Defender's tactic deserves scorn -- but nothing else

April 14, 2002|By GREGORY KANE

WHAT SHOULD Baltimore's citizens do about Assistant Public Defender John Markus? What can be done about him?

Nothing. Nothing at all. And it might be best that way.

Markus defended Howard Whitworth, the man recently convicted of executing Detective Michael Cowdery of the Baltimore Police Department. On the night of March 12, 2001, Cowdery was questioning a drug addict outside a Chinese carryout on Harford Road. Whitworth shot Cowdery just below the knee from 10 to 15 feet away, then walked up and fired point-blank into Cowdery's head with a .357 Magnum.

At his trial, Whitworth employed what old-school cops call the S.O.D.D.I. defense: Some Other Dude Done It. Whitworth, nicknamed "Wee" -- and you figure 27-year-old guys who run around with nicknames like "Wee" have to be guilty of something -- says he was just some poor bloke headed to a liquor store and maybe sell a few of the 40 bags of crack he had on him. He just happened to turn the corner at Harford Road and Cliftview Avenue when he just happened to run into the gunbattle between Cowdery's partners and Cowdery's real murderer. Whitworth says he was hit and collapsed. The real murderer, that notorious criminal known as Someone Else, just happened to drop his gun right where Whitworth fell.

If Whitworth's luck were truly this bad, you have to wonder why the guy would even bother leaving his house. But as incredible -- if not downright ridiculous -- as all those "just happeneds" sound, Markus took it a step further in his closing argument to the jury.

Markus said it was Detective Robert Jackson, one of Cowdery's three partners at the scene, who planted the murder weapon next to Whitworth in an attempt to frame him. The charge outraged Cowdery's family, police Commissioner Ed Norris and rank-and-file officers. Gary McLhinney, president of the Fraternal Order of Police in Baltimore, was so incensed that he advised officers not to cooperate in cases involving public defenders.

In a letter sent to the rank-and-file April 2, McLhinney, quoted in an article by Sun reporter Del Quentin Wilber, urged officers to "show their disgust with the actions of the Public Defender's Office." Officers would do that, McLhinney said, by not accepting plea bargains, PBJs (probation before judgments) and "stets" (putting cases on the inactive docket.)

The police don't have the power to do any of those things, mind you. But assistant state's attorneys usually seek the advice of officers before doing so. All McLhinney told his guys to do is to withhold that advice if a public defender is acting on behalf of the defendant.

There are a couple of things wrong -- and the word here is indeed "wrong" -- with that. In his letter, McLhinney holds the entire public defender's office accountable for Markus' words. That's Wrong Thing No. 1.

Markus "was doing the best for his client, and what he said shouldn't be a reflection of the entire public defender's office," said David Solomon, a Baltimore attorney. Solomon neither condoned nor condemned Markus' actions. Instead, he pointed to what might happen if officers follow McLhinney's advice, which brings us to Wrong Thing No. 2.

"It's absurd," Solomon said of McLhinney's suggestion. "The system is going to get so backed up. Plea bargains are a necessary part of the system. If every case went to trial, the 180-day rule [the time during which a defendant must be brought to trial] would have to be the 1,080-day rule."

Attorney A. Dwight Pettit helped out with Wrong Thing No. 3. As reprehensible as Markus' closing argument was, it may have helped the prosecution. Pettit said that by making the charge with no evidence, Markus may have damaged his credibility not only with the jury but with other defense lawyers.

"I don't condone that at all," Pettit said of Markus' comments about Jackson. "It's one thing if you have evidence. But to throw out something for which you have no basis in evidence is pushing the envelope."

In short, Markus has already hurt himself. McLhinney's advice to officers hurts Markus and the public defender's office not one bit.

"It hurts the public," Pettit said. "I don't think it's in the interest of justice or the community."

Inevitably, some miscreant who should be in jail as a result of a plea bargain may be walking the streets because prosecutors didn't have enough evidence to convict him. McLhinney couldn't possibly want that. The absolute best thing to do about what Markus did to Jackson is nothing. The assistant public defender has already done irreparable harm to himself.

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