Active role for judges is urged

Some suggest courts should move quickly on evidence disclosure

July 18, 1999|By Caitlin Francke and Scott Higham | Caitlin Francke and Scott Higham,SUN STAFF

Several criminal justice experts are calling for Baltimore's judges to swiftly punish lawyers who violate laws on the disclosure of evidence after revelations that such problems are threatening justice in the city's courts.

For years, problems with evidence disclosure, known as discovery, have persisted in the city's courts. But judges have been loath to sanction prosecutors -- or defense attorneys -- when they fail to comply with law that sets strict timelines for turning over material.

"The court has to take the lead in each element of coordinated case management," said Jervis S. Finney, head of the Maryland Criminal Justice Administration Institute, which is studying how to reform Baltimore's courts. "The court is the only entity which can enforce its will."

The calls come in response to a two-part series in The Sun that detailed how evidence problems in the city courts have led to a wrongful conviction, trial delays and freedom for suspected criminals.

In one of the cases cited in the newspaper series, lawyers for four defendants charged with running drugs in a Southwest Baltimore neighborhood asked the prosecutor at least 13 times for evidence. Eight months after the arrests, the lawyers appeared before a circuit judge, complaining that they had not received any evidence in the cases. The judge simply noted the lack of evidence as a reason to postpone the case.

The prosecutor went unsanctioned and four months later still had not turned over the evidence. The case against the four was dismissed in February, infuriating neighbors concerned about the safety of their neighborhood.

The example illustrates what has emerged in recent years as the criminal caseload has skyrocketed: the piecemeal exchange of evidence, no consistent discovery policies and little-heeded deadlines.

`Accepting mediocrity'

"When I started practicing 25 years ago, the judges wouldn't tolerate it," said Jerome E. Deise Jr., a former public defender and now a professor at the University of Maryland Law School. "They are tolerating it. They are allowing it to happen. They are accepting mediocrity at best."

The court experts say that judges must hold lawyers accountable early on in the process so cases against criminal suspects aren't dismissed. Attorneys who violate the laws should be held in contempt of court, fined or, at the very least, sanctioned and reprimanded, they say. Punish the lawyers, they say, not the public.

Part of the problem has been that judges don't find out about discovery violations until it is too late to salvage the case, said John H. Lewin Jr., coordinator of a group seeking reform in the city courts. Requests for hearings on discovery disputes have gone unheeded until the day of trial, he said.

Lewin said he wants a judge appointed to oversee discovery disputes so that sanctions, if necessary, can be swiftly applied.

"Judges start doing that, and you will find that people will move heaven and earth to comply with discovery orders," said Lewin, who heads the Criminal Justice Coordinating Council, formed after charges against murder suspects were dismissed because of trial delays. "No professional person wants a judicial sanction on their record."

Judges bristle at the idea of fast and hard rules for punishing lawyers. Discovery issues are complicated, they say. Overburdened prosecutors can't always make deadlines. Some disputes are subjective: The prosecutor and the defense may have different definitions of "exculpatory" evidence, material that may show others committed the crime, in a case.

Discovery judge suggested

"What people want to see occur is a simplistic, immediate response to a complicated issue that requires judicial discretion and balancing," said Circuit Judge David B. Mitchell, in charge of the city's criminal docket. "I don't want to see judges stampeded into that process."

He said he and others are working on streamlining the discovery process, including considering the appointment of a discovery judge.

"The discovery issues, like every other issue, are being addressed and being resolved," Mitchell said.

By law, within 25 days after arraignment, prosecutors must disclose arrest warrants, eyewitness identifications and any evidence that may help the defense. The law also sets deadlines for additional disclosures.

The Sun's series detailed the case of Antoine Jerome Pettiford, who was wrongfully convicted because evidence implicating other suspects was withheld, and cases against seven other defendants in which criminal charges were dismissed because evidence was not turned over by prosecutors.

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