Category Archives: Law and Justice

New Day for Maryland’s High Court

By Barry Rascovar / July 9, 2013 

FORGET THE WOMEN’S ANGLE. What’s most important about Mary Ellen Barbera’s elevation to chief of the Maryland Court of Appeals isn’t her gender but her pragmatic, consensus-building tendencies that contrast with the liberal interpretations and easy-going nature of her retired predecessor, Robert M. Bell.

Yes, it’s good to have a female at the top of Maryland’s court system for the first time, especially with the addition of Baltimore Circuit Court Judge Shirley Watts to the high court. This gives women a historic majority on the state’s court of last resort.

New Maryland Chief Judge Mary Ellen Barbera

Mary Ellen Barbera

But the four female votes on Cotap, as it is commonly known, will not be in lock step. Indeed, there’s a gulf separating written opinions of the decidedly progressive Howard County jurist Lynn Battaglia and the more cautious Eastern Shore jurist, Sally Adkins.

Of course, this doesn’t easily break down along a liberal-conservative spectrum. Legal disputes usually involve differing interpretations of the law that have little to do with political leanings.

But on a number of heated issues, the state’s high court seems to have wandered far astray — with the chief judge having neither the desire nor clever dexterity to act as a unifier.

Indeed, Bell may have been too nice a fellow to take on the daunting task of “herding cats,” which is what it takes to keep six stubbornly independent, free-thinking judges in agreement and in the middle of the judicial road.

Effective In Dissent

Barbera is described as forthright, diplomatic and an accomplished bridge-builder. She can be remarkably frank, too.

When a court majority overturned the state’s DNA testing law for people jailed and accused of a crime, Barbera’s dissent stripped away the legal nonsense and hyperbole.

That ruling, she said, inflated privacy rights of people in jail and deflated the public’s right to be kept safe through minimally intrusive DNA sampling of inmates. The majority had taken an unrealistic and alarmist view, she wrote.

Last month, the Supreme Court agreed.

This state’s high court needs to start using common sense and rely less on legal abstractions and hypotheticals.

No Residency Rules for Politcos

Take the recent case of Daryl Jones, who sat on the Anne Arundel County Council until he served time in federal prison for intentionally not filing his income taxes. Members of the council eventually removed him, since he’d been living in a South Carolina prison for months.

Now a majority of the high court, 4-3, wants Jones returned to his council seat because of its tortured interpretation of the words “residence,” “abode” and “domicile.” It’s the legal equivalent of arguing over how many angels can dance on the head of a pin.

Atkins, Barbera and Glenn Harrell said this ruling “defies logic” and “makes no sense.” Even worse, the majority didn’t bother studying the historical record that makes clear what writers of the county charter meant.

The ruling is an extension of the high court’s continuing misadventures in defining political residence and political redistricting lines.

It’s gotten so bad one Baltimore City councilwoman hasn’t lived in her district for a decade (she prefers an Inner Harbor condo view) and communities that expanded beyond city and county boundaries are forbidden from voting in a unified district.

The Jones decision, the dissenters noted, will make matters worse because now there is essentially no legal barrier for politicians to live outside the districts they represent.

Pit Bull Chaos

Similarly, on the pit bull issue, the Bell court created a chaotic mess that the state legislature won’t or can’t figure out how to correct.

Bell & Co. traveled down a dangerous path by declaring pit bulls “inherently dangerous” without finding any empirical evidence to back them up.

It’s a terrible decision lacking in solid scientific data. It amounts to genetic racism among breeds of dog.

The dissenters, who railed against the illogic of this 4-3 ruling, again included Barbera.

Judicial Trailblazer

Nearly all of Bob Bell’s splendid career was served on the bench. He was a trailblazer for African-American jurists. He has a brilliant legal mind.

Yet he lacked the political instincts and negotiating skills of his predecessor, Chief Judge Robert C. Murphy, a jovial but tough-minded Irishman who could deal effectively with state legislators, governors and colleagues.

Barbera promises to bring her own style of leadership to the chief judgeship. It could shape the high court in quite different ways.

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Treatment, Not Jail, for Md.’s Troubled Youth

Silver OakBy Barry Rascovar / June 15, 2013

LET’S NOT MAKE A MOUNTAIN out of the Maryland Board of Public Work’s decision to allow a Carroll County facility for troubled juvenile teens (photo on left) to exceed an artificial cap on population set by the state for such treatment centers.

It was a practical, common-sense action that places the welfare of these disturbed teens ahead of a rigid, inflexible capacity limitation set by Maryland legislators — a limit that actually hurts the very youths this restriction was designed to help.

Maryland Treasurer Nancy Kopp, who repeatedly expressed reservations at last week’s meeting about doubling Silver Oak Academy’s population, rightly concluded, “You can’t make the perfect the enemy of the good.”

Yes, it’s been shown in other states that smaller treatment centers for young delinquents are more effective in helping them face up to their problems. A 48-bed center is the ideal, but governments rarely face ideal situations.

Right now, there are 43 youth offenders sitting in detention cells awaiting court-ordered placement. No beds are available in any state treatment center. That is the worst possible outcome for these troubled kids.

Why does this chronic situation keep occurring? Because local political leaders block state attempts to locate such facilities in their communities, so that the kids are close to their families. It’s the old “not in my back yard” (NIMBY) attitude, which overrides society’s obligation to do what’s best for difficult-to-handle youngsters.

Opposition from politicians in Southern Maryland and in Baltimore City has stymied efforts to site juvenile care centers (52 city locations failed to pass the NIMBY test) . So 43 kids languish in detention cells, becoming victims of a broken system. The harm done to them is something Maryland Juvenile Services Secretary Sam Abed says, “I can’t tolerate.”

His interim answer: allowing Silver Oak Academy in Keymar to slowly take in 48 more residents. In essence, the operators will run a mirror-image, companion 48-bed center on the property.

Staffing ratios won’t change. Every step taken by the private operator will be closely followed by the attorney general’s juvenile justice monitor (who preferred an expansion of only 24 beds), the Public Defender’s office and by internal department watchdogs.

This isn’t as Sen. Bobby Zirkin of Baltimore County put it, a “giant step backward.” More accurately, it is a reality check.

Last winter, legislative budget analysts assessed the overcrowding situation and concluded doubling Silver Oak’s capacity “would provide some immediate relief.” It noted that due to repeated local rejection of suggested juvenile  treatment center sites, the state “is multiple years away from having additional. . . capacity available.”

To date, Silver Oak Academy has gotten high marks. There is no indication this will change with 48 extra teens at the facility.

In this instance, the state’s first duty is to get the teens who shouldn’t be there out of detention jails. If that means ignoring an artificial 48-bed limit in the short-term so be it. Treatment should always trump incarceration for young offenders who may yet become model citizens.

 

Maryland’s Political Prison Puzzle

Corrections Dept.By Barry Rascovar / June 11, 2013

THERE IS NO WAY Gov. Martin O’Malley can make Maryland’s prison embarrassment disappear. Lord knows he’d like to. If he’s serious about running for President, O’Malley must explain why he was so slow to respond to the growing influence of street gangs within state prisons over the past seven years.

He can’t blame this one on his Republican predecessor, Bob Ehrlich. The problem started to build back then but there were clear signs early in O’Malley’s first term gangs had become dangerously powerful inside prison walls.

He can’t blame all his tardiness on the FBI, which took two long years to finish its investigation at the Baltimore City jail. Yes, that stymied efforts to remove suspect prisoners and guards. But there were plenty of other steps — much-needed additional training, rotation of guards not under investigation and a review of the leadership team’s skills, abilities and honesty.

An outside audit earlier this year revealed a shocking lack of attention by the O’Malley administration to the basics: filthy cells, no standard security checks, antiquated security gates and guards ignorant of an inmate’s rights. Part of this is due to budget cuts during the Great Recession and the chronic under-funding of prison programs by government.

However, the audit also revealed a top-heavy, inefficient management structure. How could O’Malley’s highly touted State Stat gurus miss this? Why wasn’t this costly, ineffective administrative excess done away with during the state’s deep recession?

It’s a dilemma for the governor and a headache for Lt. Gov. Anthony Brown, who may have made a mistake with his early announcement of candidacy to succeed O’Malley.

Brown is in the uncomfortable posture of explaining the prison scandal on his watch. Attorney General Doug Gansler’s shot across O’Malley’s bow in asking for an independent inquiry is just the beginning of the political broadsides.

Yet O’Malley has got a right to be angry at the way federal investigators trumpeted their indictments. Instead of holding a joint press conference and sharing credit with state leaders, who had requested the investigation after all, the FBI and U.S. Attorney for Maryland decided to grandstand. They left the clear impression O’Malley and his underlings were asleep at the switch.

That may win federal officials in Maryland gold stars from their Washington bosses but it soured future relations with Annapolis.

Digging out of this mess won’t be easy, as House Speaker Mike Busch noted. One legislative hearing is the beginning of public discussions, not the end.

There are serious mid-level management weaknesses. Those can be corrected by prisions secretary Gary Maynard. He can institute tough new security measures to eliminate most contraband cell phones and drugs. Downsizing the prison bureaucracy is essential. A little money from the governor can make the Baltimore jail cleaner and safer.

Getting rid of dishonest guards at the Baltimore City Detention Center is a must but it brings up an equally serious problem: how to replace them? The pool of guard applicants in Baltimore City who are drug-free and have clean records is small, especially among males. Most applicants come from the same neighborhoods as the inmates. That’s not a healthy situation.

Female applicants in Baltimore City, meanwhile, tend to have self-confidence problems and are susceptible to the amorous sweet-talk of manipulative inmates. Recruiting better guard applicants won’t be easy and won’t happen quickly.

O’Malley erred several times by not personally taking control of the situation and setting the record straight as to who started this investigation, his earlier steps to attack the gang issue and his determination to continue the effort. He could have done this after he returned from his economic development trip to Israel or at last week’s legislative hearing.

Instead, he chose to govern through press releases. It didn’t work.

On this one he needs to lead the crusade. If not, he’ll be dogged by prison scandal questions at every campaign stop across the country — and his preferred successor will be bogged down trying to explain what went so wrong that it left Maryland in an embarrassing national spotlight.