Experienced Baltimore defense attorneys are increasingly requesting jury trials in minor cases, flooding the city's already overwhelmed courts and frequently securing more lenient plea deals from prosecutors.
Between 35 and 65 misdemeanor cases are transferred daily from District Court to Circuit Court at the request of defendants or their attorneys. The requests consume three of the 11 courtrooms reserved for all criminal jury trials in the city, forcing delays - sometimes for months - in more serious cases.
The three judges handling the Circuit Court's misdemeanor docket can't try more than one case per day, leading prosecutors to dismiss, deactivate or plea bargain out more than 99 percent of the cases and hold on to a scant few for trial.
Defense attorneys can reject plea deals in District Court, knowing their clients will most likely get a better offer in Circuit Court, or get off entirely after victims and witnesses tire of postponements and venue changes and don't appear for trial.
"You come down to Circuit Court and you're either going to get that deal, or a better deal," said Ahmet Hisim, a defense attorney and former homicide prosecutor. "You're also more likely to have the case dismissed. Or you get a jury trial, and that's a great risk for prosecutors in Baltimore City because [jurors are] likely to believe the cops aren't telling the truth. What's the incentive to plead in District Court?" The glut of drug possession, misdemeanor assault and theft cases being resolved in courtrooms designed to hear rapes, murders and robberies has been a long-standing problem in Baltimore and one that lacks easy solutions.
Under Maryland law, any person charged with a crime where the penalty could exceed 90 days in jail has the right to request a jury trial, and when a defendant does, the case is scheduled for trial the next day in Circuit Court. District Court, the state's entry-level court, doesn't hold jury trials.
The number of jury trial requests spiked from 7,388 in fiscal 2007 to 8,470 in fiscal 2008, even as the overall caseload decreased. Now, more than one in every 10 criminal cases is a misdemeanor moved to the higher court on a jury trial request.
"The perception is that if you go forward in District Court you're likely going to go to jail," said Circuit Judge John P. Miller, head of the city's Criminal Justice Coordinating Council. "Up here in Circuit Court, you may or may not go to jail, and that's what's running the show right now. Somehow or another, we have to change that perception."
Judge Keith Mathews, chief judge for the District Court in Baltimore, attributes the increase to former Mayor Martin O'Malley's "zero-tolerance" arrest policies, which resulted in more defendants being put on probation. That means more is at stake when they get arrested again, even on a minor charge.
"The attorneys always advise their clients, 'If you're on probation, always ask for a jury trial,' " Mathews said. "Not that they end up getting one when they get to Circuit Court. A lot of times Circuit Court will try to work something out so they won't even get a conviction. They'll [inactivate] the case or require community service."
As the volume grows in Circuit Court, justice for misdemeanors becomes quicker and dirtier, with attorneys making judgments with less than a day's preparation and often without ever meeting, much less interviewing, victims or witnesses. Public defenders sometimes have to meet their clients for the first time when they arrive in court for trial.
On a Monday last month, Assistant State's Attorney Brendan Inscho had a 3-foot stack of 33 case folders piled on his office chair that he stayed late on a Friday and came into work on a Sunday to review.
"When you have 33 cases scheduled for trial that day, you can't be ready," he said.
Assistant State's Attorney Jennifer Nowak was in court last month prosecuting a misdemeanor assault case against an 18-year-old woman with no criminal record. The teen had participated in a fight in which the victim was beaten and cut in the head with a knife.
Circuit Judge Wanda Heard asked Nowak how severe the cut was. Did it require stitches? If so, how many? Nowak knew the victim had received stitches, but she didn't know how many.
She had just been assigned the case on Friday afternoon and tried to reach the victim by phone over the weekend. The victim didn't show up for court, and her mother and sister arrived too late.
Heard unilaterally reduced Nowak's offer from six months in jail and two years probation to probation before judgment. Heard attached a number of conditions - including a curfew and community service - but if the young woman is successful, she will not go to jail and will not have a criminal record.
"It's insane over here, absolutely insane," Heard told a clerk as they tried to divert some cases to another judge. "I have 40 defendants today. Have you ever heard of 40 defendants on a misdemeanor docket?"