Evaluating judicial performance

Maybe the decision by the Maryland Court of Special Appeals in Delvonta Morten v. State of Maryland filed on Sept. 4 will do what nothing else has done: persuade the Maryland judiciary to adopt a formal system for evaluating judicial performance. At issue in the appeal were evidentiary rulings by Judge Melissa Phinn of the Circuit Court for Baltimore City during the 2017 trial in which a jury found Mr. Morten guilty of the first-degree murder of Kevin Cannady.

Judge Charles E. Moylan, Jr., wrote the reported decision reversing the conviction on behalf of a unanimous court. He minced no words in his critique of Phinn’s rulings.

The most important evidence at trial ostensibly linking Mr. Morten to the murder was an anonymous telephone call to police 35 minutes after Cannady was shot. The caller gave a detailed description of two assailants. Moylan described the call as “absolutely critical” to the state’s case.

Phinn admitted the call into evidence under the excited utterance exception to the rule against hearsay. Moylan stated that the hearing on its admissibility “was essentially a quasi-adversarial exchange between defense counsel, arguing against the admissibility of the hearsay, and the trial judge, making the best case for admissibility. For the most part, the State sat quietly by.”

Moylan pointed out that the call was the antithesis of an excited utterance. “It was a cool and controlled narrative. If a fellow police officer had been in the declarant’s observation post, he or she could not have done a better reporting job than the declarant did. This report was an admirably unexcited utterance.”

Phinn made three other evidentiary rulings damaging to the defense that the appellate court held were wrong. She admitted into evidence two subsequent calls from the same anonymous caller as present sense impression exceptions to the hearsay rule, and she curtailed the right of the defense’s expert to challenge the reliability of the controversial TrueAllele method of DNA testing used to tie the defendant to the murder weapon.

According to Moylan, Morten would have “walked” had Phinn ruled correctly. Except for the challenged evidence, and wearing a hoodie, “there was no linkage between the appellant and the shooting.”

Bagshaw case

Phinn was the target of criticism last year for the lenient sentence she handed down to former Baltimore Police Department Lt. Steven Bagshaw, who was found guilty by a jury of theft and misconduct in office for defrauding the city of more than $8,600 in pay. Rejecting the state’s request that he be imprisoned for 18 months, she struck the convictions and sentenced him to one day of probation before judgment.

But it was her comments at the sentencing hearing that raised eyebrows even more. Phinn blamed the BPD for Bagshaw’s crimes because it did not watch him carefully enough. She accused the BPD of not having “clean hands” and putting him in a “bad situation,” faulting 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.

Bagshaw was a 45-year-old veteran policeman who supervised other officers, not a rookie. Even in the surreal world that the criminal justice system in Baltimore has become, it was jarring to hear a judge use the failure of a police department to keep a closer eye on a police lieutenant as an excuse for his crimes.

Will there be any formal review of Phinn’s actions? No. The Maryland judiciary has refused repeated calls to adopt a system for evaluating judicial performance.

The idea of a formal system for reviewing and remedying deficiencies in the performance of Maryland judges reached its high-water mark in 1998, when it was recommended by a select committee of judges and lawyers. The idea has languished ever since. Judicial misconduct is subject to investigation by the Judicial Disabilities Commission but there is no process for addressing a pattern of substandard performance.

In fairness to Phinn, other judges have had bad days, and maybe it was just coincidence that hers attracted public attention. But there must be some system in place to ensure that a judge’s bad days are the exception, not the rule. Right now, there is no such system.

[Published as guest commentary by the Daily Record on September 19, 2019 but not posted to my blog until December 18, 2019. 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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