City Judge, Attorney Exchanges Now Secret

Bench Conferences No Longer Part Of Public Record In Circuit Court

December 15, 2009|By Tricia Bishop | Tricia Bishop ,

Bench conferences - behind-the-curtain glimpses of candor between judges and attorneys in court - can no longer be viewed by the public in Baltimore City Circuit Court.

The recent development, which belatedly enforces a year-old rule, undoes a history of access and diverges from policies in some other jurisdictions.

Such conversations, held privately at the front of the courtroom during public proceedings, often contain the meat of the case, including the details of plea arrangements and sometimes even entire sentencings. Without access to them, the public might never know the outcome of particular cases.

The guideline also appears to conflict with a general belief in the legal community that the useful conversations, which allow lawyers to talk freely about the merits of a case, are typically open.

"Most lawyers consider bench conferences to be on the record" unless there's "sensitive witness or victim information being discussed," Andrew White, a Baltimore defense attorney and former federal prosecutor, said in an interview last month. The discussions are included in public transcripts sent to appeals courts, and often cited by media, including The Baltimore Sun.

Attorneys can always ask that they be taken off the record and the recording halted to ensure total privacy, White added, although they rarely do.

Still, federal courts have previously ruled that the public might not have a specific First Amendment right to the conferences.

Media hoping to access contemporaneous transcripts of bench conferences held during the sentencing of Zacarias Moussaoui, who was convicted in the Sept. 11, 2001, attacks, were denied by a U.S. District Court and the 4th Circuit Court of Appeals, which ruled that post-trial release was adequate.

And official policies vary widely within the state. Court officials in Howard and Montgomery counties said recordings or transcripts of on-the-record conferences are publicly accessible unless sealed (such as those in the case of Beltway Sniper John Allen Muhammad). And in Baltimore County, Chief Administrative Judge John Turnbull II said transcripts are accessible only at the close of trial, a frequent theme in court systems.

Baltimore City's interpretation is strict by comparison.

Court reporters said Administrative Judge Marcella A. Holland instructed them to strip those bench conversations from video footage before public view. Holland said the guideline was really a clarification in response to a recent inquiry, but that the rule has been in place since last year by her understanding. (The Baltimore Sun has viewed such recordings for years.)

In 2008, a Maryland judiciary committee recommended that "any person should be entitled to view an audio-video recording as though the person was in open court." Holland reads that to mean open court proceedings are in, while bench conferences - which are out of earshot from the gallery - are out. That same committee is also considering banning access to take-away copies of audio recordings throughout the state, though they could still be listened to at courthouses.

"There is no reference to public access to bench conferences," Holland said in an e-mailed response to questions. "Persons viewing a proceeding in open court are not privy to bench conferences. They are used to discuss things which should be out of the purview of the jury and the public."

But confusion persists. During Mayor Sheila Dixon's trial, a TV station was able to purchase bench conference transcripts.

That was a mistake, Holland said in an e-mail. Neither she, presiding Judge Dennis M. Sweeney, nor the chief court reporter was alerted before the transcript was provided. If so, the bench conferences would've been redacted, Holland said through an assistant, adding that "once Judge Sweeney learned of it, other requests were put on hold."

Holland plans to soon issue an administrative order on the issue.

Preventing public access to bench conferences means the public can be kept in the dark about things significant and trivial.

A bench conference in a recent Baltimore federal trial, for example, revealed that a witness had mistakenly been placed in the same holding cell as those he was testifying against. And an attempted murderer's entire sentencing was held privately at a city Circuit Court judge's bench in August.

That defendant, Damien West, was given a mostly suspended sentence with a four-year discount for time served despite admittedly trying to kill a witness in a separate case. The sentence was part of a deal that was made because he was working as a federal informant. The Baltimore Sun reviewed a recording to learn of that major development and this minor exchange: Defense attorney Catherine Flynn was growing out her hair, and the judge's wife believes women of a certain age shouldn't have long tresses.

"I tend to try to be, when I have an opportunity, to try to be at least a little bit sociable with the lawyers, to act like a human being," said Judge John M. Glynn, who presided over West's sentencing.

He said bench conferences are useful for judges and lawyers, who often want to explain potentially embarrassing aspects of their argument. "They're balancing their presentation in front of the world and their client [with] looking like an idiot in front of you, the judge," said Glynn, who retired in May but still hears cases.

"If you really truly don't want it recorded - I don't generally worry about this, because what I say is what I say - there's a button you can push that will turn off the recording, a mute button," he said. "If you don't push that button, it's understood by everybody that it's going to be recorded and it's on the record. ... If something is really a dark secret, you could always go into chambers and discuss it."

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