MAK­ING PLEA DEALS

Baltimore Sun Sunday - - FRONT PAGE -

In a packed Bal­ti­more court­room, Cir­cuit Judge Charles J. Peters calls cases one by one, sum­mon­ing prose­cu­tors and de­fense at­tor­neys to his bench. Un­der cover of a white noise ma­chine, the lawyers are ready to deal.

The de­fen­dant in one case had been caught with a loaded .380cal­iber hand­gun while smok­ing a mar­i­juana blunt in an al­ley. An­other was pulled over by of­fi­cers who found an Uzi in the trunk. A third, a 17-year-old, bolted from a car and ran from po­lice, who found a gun ditched nearby.

Prose­cu­tors pre­sented plea of­fers for each. Peters re­duced the state’s of­fer in one deal, in­creased it in an­other, and ap­proved a third un­changed.

The to­tal jail time for the three cases, in­clud­ing time al­ready served: 17 months.

Crit­ics, in­clud­ing Po­lice Com­mis­sioner Kevin Davis and Gov. Larry Ho­gan, have blamed at least some of Bal­ti­more’s his­toric lev­els of vi­o­lence on the city's judges. They want crim­i­nals who are caught with guns to get tougher pun­ish­ments.

“At the end of the day, we don’t im­pose sen­tences,” State’s At­tor­ney Mar­i­lyn Mosby, the city’s top pros­e­cu­tor, said last year. “We can make a rec­om­men­da­tion. But it's not on us.”

Ninety-three per­cent of felony con­vic­tions in Bal­ti­more are the re­sult of plea deals — and some three-quar­ters of them are taken in front of Peters.

Peters, a 61-year-old former state and fed­eral pros­e­cu­tor, pre­sides over the city’s “re­cep­tion

court.”

The venue was cre­ated a decade ago to cen­tral­ize and ex­pe­dite cases, free­ing up other judges and court­rooms for tri­als. It’s the first and last stop for the bulk of the city’s cases.

In re­cep­tion court, prose­cu­tors and de­fense at­tor­neys can present plea deals for Peters’ ap­proval. When they aren’t in agree­ment, they can ap­proach the bench, where Peters may pro­pose a com­pro­mise. He can also balk, and in­crease what the state is look­ing for.

The process is not im­me­di­ately trans­par­ent. Ne­go­ti­a­tions at the bench are not au­di­ble to the public. Prose­cu­tors don’t in­clude their pro­posed of­fers in court files. And judges have de­clined to re­spond to the crit­ics’ com­plaints about their sen­tenc­ing de­ci­sions. So The Bal­ti­more Sun ob­tained au­dio­tapes of en­tire days’ worth of pro­ceed­ings and bench con­fer­ences from Peters’ court­room.

A re­view of the tapes re­veals the be­hind-the-scenes de­lib­er­a­tions that go into plea deals.

In the cases re­viewed by The Sun — not a sci­en­tif­i­cally rep­re­sen­ta­tive sam­ple — Peters most of­ten ac­cepted the state’s sen­tenc­ing of­fer.

When he re­duced the state’s of­fer, it could be cut by months or years, with no ob­jec­tions by prose­cu­tors. On rare oc­ca­sions, he in­creased the sen­tence the state pro­posed.

The Sun lis­tened to the en­tire docket from Peters’ court­room on eight dates se­lected at ran­dom be­tween March and Au­gust last year — a to­tal of more than 250 cases. Fifty cases on those dates ended in plea agree­ments.

Peters has been in charge of the crim­i­nal docket since Jan­uary 2015. Since he took over, statis­tics show, re­cep­tion court is in­creas­ingly the place where cases are brought to a con­clu­sion. The pro­por­tion of ac­tive felony cases re­solved there rose from an av­er­age of 19.6 per­cent per month in 2014 to 32 per­cent through July of this year.

When the sides are far apart, they can try their luck at trial. But most of the time, Peters told The Sun, they’re look­ing for a res­o­lu­tion.

“I think the par­ties are look­ing for some sort of mid­dle ground where we can all come to some sort of con­clu­sion,” he said. “We try to fa­cil­i­tate that.”

Ad­min­is­tra­tive Judge W. Michel Pier­son, who over­sees Bal­ti­more Cir­cuit Court, agreed.

“We are pro­vid­ing a fo­rum for peo­ple to get the cases re­solved,” he said.

The state’s at­tor­ney’s of­fice’s chief deputy, Michael Schat­zow, says he doesn’t want judges to help his prose­cu­tors cut deals.

“We’re in­ter­ested in hav­ing a guilty plea on the terms we rec­om­mend,” Schat­zow said. “That’s why we make that rec­om­men­da­tion.”

City prose­cu­tors do not track how of­ten their sen­tences are un­der­cut by judges. A spokes­woman said the of­fice found it “dif­fi­cult to agree” with The Sun’s ob­ser­va­tions about plea ne­go­ti­a­tions in re­cep­tion court be­cause they are not based on a sta­tis­ti­cally sig­nif­i­cant sam­ple size.

The state’s high­est court has been crit­i­cal of judges in­volv­ing them­selves in plea ne­go­ti­a­tions. In a rul­ing last year, the Court of Spe­cial Ap­peals wrote that “it is the role of the state, not a trial court, to make a plea of­fer,” and trial judges “should re­frain from di­rectly mak­ing plea of­fers to de­fen­dants.”

Peters de­scribed the dis­cus­sions at the bench as a “meet­ing of the minds.” He said the ap­pel­late court’s rul­ing ap­plies most di­rectly to judges who over­see tri­als — which he does not do.

On a typ­i­cal day, dozens of de­fen­dants are sched­uled to ap­pear be­fore Peters in his sec­ond-floor court­room in the East Court­house on Calvert Street.

Those who are not in cus­tody sit on the left side of the room. Those who have been held in cus­tody are sum­moned and lined up on a bench.

For at­tor­neys, re­cep­tion court is the wa­ter cooler of the court­house, as they pack the right side of the room and the jury box. The acous­tics bor­der on ter­ri­ble. So many peo­ple come and go that the door never stops swing­ing.

Peters does not con­duct tri­als, which in any event are rare in Bal­ti­more Cir­cuit Court: More than 1,800 cases in re­cep­tion court last year ended in guilty pleas. An­other 417 were re­solved with pleas just be­fore trial. Just 7 per­cent of felony con­vic­tions — 175 cases — were the re­sult of a trial.

When a de­fen­dant ap­pears be­fore Peters, a post­pone­ment is the most fre­quent out­come. The judge of­ten ex­presses ex­as­per­a­tion as at­tor­neys ex­plain why their cases can’t pro­ceed as planned.

“This is the worst re­cep­tion court docket in my ca­reer,” he mut­tered to him­self one day.

At­tor­neys who ap­pear fre­quently in Peters’ court­room say the pro­ceed­ings show the chal­lenges con­fronting the city’s crim­i­nal jus­tice sys­tem. Prose­cu­tors and de­fense at­tor­neys alike weigh the risk of tak­ing a case to trial, where the qual­ity of the po­lice work is likely to come un­der heavy ques­tion­ing be­fore a skep­ti­cal jury, against a plea deal that brings a sure out­come, but likely will re­quire con­ces­sions on both sides: the pros­e­cu­tor set­tles for lighter sen­tences; the de­fen­dant agrees to be pun­ished.

“You [as a pros­e­cu­tor] are def­i­nitely triag­ing,” said one former pros­e­cu­tor, who did not want to be iden­ti­fied out of con­cern for ap­pear­ing to crit­i­cize a judge.

Univer­sity of Bal­ti­more law pro­fes­sor Steven P. Gross­man, a former pros­e­cu­tor in New York, called plea bar­gain­ing the “dirty un­der­belly of the crim­i­nal jus­tice sys­tem.”

Gross­man said de­fen­dants are of­ten prod­ded into plead­ing guilty be­cause they fear a judge is likely to hit them with a harsher sen­tence if they are con­victed af­ter a trial. But he said pleas are also a nec­es­sary func­tion of the crim­i­nal jus­tice sys­tem.

“For a plea bar­gain to take place, ev­ery­body’s got to agree,” he said. “Yet we still do it in 95 per­cent of the cases … be­cause it works for ev­ery­body.” Gross­man is the au­thor of a forth­com­ing le­gal pa­per on plea bar­gain re­form.

Peters and Pier­son de­clined to dis­cuss their roles in de­tail or to de­fend the ju­di­ciary. They said they wanted to avoid the ap­pear­ance of en­gag­ing in pol­i­tics in re­sponse to crit­i­cism.

Cir­cuit Court judges are ap­pointed by the gov­er­nor. If they wish to re­main on the bench, they must run for re-elec­tion. They cam­paign, raise money and ad­ver­tise like can­di­dates for other public of­fices. But they say pro­fes­sional rules pre­vent them from dis­cussing cases in de­tail — their rul­ings, they say, speak for them­selves.

At­tor­neys of­ten ne­go­ti­ate a plea deal be­fore en­ter­ing the court­room. Their in­ter­ac­tions at the bench with Peters take min­utes — or less. One vet­eran de­fense at­tor­ney said Peters al­lows a “20-sec­ond pitch” be­fore reach­ing a con­clu­sion.

In the case of a 17-year-old ar­rested with a gun, the state was seek­ing five years, with all but time served — about two months — sus­pended. That means the de­fen­dant would be re­leased, but if he vi­o­lated his pro­ba­tion, he could be sent to prison for up to four years and 10 months.

“Would you of­fer pro­ba­tion be­fore judg­ment if he took the plea?” de­fense at­tor­ney Todd Op­pen­heim asked at the bench. Pro­ba­tion be­fore judg­ment, or PBJ, means a pe­riod of pro­ba­tion that if com­pleted suc­cess­fully does not re­sult in a crim­i­nal con­vic­tion. “Nope,” Peters said flatly. Op­pen­heim per­sisted. His client had been free since post­ing bail, he said, and was work­ing at a pizza place. He con­tended that he was in a hack — an un­li­censed taxi cab — when he was pulled over.

“He doesn’t want to go to trial. He’ll take the plea to limit his risk,” Op­pen­heim said. “He’s proven over the last year that he’s go­ing to stay out of trou­ble.”

The pros­e­cu­tor said noth­ing to ad­vo­cate for the orig­i­nal of­fer. Peters re­versed him­self.

“OK, I’ll give him PBJ, three years, su­per­vised,” Peters said.

Schat­zow said prose­cu­tors can con­trol the charges they de­cide to pur­sue, and rec­om­mend sen­tences. But af­ter a judge of­fers a lesser sen­tence and a de­fen­dant agrees to plead guilty, he said, prose­cu­tors can’t with­draw the of­fer and move to trial.

“We can say we’re not OK with it, but we can’t do any­thing about it,” Schat­zow said. “We can’t stop peo­ple from plead­ing guilty and we can’t con­trol the sen­tence the judge im­poses.”

Davis, the po­lice com­mis­sioner, has com­piled and pro­moted data show­ing that more than 60 per­cent of de­fen­dants with gun con­vic­tions in Bal­ti­more since the start of 2016 have had more than half of their sen­tences sus­pended.

Mayor Cather­ine Pugh and some mem­bers of the City Coun­cil have pushed for in­creased manda­tory min­i­mums for gun offenders.

The state’s sen­tenc­ing guide­lines pro­vide a sen­tenc­ing range based on an of­fender’s con­vic­tion, prior his­tory and other fac­tors.

Fig­ures from the Mary­land Sen­tenc­ing Com­mis­sion sug­gest judges in Bal­ti­more are the least likely in the state to de­vi­ate from those guide­lines. Eighty-six per­cent of sen­tences handed down by the city’s cir­cuit judges dur­ing fis­cal year 2016, the most re­cent fig­ures avail­able, fell within the guide­lines. The statewide av­er­age was 75 per­cent.

State law­mak­ers have ap­proved manda­tory min­i­mums that could send felons caught with guns to prison for lengthy sen­tences. But prose­cu­tors of­ten drop those counts and bring for­ward lesser charges that carry re­duced time, in an ef­fort to strike a deal and se­cure the con­vic­tion.

Schat­zow said the tough­est sen­tences aren’t al­ways “what’s needed to ad­dress the prob­lem.”

“We would never con­tend that a lengthy sen­tence is the ap­pro­pri­ate sen­tence in ev­ery case,” he said. “Sen­tences have to be in­di­vid­ual.”

In cases re­viewed by The Sun, prose­cu­tors of­ten rec­om­mended sen­tences that were al­ready mostly sus­pended. In one rob­bery case, for ex­am­ple, the state sought 15 years, with the de­fen­dant to serve two. In a drug case, the state sought 15 years, with the de­fen­dant to walk free af­ter agree­ing to plead guilty.

Prose­cu­tors and de­fense at­tor­neys said the qual­ity of ev­i­dence, the de­fen­dants’ prior con­vic­tions, and the like­li­hood of a con­vic­tion are the big­gest fac­tors in how gun cases are re­solved.

They did not say in­ter­ven­tion by judges was a ma­jor fac­tor.

Many gun cases that come be­fore the court are rife with prob­lems. Rarely is a de­fen­dant caught hold­ing a gun. Of­ten, weapons are found un­der­neath car seats or in trunks, or in clos­ets or boxes in­side homes.

“Ev­ery time [po­lice] ar­rest some­one and get a gun, they’re get­ting a gun off the street, whether any­body gets con­victed or not,” said one long­time de­fense at­tor­ney.

Peters said dur­ing one hear­ing that prose­cu­tors were “lit­er­ally all over the map” in how they treated gun cases.

In a case from March, a pros­e­cu­tor told Peters that the state wanted three years, with all but one sus­pended — the kind of deal Davis has crit­i­cized.

She also said she would “re­main silent” on whether pro­ba­tion be­fore judg­ment was ap­pro­pri­ate. That would mean the de­fen­dant would get no jail time.

The de­fense at­tor­ney ques­tioned the search of the ve­hi­cle that yielded the gun. He said his client was a “good can­di­date” for pro­ba­tion be­fore judg­ment: It was his first adult of­fense, and he was in school and re­ceiv­ing ser­vices through the ju­ve­nile jus­tice sys­tem for a pre­vi­ous of­fense.

Peters said the teen would have to serve 30 days in jail. The de­fen­dant took the deal.

A 17-year-old ac­cused of pos­sess­ing drugs and an as­sault ri­fle was charged with pos­sess­ing a firearm in a drug of­fense. For a first-time of­fender, the crime car­ries a five-year manda­tory min­i­mum and a max­i­mum of 20 years.

The pros­e­cu­tor on the case, Corey Kropp, said he’d re­ceived ap­proval to drop that charge and pur­sue a plea deal on a lesser gun charge. He wanted eight years, with the de­fen­dant to serve four.

The de­fen­dant was on ju­ve­nile pro­ba­tion. His at­tor­ney, Alan Cohen, ar­gued that it was his client’s first adult of­fense. The prison time seemed “kind of high” for his age, he said.

“To­day only,” Peters said, “I’ll give him eight and [all but] two [sus­pended].”

In an­other case, po­lice said they found the de­fen­dant in a bath­room, and a hand­gun on a ledge out­side the bath­room win­dow. The pros­e­cu­tor said he was in near agree­ment with the de­fense at­tor­ney that po­lice con­ducted an il­le­gal search. The de­fen­dant had a record, but his most re­cent con­vic­tion was 17 years ear­lier.

“The case def­i­nitely has le­gal ar­gu­ment is­sues that I think [the public de­fender] could be suc­cess­ful on, or I could be suc­cess­ful on,” the pros­e­cu­tor, Al­bert Peisinger, said.

“It’s a flip of a coin. I’m will­ing to of­fer pro­ba­tion.”

Peters was ap­pointed to the bench in 2010 by Demo­cratic Gov. Martin O’Mal­ley. He spent 24 years as a pros­e­cu­tor, in­clud­ing 16 as a fed­eral pros­e­cu­tor, dur­ing which he han­dled se­ri­ous gun and drug cases. He helped pros­e­cute in­di­vid­u­als from the “Stop Snitch­ing” video, and cor­rupt Bal­ti­more po­lice of­fi­cers Wil­liam King and An­to­nio Mur­ray.

Court of­fi­cials say there was no model for cre­at­ing the re­cep­tion court in 2007. Be­fore then, cases were di­vided up among the crim­i­nal court judges. Judges would tackle their list of cases each day be­fore clear­ing time to hold tri­als.

Cases were of­ten de­layed for ex­tended pe­ri­ods be­cause court­rooms were un­avail­able.

The re­cep­tion court sys­tem was de­signed to keep judges free for tri­als.

“There are 15 judges that try crim­i­nal cases — only 15 peo­ple in this city that can

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