City judge jailing poor defendants who lack lawyers Practice criticized by some legal experts

challenge considered zTC

October 25, 1998|By Caitlin Francke | Caitlin Francke,SUN STAFF

Damon Davis nervously walked into Baltimore Circuit Court two weeks ago knowing he faced drug charges that could put him behind bars for 20 years.

What he didn't know was that he would go to jail that day for a different reason: He had no attorney.

Baltimore Circuit Judge John N. Prevas has been jailing defendants such as Damon, 17, for at least two months because they showed up for trials without lawyers -- at least 20 were incarcerated, said an attorney who plans to challenge the practice.

Most spend hours behind bars. One spent a week in jail, court records show.

Legal scholars and lawyers say Prevas is violating the justice system's fundamental principles.

"It is plainly unconstitutional to jail someone because he cannot obtain a lawyer," said Michael A. Millemann, a professor at the University of Maryland School of Law who plans to challenge Prevas' actions.

Yet Damon was one of two people handcuffed Oct. 14 and ordered into custody by Prevas for not having attorneys.

"I didn't know what to do. I didn't know what to say," said the 10th-grader, who is in foster care. "I have never heard that if you don't have anyone to represent you, you can get locked up. [The sheriff's deputy] said, 'You have to have someone to represent you before you go before Judge Prevas. He does it every time.' "

The way Prevas sees it, he is aiding the administration of justice -- either by pushing defendants to get lawyers or imposing emergencies on a public defender's office that otherwise may not act for days.

"It may be unorthodox, it may be unusual. If the Court of Appeals ever says it violates a rule, I will cease and desist," he said Friday. "I view this as analogous to coming to court drunk and not being able to conduct business. I found if you suddenly alter their perception of the stakes of going to trial, they begin to focus on the importance of counsel."

Prevas has no idea how many defendants he has jailed for lack of counsel. "I don't count," he said. He only jails "exceptional" cases -- in which defendants are intentionally delaying a trial, he says, or not making enough of an effort to get a lawyer from the public defender's office, which provides legal representation for the poor.

Lawyers found

In many cases, he is successful in getting them representation. Damon and Bernard S. Anderson, 47, the man jailed 20 minutes after him, ended up getting aid from the public defender's office.

But first, Anderson had to spend the night in jail. He had come to court with a letter that showed that he had tried to get a public defender but got to the office too late for the court date.

Prevas -- a former narcotics prosecutor appointed to the bench in 1986 -- didn't care whether Anderson had tried. He refused to read the letter.

"I don't read junk mail from the public defender's office," the judge said, according to a transcript of the proceeding. "I'll give you a bail hearing when you get a lawyer."

As sheriff's deputies prepared to take Anderson to the lockup downstairs, Prevas continued: "Get on the phone. Call the public defender's office. Call your family. Get representation. When you get representation, you'll hit the street. As long as you are going to wander aimlessly through the world delaying this trial because of your passivity, then you should do it in the lockup."

Whatever Prevas' motive, his method is wrong, experts say.

Prevas said he has the power to revoke a person's bail. By law, defendants can remain free unless they are charged with a capital offense or represent a flight risk.

But no court has ever said that lack of counsel is proper grounds for revoking bail, said Jerome E. Deise Jr., a professor at the University of Maryland School of Law. Defendants have the right to defend themselves. Prevas could find that the defendants had waived their right to an attorney and go forward on a trial instead of jailing them, he said.

"This is one of those clear situations where the ends clearly do not justify the means," said Deise. "You can't incarcerate people because they are indigent and can't afford an attorney. [Prevas] depends upon the public defender's office to give in because they are caring people. It's essentially a form of blackmail. It's a form of bullying."

The public defender's office is so short-staffed that it cannot provide attorneys for two new felony drug courts, leaving 350 indigent defendants without lawyers. Court officials are working out a plan to get representation for defendants who face speedy-trial deadlines. Such cases could be dismissed because the state's rule that defendants be tried within 180 days of their first court appearance.

Jailed for a week

Two weeks ago, Prevas released Melvin S. Daniels only after a public defender agreed to represent him. Prevas had jailed Daniels, 48, for a week because he had no attorney and Prevas thought Daniels was drunk, court records show.

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