Bad decisions highlight need for judicial evaluation program.

Recent judicial decisions in Baltimore underscore the need to remedy a troubling, longstanding deficiency: the absence of a formal program for evaluating the performances of judges in Maryland. Twenty years ago, a select committee of Maryland judges and lawyers recommended that the state adopt a mandatory evaluation program run by the Administrative Office of the Courts. The proposal went nowhere in 1998, and generally has been ignored ever since.

The sentence imposed by Baltimore Circuit Judge Melissa Phinn on Steven Bagshaw, a former lieutenant within the Baltimore Police Department (BPD), was flabbergasting. Mr. Bagshaw was convicted by a jury of theft and misconduct in office for defrauding the city of more than $8,600 in pay during a six-week period last year while he was under surveillance by BPD internal affairs investigators.

Judge Phinn sentenced Mr. Bagshaw to one day of unsupervised probation before
judgment and refused requests to order him to pay restitution for the money he stole. Probation before judgment means Mr. Bagshaw will not have a criminal record.

My criticism of Judge Phinn is based as much on what she said as on what she did. Her explanation for her leniency sent a terrible message to the BPD and its officers. Judge Phinn castigated the BPD for not having “clean hands” and putting Mr. Bagshaw in a “bad situation.” She faulted the department for not “paying attention” to Mr. Bagshaw during his assignment as the head of the unit assigned to patrol near the Horseshoe Casino. In other words, Judge Phinn believed that the BPD was complicit in the crime. No, it wasn’t, Judge Phinn.

The BPD may have been guilty of lax internal controls, but that had nothing to do with Mr. Bagshaw’s culpability for deliberately falsifying time sheets to obtain regular and overtime pay to which he was not entitled. His culpability and the BPD’s laxity are two separate things.

Judge Phinn’s explanation implied that the moral character of lieutenants in the BPD is so low that weak oversight of time sheets is tantamount to an invitation to falsify the time sheets. The department is doomed if the standard of conduct in the BPD is such that police officers are expected to refrain from dishonesty only if they must work hard to get away with it.

Then there is the case of Dawnta Harris. A series of decisions by juvenile magistrates allowed the 16-year-old to remain on the streets and, according to police, in a position to run over and kill Baltimore County Police Officer Amy Caprio on May 21. He was free despite a record demonstrating that his behavior was dangerously out of control, as attested to by his own mother, who said she repeatedly asked authorities for help with her son.

On May 10, according to a timeline compiled by WJZ-TV, the local CBS affiliate, a magistrate in the juvenile division of the Baltimore City Circuit Court released Dawnta from custody and placed him on “community” detention, even though he had previously escaped from a juvenile facility in Montgomery County. At the time, Dawnta had been found guilty of car theft in Baltimore and was facing similar charges in Montgomery
County.

On May 14, Dawnta apparently went into “AWOL” status and violated the conditions of community detention. Neither his mother nor the Department of Juvenile Services (DJS) was able to reach him.

On May 18, a hearing was held with Dawnta’s mother, DJS representatives, and people from the public defender’s and prosecutor’s offices. On that date, the court failed to issue an order authorizing the police or juvenile services officers to find and take Dawnta into immediate custody. Three days later, Officer Caprio was killed. (The name of the judicial official who made the decision has not been released to the public.)

The court’s decision is inexplicable. A juvenile with a lengthy record violated the conditions of his community detention and was in the wind. A writ should have been issued for his apprehension and detention, regardless of what DJS or anyone else recommended.

Steven Platt, a retired circuit judge from Prince George’s County, has worked for years to promote judicial accountability through a “rigorous but fair” program of judicial performance evaluations. He points out that the absence of such a program creates an incongruous situation: Maryland holds contested elections for Circuit Court judges but provides voters with no objective criteria on which to decide whether to retain sitting judges.

The absence of such a program also does something else: It erodes what little confidence is left in the criminal and juvenile justice systems, especially in Baltimore. After the Bagshaw sentence and the decisions that left Dawnta Harris free to run into Officer Caprio, try persuading citizens that judges are doing just fine without being held accountable through evaluations of their decisions.

Many states have proved that judicial performance evaluations can be conducted without compromising judicial independence. It is long past time to implement a program of judicial performance evaluations in Maryland.

[Published as an op ed by The Baltimore Sun on June 1, 2018 but not posted to my blog until July 5, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

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