Warrants often issued improperly

Court clerks found to bypass judges in seeking arrests

Attorney general's survey

Counties' practice could prompt hundreds of appeals

March 22, 2002|By Jeff Barker | Jeff Barker,SUN STAFF

Clerks for nearly half of Maryland's 24 circuit courts have been improperly issuing arrest warrants without the involvement of a judge, in a practice that could form the basis for hundreds of appeals by criminal defendants.

The discovery was made by the state attorney general's office, which recently surveyed all of the court clerks after a complaint that one had erred in issuing a warrant.

The survey found that "in almost half of the counties," clerks have been issuing warrants by themselves upon the request of the local state's attorney in cases for which a criminal information -- a form of bringing charges -- had been filed, according to a March 14 memorandum to the clerks from Assistant Attorney General Julia Andrew.

"The practice should be discontinued immediately," Andrew's memorandum said.

The finding "could potentially have a dramatic impact," said Larry A. Nathans, president-elect of the Maryland Criminal Defense Attorneys Association.

"Certainly, persons arrested in jurisdictions where this illegal practice was occurring will try to suppress evidence seized from them or statements obtained from them as a result of illegal arrests," Nathans said. "This discovery will also affect completed cases, as it is likely that convicted persons will seek to have those convictions reviewed if the evidence obtained after their arrest was critical to the state's case."

Andrew told the Associated Press that she wrote the memo after conducting a survey and learning that clerks in Allegany, Caroline, Cecil, Dorchester, Frederick, Harford, Montgomery, Somerset, Washington and Wicomico counties were in the practice of issuing faulty arrest warrants. Her memo suggested there might be confusion over the rules.

"We can emphatically say that we do not send out warrants without judges' signatures," said Frank M. Conaway, clerk of the Circuit Court for Baltimore City. "It's something we feel should not be done."

Andrew's review is believed to have its roots in a Frederick County case. Circuit Judge Julie R. Stevenson ruled last month that a videotaped interrogation of a man accused in a domestic violence case was inadmissible because the warrant was faulty. The defense had alleged the warrant was issued without a judge's participation.

"Judges are appointed because they have been found to be impartial," said Michelle Martz-Bowles, attorney for the man, Perry Miller. "The right of liberty is sacred and only a judge should have the ability to take it away."

Miller's trial is scheduled for later this month. Martz-Bowles had requested that the case be dismissed, but the judge ruled that it should proceed so long as the evidence from the arrest was suppressed.

At least one county has recently shifted its practice.

"We did issue warrants without judge involvement, but we have ceased that," Dennis J. Weaver, clerk of the Washington County Circuit Court, said last night. Weaver said that when he saw Andrew's March 14 memo, he realized that the state's attorney's office could request the warrant, but didn't realize probable cause had to be determined by the judge. "We read the rule to say that the state's attorney requested it, and that was all that was necessary."

In Maryland's largest county, Montgomery, State's Attorney Douglas F. Gansler said he didn't know of any cases where an arrest warrant was issued without a judge's determination.

Gansler said such a scenario would undermine the justice system. The reason for a judge's involvement, he said, is to be certain there is an expert determination of probable cause before an arrest.

Without such an expert determination, "You could have a police officer making their own assessment of probable cause, and they go to a clerk who is fresh out of law school who says, `Sure there is probable cause,' " Gansler said.

Sun staff writers Johnathon E. Briggs and Caitlin Francke contributed to this article.

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