Judge rebuked for raising penalties

Panel rules that increasing restitution without a hearing and adding fines was unlawful

December 11, 2005|By ANDREA F. SIEGEL | ANDREA F. SIEGEL,SUN REPORTER

In a case closely monitored by criminal defense lawyers across the state, a panel of Anne Arundel County judges has rebuked another judge for his unilateral increase of penalties in a teenager's plea agreement and erased the fines the judge slapped on the teen and his lawyer.

The opinion was met with relief by attorneys, who saw the case as a judge using the bench to go against the law and court rules and then upbraiding the lawyer who called him on it. They feared that a contrary ruling would have allowed judges to lash out with fines at lawyers who questioned them and lead attorneys to make decisions about arduously representing clients based on fears of being sanctioned.

In the opinion, issued Friday, the judges said the effect of that would be "chilling."

"I think they said it pretty well right in the opinion," said Chris Flohr, president-elect of the Maryland Criminal Defense Attorneys Association.

"It is good to see that the courts follow the rules. That is what the law is all about," said G. Andrew Cochran, the lawyer who challenged Circuit Judge Paul G. Goetzke's decision to increase his client's agreed-upon restitution by $250 without holding a hearing, which is required by law, and without proof that the victim sustained the additional financial loss.

"I was just doing my job," Cochran said.

Goetzke, whose election last year on a tough-on-crime platform bothered many in the defense bar, would not comment on specifics of the case.

"In general, being a judge - you will be reversed from time to time," he said.

The judicial panel faulted Goetzke for not holding a new hearing, awarding the victim restitution for inconvenience and fining Cochran and his client - all contrary to law, Judges Nancy Davis-Loomis, Paul A. Hackner and Ronald A. Silkworth said in the moderately worded decision.

"Litigants have a right to expect well-reasoned decisions based on the law and should not fear sanctions for pursuing their arguments," they said, calling the fines "most troubling."

In March, Cochran's case was bound for an agreement in juvenile court. It included his client paying $500 for repairs to a car at which he'd shot marbles and doing 64 hours of community service. But a juvenile master's recommendations must be approved by a judge.

Goetzke upped the amount of restitution to $750 to include $250 for the victim's time and inconvenience. Cochran protested. He sought a hearing, saying that Goetzke could not increase restitution without evidence and a hearing from those involved. In June, Goetzke denied Cochran's requests and levied $10 fines on the lawyer and the youth. (The Sun does not name juveniles accused of crimes.)

Cochran appealed, and the panel heard his case in October. By law, Goetzke was not part of that case. But he later said that he believes judges should be able to consider the time and inconvenience endured by crime victims when they award restitution.

"There is no compensation for inconvenience," said Cochran's lawyer, Laura M. Robinson. "The legislature would have to change the law in order for the judge to award compensation for inconvenience, and if the legislature wants to, that's fine. As long as the judge follows the law."

Victims can receive compensation for lost wages, medical bills and repair costs.

At the October hearing, a prosecutor said that last spring, the victim wanted to be compensated for lost wages but lacked paperwork to document the claim. That was why the juvenile master wanted the teen to perform community service.

But Goetzke would not have heard that. That explanation was not part of the juvenile master's report to the judge, and Goetzke had excused the prosecutor from Cochran's courtroom protest of the change in restitution.

andrea.siegel@balatsun.com

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