New judge to focus on discovery

Assignment aims to solve problems in city Circuit Court

`Making a positive move'

Evidence disputes, improving the process are targets of action

September 17, 1999|By Caitlin Francke and Scott Higham | Caitlin Francke and Scott Higham,SUN STAFF

A judge will be appointed to resolve disputes over the exchange of evidence in Baltimore's Circuit Court, signaling a crackdown on persistent problems that have led to a wrongful murder conviction, trial delays and case dismissals.

During a meeting on Wednesday, Judge David B. Mitchell, in charge of the city's criminal docket in Circuit Court, informed the prosecutor's, public defender's, and clerk's offices that he plans to name a judge to improve the process of sharing evidence, according to several participants. The process is known as discovery.

Supervisors of the Office of the Public Defender, who have long complained that city prosecutors and police often disregard evidence laws, applauded the decision to name a judge to preside over discovery disputes.

"We're making a positive move in the right direction," said Elizabeth L. Julian, the city's acting district public defender. "We look forward to using the rules that have been long established regarding discovery."

A defendant's right to examine evidence is embodied in the Constitution. Under state law, prosecutors must turn over evidence to criminal suspects within 25 days of arraignment, particularly if it helps the defense. The state law also requires prosecutors to continue to turn over evidence as it surfaces before cases go to trial.

But problems with disclosing evidence have troubled the city's courthouse for years. Few meaningful steps have been taken to correct them.

In a series in July, The Sun reported that prosecutors and police have repeatedly violated discovery laws. Sometimes, they are slow to turn over documents, which clogs courts and jails with defendants who are reluctant to plead guilty until they see the evidence, the newspaper said. Other times, prosecutors and police failed to turn over evidence at all.

In the past two years, The Sun found, evidence problems led to a wrongful first-degree murder conviction, trial delays and dismissals of serious criminal charges in at least seven cases. The cases were dismissed because judges found that prosecutors violated the rights of the suspects, one of whom had been charged with two counts of attempted murder. In response to the series, politicians, lawmakers and legal experts called for reforms of the court system to ensure that defendants receive fair trials and that criminal suspects are not put back on the streets because their rights had been violated.

State's Attorney Patricia C. Jessamy rejected the series' findings and told state legislators the problem was "tiny." Her statements also contradicted a federally funded 1998 study of the Circuit Court system which found that the failure to turn over evidence represented one of the most serious issues facing administrators.

The study indicated that prosecutors were disclosing evidence in a "piecemeal" fashion.

"All parties agree that the absence of a clear, consistently followed protocol in this area creates a substantial impediment to the early and fair resolution of criminal matters," the study noted.

Jessamy, who refused repeated requests by The Sun to discuss discovery problems in her office, has since asked her prosecutors to document when evidence is provided to defense lawyers and to detail if police do not turn over records. She attributes much of the discovery problem to understaffing in her office.

Haven H. Kodeck, Jessamy's deputy, said this week a discovery judge might help streamline the system, resolving disputes over the evidence before juries are picked to hear cases.

"Hopefully, it will expedite issues," Kodeck said.

The discovery judge is expected to start next month, but Mitchell released few details about the post. He said he was not prepared to publicly outline the plan, and he declined to say whether he has selected the judge or if he has determined how much time that judge will devote to discovery disputes.

"We'll be in a position to announce something in the next two weeks," Mitchell said. "I am not going to make any comment until I am satisfied with what we are about to do."

Part of the plan Mitchell is expected to announce includes reprogramming of computers in the clerk's office to alert administrators when lawyers are fighting over evidence. Problem cases will be scheduled for a hearing before the discovery judge.

Kodeck said scheduling of hearings might prompt prosecutors and defense lawyers to resolve the disputes. He said Mitchell "seems to feel that the majority of the cases will be disposed of prior to the hearing."

Public defender Julian said the move toward resolving evidence problems will create a more level playing field between prosecutors and defense attorneys. Julian's hope: fair trials and less crowded court dockets.

"I am encouraged," she said.

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