How Suspect In Robberies Served Less Than 4 Years

Crime Scenes

August 28, 2009|By Peter Hermann | Peter Hermann,

On Sept. 6, 2006, Mark Lomax, 37, jobless and destitute, a ninth-grade dropout, a string of robbery and drug convictions behind him, was sentenced to 21 years in prison for holding up the same Subway sandwich shop on North Charles Street three times in eight days.

After serving less than four years behind bars, he walked out of prison in June.

Four weeks later, city police said, Lomax, who is now 39, started another robbery spree. They suspect him of robbing 17 shops and restaurants, all this month and most in Mount Vernon, Fells Point and downtown, including the same Subway shop he had targeted three times in 2005.

Lomax's conviction fell apart because of a series of errors by the prosecutor and the trial judge, which prompted the state's second-highest court to throw out the case and order a new trial. That in turn ended with a plea deal and a much lighter sentence than he had gotten the first time around.

Instead of the 21 years from the first judge, Lomax agreed to plead guilty and accept a 15-year sentence with all but five years suspended. The time started when he was first jailed on July 14, 2005. With earned prison credits, Lomax had basically served a complete sentence and was set free with three years' supervised probation, part of which required him to return to family in Virginia and stay away from Subway.

Lomax's jury trial in the three Subway holdups lasted three days in August 2006, and, according to a sternly written ruling by Maryland's Court of Special Appeals, was replete with errors by the prosecutor, Anika Griffith, who is no longer with the state's attorney's office, and by Judge Thomas J.S. Waxter Jr., who the court said did not sufficiently admonish jurors or declare a mistrial.

According to the December 2008 ruling, the now-retired judge questioned Lomax about a mug shot the judge had himself ruled inadmissible and allowed the prosecutor to question Lomax about why he had refused to talk to police after his arrest. Inference of guilt cannot be made because a person invokes the constitutional right to remain silent.

Though the judge did tell jurors to ignore the questions, the appeals court said the warnings were not "forceful interdictions" and that "these errors occurred throughout the trial," resulting in a "substantial prejudice."

In an interview, Waxter said he overstepped by interjecting himself into the proceedings.

"When you try cases, you do the best you can," said Waxter, who, though retired, returns to the downtown courthouse to hear cases. "I asked questions, and I overdid it. The case should really be tried by the lawyers, not by the judge. I can't fault the appeals court, but that's the risk of the judicial system. ... People get convicted who shouldn't, and people get reversals that should get locked up."

Circuit Judge John Addison Howard, who accepted Lomax's plea in June, said it would be inappropriate for him to comment because the suspect is still on probation and under the jurisdiction of his court.

Joe Sviatko, a spokesman for the city state's attorney's office, said that by the time the case was "remanded back to Baltimore Circuit Court, the identifying witness was long gone." That would be the clerk who was robbed at Subway; he left two years ago and couldn't be found.

"What we were left with was the owner, who didn't see anything," Sviatko said.

The spokesman said Assistant State's Attorney Jesse Halvorsen could have tried to introduce the clerk's videotaped testimony from the first trial but worried that it was tainted by the problems noted by the appeals court and would have to be so heavily redacted that "the gaps and holes would be hard to explain."

Said Sviatko: "We think that's a pretty good plea under the circumstances."

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