Judge takes his case to court of talk radio Byrnes tells public why he sentenced Sgt. Pagotto to prison

March 12, 1997|By Kate Shatzkin | Kate Shatzkin,SUN STAFF

Baltimore Circuit Judge John Carroll Byrnes has been taking calls from Pam in Towson and Brian in Baltimore and Ray in Catonsville. He has ventured where judges rarely tread -- into the court of public opinion, to explain personally his decision in the highly controversial case of city police Sgt. Stephen R. Pagotto.

Since sentencing Pagotto Feb. 27 to three years in prison for involuntary manslaughter and reckless endangerment, Byrnes has appeared on two radio talk shows to answer questions from hosts and citizens about why he would put a 15-year officer behind bars. He has sent his eight-page sentencing memorandum to anyone who wants it.

Last week, at the urging of some colleagues and friends, he was on WBAL radio with Ron Smith answering citizens' calls. Yesterday, the judge discussed the case for an hour on the Marc Steiner Show on WJHU-FM.

The unusual appearances have raised some eyebrows and focused a spotlight on the isolated and often wrenching business of sentencing.

Judges frequently find themselves in a quandary -- making decisions of public interest, yet unable to answer public questions. Most explain their reasoning from the bench, but decline to speak about cases outside court.

"The issue of judges speaking out, amplifying what they have said from the bench, is a very difficult area," said Robert Payant, president of the National Judicial College in Reno, Nev.

Byrnes said he had decided to appear on the talk shows for the first time in his 15 years on the bench because he was concerned that the public did not have the full picture of the dynamics of the case. Pagotto's conviction was the first one in memory of a city officer's shooting in the line of duty.

"Do I just sit?" he asked yesterday. "I think a judge can serve the public good by explaining what it was. I think in a case like this, you're part of the process of expressing public policy."

Pagotto was convicted Dec. 17 of shooting Preston E. Barnes, 22, after stopping his car in the 2600 block of Kirk Ave. on Feb. 7, 1996. The sergeant testified that Barnes, who Pagotto's lawyer said was on a drug-selling mission with two passengers in the car, did not respond to his commands to get out. Pagotto approached the car with weapon drawn and reached in; the car moved away and Pagotto said his gun went off, killing Barnes.

Reading from his opinion on the day of sentencing, Byrnes told a packed courtroom he was imposing the prison term "to assure the public, including the police, that we continue to honor life's value." In so doing, he adopted the minimum sentence under Maryland's nonbinding sentencing guidelines, which called for three to eight years.

The judge rejected the recommendation of a probation investigator that Pagotto, 40, serve no time. Pagotto is free on $75,000 bail while he appeals the sentence, which could take a year.

The sentence has since been the subject of columns and commentary throughout the city, alternately condemning Byrnes for harshness and praising him for courage.

'Cautious and conservative'

Maryland's code of judicial ethics says that judges should avoid discussing individual cases pending before them. Byrnes may have to make further decisions in the Pagotto case. Henry Belsky, Pagotto's lawyer, has said he intends to file a motion for Byrnes to reconsider the sentence.

But Byrnes said that since he has not received a motion to reopen the sentencing, he is complying with the rules for judges. He said he has not commented on whether he would reconsider his sentence and has been careful to make most of his comments general. "I think judges ought to be cautious and conservative about [speaking], and I have been cautious and conservative," he said.

Robert M. Bell, chief judge of the Maryland Court of Appeals, said he was unaware of Byrnes' talk show appearances and thus could not comment specifically on them. He said that in general, he encourages judges to speak about their work to interested groups without going into specific cases.

"A judge has a right to try to educate the public about the judiciary and the functions of the judiciary," Bell said. "I encourage judges to try to explain the process. It's the drawing of the line that's the problem."

Gary McLhinney, president of the Baltimore chapter of the Fraternal Order of Police, which has paid for Pagotto's defense, said he found the judge's talk show appearances inappropriate. "I think it shows the judge feels compelled to try to justify what the vast majority of people believe was an inappropriate sentence," he said.

Belsky would not comment, other than to say: "We'll deal with that in an appropriate forum."

Talking and listening

David Luban, a professor who teaches legal ethics at the University of Maryland Law School, said he had no trouble with the judge's talking about the case. But listening to new views on it when he may still have decisions to make might pose a problem, Luban said.

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