MAKING PLEA DEALS
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
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