When judges can talk

Five Baltimore judges up for election can — and should — discuss policy

f you visit the website of the Baltimore City Criminal Justice Coordinating Council (CJCC), you will be greeted by the bold heading, “Working to enhance public safety and reduce crime.” The first sentence that follows reads, “Our members and agencies work cooperatively to enhance public safety, reduce crime and to advance the fair and timely disposition of criminal cases.”

Ever since September of 1999, the CJCC’s chairman has been the judge-in-charge of the criminal docket of the Baltimore City Circuit Court. Judge Charles Peters, the current judge-in-charge, is the seventh in an unbroken line of succession.

In August, Gov. Larry Hogan convened a special session of the CJCC, but the discussion did not include Judge Peters or the other two judges who serve on the body. Mary Ellen Barbera, chief judge of the Court of Appeals, sent Mr. Hogan a letter saying such participation would be inappropriate, given judges duty to avoid being “swayed by public clamor or fear of criticism.”

The governor had hoped for a full and frank discussion of what to do about our city’s crime emergency, thus his pique and his announced withdrawal of the state subsidy for the CJCC and the transfer of funds directly to the mayor’s office.

There is no question that discretionary sentencing is returning a large number of violent convicted offenders to the streets of Baltimore. This is the inevitable result of the volume of serious crimes that go to court and the need to resolve the charges by plea agreement rather than trial. Many observers, myself among them, are raising the question of whether the city judges, particularly in Circuit Court, are paying much better attention to moving the docket than to the gravity of the crimes.

Chief Judge Barbera is justly keen to

Iprotect her judges against the prevailing political winds. An impartial judiciary, never quite attainable so long as judges are human rather than angelic, remains a vital ideal of our system of government. We would be fools to undermine that ideal. And yet. The judges’ absence from the meeting on Aug. 29 invites the inference that they are indeed part of the problem — or at least that they do not feel much responsibility for its solution.

Judges are generally prohibited by the Maryland Code of Judicial Conduct from engaging in political controversy, and thus even from defending themselves when they are brought into the public square and rudely questioned.

But I would like to present four sitting Baltimore City judges, and one just appointed to the bench, who are free

to say pretty much what they want in public. This is because they will be candidates to retain their seats in the 2018 election.

They are Circuit Court Judges Charles Dorsey III, Lynn Stewart Mays, John S. Nugent, and Jennifer Schiffer; and Dana Middleton, appointed to the Circuit Court on Aug. 24. These five are expected to make up next year’s slate of sitting judges — that glum gaggle obliged to run in the Democratic and Republican primaries and praying with every fiber of their being that nobody is paying attention.

As candidates for election, their code of conduct permits them to engage in most any political activity allowed to any other citizen, except for leading or holding office in a political organization, making a speech for or against a political organization or nonjudicial candidate, or endorsing a candidate for nonjudicial office. They must not, of course, talk about specific cases that might come before them, nor “make a commitment, pledge, or promise that is inconsistent with the impartial performance of the adjudicative duties of the office” (Maryland Code of Judicial Conduct 2010, at page 76).

Normally the sitting judges retreat deftly behind the ramparts of the code — even as they attend every political bull roast, candidate forum, fundraiser, church, mosque, synagogue and temple that will have them. They raise and spend money, solicit endorsements, distribute campaign literature, and, if challenged by a nonincumbent, are seen at the polls meeting voters and behaving like any other candidate.

Fifty years ago there were no AfricanAmericans and just two women serving as judges in Maryland. Joseph C. Howard Sr. was obliged to run against the 1968 slate of sitting judges in order to integrate the old Supreme Bench of Baltimore City. It was pretty much the only way a person of color could get to serve as a judge here.

Now the sitting judges are well inoculated, by race and gender, against challengers, and thus against frank public discussion. Next year’s slate is very well positioned against any challenger, with two black women, one white woman, one black man, and one white man.

But they should be very much encouraged to speak out. As it happens, each of next year’s sitting judges is a criminal lawyer of long experience. Each is highly qualified to discuss, very much on the level of impartiality, the intrinsic and extrinsic challenges that they face on the bench. They are free to defend themselves and their colleagues who, because they are not present candidates, cannot. They should readily employ this unique opportunity to join a discussion that is vital to the future of Baltimore.