had been obstructed.

Nevertheless, in March, the grand jury publicly accused the city's top prosecutors and police officials of ''collusion'' to block drug investigations of prominent local figures, of creating ''an organized structured effort'' to protect major dealers' illicit gains, and of perpetuating ''a true travesty of justice.'' A sealed report listed the specific matters about which the officers had voiced their unsubstantiated suspicions.

Judge Johnson immediately applauded the grand jurors' ''outstanding'' investigation. In a public letter he told them, ''I am in complete agreement with all of the findings.''

Of course these unsupported accusations made headline news. They were heatedly denied by State's Attorney Stuart O. Simms, by his predecessor Mayor Schmoke, and by Police Commissioner Edward V. Woods. But until these charges are reviewed and resolved, they will hang over the heads of a number of hard-working prosecutors and police officials.

Separate and independent reviews were promptly initiated. The U.S. attorney's office examined the grand jury's accusations and decided they didn't deserve federal investigation. As usual, the office refused to comment. But the U.S. attorney's evaluation of the grand jury's report is now apparent. When he spoke before the Maryland State's Attorneys Association last month, he pointedly praised Mr. Simms' professional performance and integrity.

The Maryland state prosecutor, however, must review every one of the allegations made before the grand jury. He began an investigation in March. But he has a small office, and unlike this grand jury, he will act only if he finds evidence.

He now intends to issue interim reports as he completes each stage of his investigation. The first may come next month. But he will not complete the entire review until next spring, at the earliest.

Even then, the state prosecutor will only determine whether police or prosecutors have criminally obstructed justice. Neither he nor anyone else will address the broader public issue of whether city law-enforcement officials have deliberately ignored big-time drug dealers, as Judge Johnson charged.

This is unfair. Mr. Schmoke and Mr. Simms have together run an office in which Baltimore should take pride. They have built cooperative arrangements with the U.S. attorney that serve as a national model. Under these procedures, the state's attorney sends the investigation and prosecution of most major drug dealers to the federal system because it has vastly greater resources and more effective legal tools, such as IRS agents, a witness-protection program, and mandatory life sentences.

So, in fact, Judge Johnson drew exactly the wrong conclusion from his experience. If he had taken the time to ask Mr. Simms or any of his own colleagues on the bench, he would have learned that big-time drug dealers rarely appear in state court because competent state prosecutors realize wholesaler-importers should usually be investigated, charged, tried and sentenced in the federal system.

Indeed, Messrs. Schmoke and Simms have sent many major cases to the U.S. attorney. Some have even been tried in federal court by their assistants acting as specially designated assistant federal prosecutors.

Judge Johnson refuses to answer questions about his conduct in this matter. He claims grand jury secrecy precludes him. That restriction, however, does not cover his own behavior, did not prevent him from publicly agreeing with the grand jury's inflammatory accusations, and presumably will continue only until he decides to write another newspaper article on the subject.

The harm done here goes beyond the damage inflicted on the professional reputations of dedicated public servants. A rogue judge and a runaway grand jury have misled the public about the real problems of narcotics law enforcement.

Drug trafficking doesn't flourish in our city because of incompetent, dishonest or racially-motivated investigations and prosecutions. It plagues us everywhere in this country because of the enormous demand for drugs. As long as people want to buy heroin and cocaine, white and black drug dealers will supply it.

Until education and treatment reduce consumption, law enforcement can only try to hold the line. That assignment is hard enough without unsupported accusations from a misguided grand jury and empty rhetoric from an irresponsible judge.

Tim Baker was the U.S. attorney for Maryland from 1978-1981. During his term, Mr. Schmoke and Mr. Simms both served as assistant U.S. attorneys.

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