For want of a phone book, a man's freedom is lost

THIS JUST IN...

May 16, 1994|By DAN RODRICKS

There are several startling aspects to the criminal prosecution of Steven Edward Hess, not the least of which can be summarized by this question: Anybody here ever heard of the Yellow Pages?

Had a prosecutor in Anne Arundel County picked up the phone book two years ago -- hey, nine out of 10 use it, right? -- the state might have been spared the expense of a jury trial, and Steve Hess might have been spared nearly three months in prison. The Maryland Court of Special Appeals said as much last week. In reversing Hess' conviction on bad check and theft charges, the court criticized the prosecution for working harder to get a conviction than to secure justice. And the flaw in prosecutorial conduct -- and, to an extent, in Hess' trial defense -- involves a phone number. More on that later. First, some background.

Steve Hess, now in his late 20s, used to have trouble keeping out of trouble. Back in the mid-1980s, he wrote some bad checks in Baltimore County and Prince George's County and got caught. He was eventually placed on probation and ordered to pay about $20,000 in restitution. Since 1989, that's what he's been doing: behaving himself and paying restitution. He's returned $11,000 so far. He earns his keep in the printing business. In fact, he has his own small company.

Two years ago, Hess ordered some film work from a desktop publishing company in Arnold. He gave the company some artwork on computer disk and asked that it be transferred to film. His plan was to sell the completed film work to a company in the District of Columbia, H&H Graphics.

A few days later, Hess picked up the film work in Arnold, wrote a check for $700 to settle the bill with the desktop publisher, then drove straight to H&H Graphics.

After he arrived at H&H and delivered the film work, the president of the company told Hess the material was useless. The film had been processed to the wrong specifications. H&H couldn't use it and wasn't going to pay for it.

So what did Hess do? He called his bank, the Maryland National branch in Woodlawn, and ordered a stop payment on the check he had written that morning. Then, he told the desktop guy what he had done.

What did the desktop guy do? He got upset, at some point calling the State's Attorney's Office in Anne Arundel County to complain that Hess had stolen the film work from him. The check had been stopped, the film hadn't been returned. To the desktop guy, Hess was a thief.

About six months later, Hess received a call from a woman in the Anne Arundel State's Attorney's Office. She reported that the desktop guy was trying to press criminal charges. "I explained my side of the story," Hess recalled recently from prison, "and she said it sounded like a civil case, if any."

Too bad that judgment did not hold.

In October 1992, Hess was charged with writing the $700 check with the intent of stopping its payment and with stealing the film work from the desktop guy. Hess claimed he was innocent; he only stopped the check after he learned the film work was useless. Sounds like a typical argument between businessmen, doesn't it?

Well, a jury actually was seated for this thing, and a trial was held. The defense -- later described as "feeble" in an appeal -- presented testimony from H&H Graphics that Hess had used the company's phone to make a call while he was there that morning. The call was placed about 9:30 a.m., some 2 1/2 hours after Hess had picked up the film work in Arnold. Records showed the call was made to 410-944-5512.

"It should have been obvious to all concerned -- defense counsel, the prosecuting attorney, the judge and the jury -- that if 944-5512 is the telephone number of the Woodlawn branch of Maryland National Bank, [Hess] did, in fact, stop payment only after he had delivered the film to H&H Graphics and therefore no rational inference can be drawn that he was guilty of issuing the check with the intent, at the time of delivery, to stop payment on it," the Court of Special Appeals said last week.

Problem was, no one established clearly at trial that 944-5512 was the number for Maryland National. Seems pretty stupid, doesn't it?

"We had no difficulty in verifying [the phone number]," said the Court of Special Appeals. "Indeed, it is readily apparent from either the white or yellow pages of the telephone directory of the Baltimore metropolitan area or easily ascertainable by a telephone call to any branch office of the bank."

Even so, Hess was convicted and sentenced to 10 years in prison, with all but three suspended. And get this: Because the conviction violated conditions of his probation from the mid-1980s, a Prince George's County Circuit judge, G. R. Hovey Johnson, refused to cut Hess a break while he appealed and sent him to prison, adding five more years to his time. That was in February.

Hess hired a new attorney, Charles G. Bernstein, to handle his appeal. After considering Bernstein's sound arguments, the Court of Special Appeals reversed the conviction last week. As of press time, Hess was still waiting to be processed out of prison.

In its opinion, the court seemed to express annoyance that the case had gone this far and, quoting an old Supreme Court decision, warned against a retrial. "We trust," the appellate judges said, "that the prosecutor will give serious consideration to whether further prosecution is consistent with his duty, as a representative of the sovereign, 'to seek justice, not merely to convict.' " Wise words. Now, get Steve Hess out of jail!

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