Category Archives: Law and Justice

Dwyer, Bail, O’Malley & Bob Gates

By Barry Rascovar

January 9, 2014–QUICK THOUGHTS as the 2014 Maryland General Assembly session gets going and pols speak out, both in Annapolis and in Washington.

Dwyer’s Legislative Purgatory

Anne Arundel Del. Don Dwyer, a weekend jailbird, deserves no mercy.

He’s got a serious alcohol addiction that nearly resulted in multiple deaths on the road and on the water. He has forfeited the right to represent citizens in the state legislature.

Del. Donald Dwyer

Delegate Donald Dwyer

House Speaker Mike Busch removed Dwyer from all committee assignments today. He still can vote on bills and participate in floor debates, but he’ll have no role shaping these bills in committee.

That’s strong disciplinary action, and Busch deserves credit for cracking down on a disreputable legislator. But more may be required.

Why does the disgraced Dwyer, who is doing jail time on weekends, remain in office, collecting his state salary? (Hint: He needs the money to pay his lawyer.)

The man’s a mess and needs to get out of the public spotlight.

He” remain embarrassment to the House of Delegates every time he casts a vote or speaks on the floor. Expulsion might be in order if Dwyer persists in sticking around.

O’Malley and Mary Jane

No one has put it better than Gov. Martin O’Malley in explaining why legalizing marijuana in Maryland is a very bad idea.

Use of this drug can be “a gateway to even worse behavior,” O’Malley says. Getting stoned on “Mary Jane” is no different from getting drunk. Adding another legal intoxicant is a great way to increase lethal driving and dangerous psychological and physical behavior.

Marijuana Plants

Marijuana Plants

After all, marijuana use can lead to memory loss, impact your motor skills, alter your ability to think clearly, increase your pulse rate, lower your blood pressure and harm your liver, lungs and heart.

With O’Malley and Speaker Busch skeptical of recreational marijuana use, you can forget about this issue this session — though gubernatorial candidate Del. Heather Mizeur already is trying to win the youth vote by touting the alleged benefits of legalization.

Weekend Work for Judges?

How nice of Chief District Judge Ben Clyburn to recommend more judges be added to handle an onslaught of bail review hearings in place of court commissioners. Let’s name it the “Judicial Full Employment Act of 2014.”

But Judge Clyburn didn’t call for his fellow District Court judges to extend themselves too much. Under his task force’s plan, no judge would have to work weekends to handle bail reviews. Commissioners would still assume that job.

District Court of Maryland

District Court

So people arrested on weekdays would go before a judge for bail review, accompanied by a lawyer, but on Saturdays and Sundays a lower-level hire, a court commissioner, would decide the temporary fate of inmates.

It’s an absurd idea.

If judges are going to take over bail review, it’s got to be an all-or-nothing plan.

When I started as a reporter at The Baltimore Sun, I worked weekends covering police and fire stories, including Saturday and Sunday morning District Court hearings presided over by a judge, not a commissioner.

It’s time for the judges to take the appropriate step and reinstitute weekend court not only for bail review cases but for other matters, too.

No other solution works — even if it inconveniences those who applied in the first place to become members of the judiciary.

Million-Dollar Babies  

Want to look like a million? Work as a Maryland lobbyist.

Last year, lobbying in Annapolis resulted in payments to “legislative representatives” of $32 million. Indeed, the Top Ten lobbyists averaged over $1.1 million apiece.

Not bad, considering that in my reporting years in Annapolis the “King of the Lobbyists,” the white-maned, expensively suited Jimmy Doyle, gained headlines when he cracked the $100,000 barrier.

James J. Doyle, Jr.

James J. Doyle, Jr.

Doyle was a classy professional. He had integrity. His presentations before committees were marvels of legal and practical logic, couched in terms the densest legislator could grasp. He was one of the best at wining and dining lawmakers, too.

Are today’s lobbyists ten or 20 times better than James J. Doyle Jr.? Or is it a matter of inflation lifting all lobbyists’ boats?

I opt for the latter explanation.

Bob Gates’ Gaff

Turning to the Nation’s Capital, former Defense Secretary Robert Gates stirred a hornet’s nest with his tell-all book about working with White House occupants.

Gates didn’t hold back in excoriating President Obama and Vice President Joe Biden for distrusting the military and thinking too often like politicians instead of statesmen.

Yet when Gates felt the two had gone too far in their comments, he stifled his anger.

In the process, he committed the greatest sin of all.

Former Defense Secretary Robert Gates

Former Defense Secretary Robert Gates

Think how history might have been altered if Gates had the courage to “speak truth to power.”

What if he had privately counseled Obama to show greater confidence in his country’s military leaders?

What if Gates had taken Biden aside and given him a well-deserved dressing-down?

Instead, Gates held his tongue.

By doing so, he forfeited his chance to make a difference. Sometimes the correct course is to tell the emperor he has no clothes.

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Legislating From the Bench in MD — Not This Time

Court of Appeals Sustains Contributory Negligence Doctrine 

BY BARRY RASCOVAR / JULY 16, 2013

IT WAS SUPPOSED to be a grand finale for Maryland’s top jurist, Robert Bell — a sweeping re-ordering of this state’s ancient negligence standards by wiping out the common law doctrine known as contributory negligence.

Retired Chief Judge Bob Bell

Retired Chief Judge Robert M. Bell

But a funny thing happened on the way to Bell’s retirement as Chief Judge of Maryland’s Court of Appeals: He couldn’t get his colleagues to go along with him. Instead, as often was the case during Bell’s tenure on the state’s highest court, he found himself in a distinct minority.

By a 5-2 vote, the court upheld Maryland’s contributory negligence doctrine employing the same logic as did Bell’s predecessor, Chief Judge Robert C. Murphy, 30 years ago.

In Maryland, and a handful of other states, if you contribute to your own injury, don’t bother suing others for negligence. It’s a common law standard that dates to 1848 in Maryland, 1809 in England and possibly all the way back to 1606.

Under this doctrine, personal responsibility is deemed paramount. It’s a quaint libertarian view in a 21st century world that increasingly tries to insulate individuals from any and all harm while blaming others — especially those with deep pockets — for our own stupidity or irresponsibility.

Bell dearly wanted to discard contributory negligence. He even formed a special judicial panel to study the matter and report back to him. Those findings didn’t go Bell’s way. The group’s conclusion: This is a complicated matter best left to the General Assembly.

But the chief judge wasn’t deterred. When a test case came along, he made sure the high court grabbed it.

IF ONLY . . .

In an ideal world, a comparative negligence standard would make total sense. Juries would impartially analyze legal arguments and decide how much the plaintiff was at fault for an injury and how much the defendant was at fault.

But juries often render emotional decisions based on the tragic plight of the defendant, heartbreaking tales of loved ones and fire-and-brimstone arguments from plaintiff lawyers urging jurors to hold Big Bad Business to account.

Opening up Maryland to comparative-fault standards would create a huge financial bonanza for litigators and a veritable tsunami of lawsuits swamping Maryland courts.

It also would present an enormous danger to the financial viability of many Maryland businesses, including the state’s medical industry. The number and size of malpractice lawsuits could go through the roof. If you think finding an obstetrician in Baltimore City — a jurisdiction notorious for outsized jury verdicts against doctors — is difficult today, imagine what it would be like if litigators started suing every doctor in sight for the most minor of medical problems patients encounter. If doctors think their malpractice insurance is high now, just wait.

Contributory negligence was embraced in this country in the early 1800s in part to guard against such predatory practices by litigators. Legislators feared that juries, egged on by plaintiff lawyers demanding huge damage awards, would award sums that could kill the nation’s newly developing industries.

That same fear, in a slightly different form, still haunts state lawmakers in Annapolis — and a majority of the state’s highest court.

SEPARATION OF POWERS

The larger issue facing the high court was whether to legislate from the bench.

The panel agreed it had the power to revise a common law rule like contributory negligence. That the jurists refused to do so is a tribute to the majority’s determination not to extend its authority beyond the traditional dividing line separating judicial and legislative branches.

Five of the seven judges concluded: This is a complex, deeply intertwined legal doctrine that can only be altered after considering a kaleidoscope of ramifications affecting the entire gamut of tort liability and insurance law. That’s the role of the legislature, not the courts.

Judge John C. Eldridge, who wrote the majority opinion, even used Bob Bell’s own words against him. He quoted from a 2008 ruling in which the Chief Judge had written, “It is well settled” that when the General Assembly makes clear its wishes on public issues, “the Court will decline to enter the public policy debate” — even if the issues involve a common law doctrine.

It is doubtful these jurists would have wasted so much time and energy debating this matter had not Bell insisted.

In the end, a substantial majority merely re-stated Bob Murphy’s 30-year-old logic for maintaining the legislature’s right to determine the fate of contributory negligence. Any other conclusion, Eldridge noted, “would be totally inconsistent with the Court’s long-standing jurisprudence.”

In Dissent

 ‘A dinosaur roams yet the landscape of Maryland’

Three cheers for Court of Appeals Judge Glenn Harrell for adding some levity to the dry and often ponderous writings of the state’s highest court.

Harrell passionately believes the state’s doctrine of contributory negligence needs to be deep-sixed. It is unfair and out of date, he says. He prefers a pure comparative negligence standard.

The problem is that he was virtually alone in making this argument. Only retiring Chief Judge Bob Bell sided with him.

Appeals Court Judge Glenn Harrell

Appeal Court Judge Glenn Harrell

Harrell, though, didn’t go quietly. He stated his arguments at great length — nearly three times longer than Eldridge’s majority opinion and nine times the length of a supplemental majority opinion by Judge Clayton Greene (with three co-signers).

What’s eye-catching about Harrell’s rant — he’s not a happy camper — is the judge’s opening salvo, which is dripping with mockery, humor and irony.

Here it is:

     “Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

     “My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.”

 Yes, Harrell was outvoted on the state’s highest court. But at least for two paragraphs he was entertaining.

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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.