On the Record

Maybe I’m naive, but two questions gnawed at me as I began reporting my story in Friday’s paper about the District Court judge who married a man suspected of domestic violence to his alleged victim on the day of trial:

1) Why would a victim agree to marry her alleged abuser?

2) Why would she not testify against him?

Prosecutor Stephen Roscher, who heads the family violence division in the Baltimore County State’s Attorney’s Office, summed it up.

“The internal dynamic when we deal with domestic violence victims is completely different than any other crime,” he said.

He and Dorothy Lennig, director of the House of Ruth’s legal clinic, cited a number of potential contributing factors. Their list is similar to the one offered by the National Center for Victims of Crime.

“Domestic violence is about power and control,” Lennig said.

Knowing that, Roscher has worked with county police on domestic violence case protocol for more than a decade and regularly talks to new recruits about the topic. The strategy, which has been adopted across the country, is to “assume the victim is not going to be cooperative at the time of the trial,” Roscher said.

That’s why police thoroughly document a suspected domestic violence crime scene and get a statement and photos of the victim. That’s why 911 calls are analyzed for “excited utterances” (which can be admitted in court, even though they’re hearsay) and for anything out of the ordinary, Roscher said.

All of this allows Roscher to prosecute a case even without the victim taking the witness stand. It can be challenging, he said, but it’s never impossible.

“There’s never been a murder case where the victim has testified,” Roscher said.

Yup, you read correctly. 30 people are seeking to fill the seat of Judge Edward P. Murphy, who retired Feb. 28. Applications were due yesterday afternoon to the Administrative Office of the  Courts.

By contrast, 22 people applied for a Circuit Court vacancy in 2008.

The District Court vacancy appears to be the first since November 2005, when Judge Philip Tirabassi was appointed to the bench.

Among the applicants are several senior prosecutors and public defenders, as well as an Orphans’ Court judge. The Judicial Nominating Commission for Baltimore County will meet in May and submit a list of nominees to Gov. Martin O’Malley, who will pick one.

A District Court judge’s annual salary is $127,252.

Happy Monday! Here are some law links to start your day:

• Did you know it’s legal to marry your first cousin in Maryland? Legislators, including the powerful head of the House Judiciary Committee, want to change that.
• The ever-fiery Page Croyder says district court judges are handsomely compensated for doing not much work. Anyone want to respond to her allegations?
• It was really tough to get a job as an associate at a top law firm in 2009, even if you were graduating from an excellent law school.
• It’s four years to the day since Clarence Thomas’ last question at oral arguments. A new paper argues that his silence hurts the court and his own reputation.
• Last Wednesday, an Iowa prosecutor returned from a lunch break in a murder trial with ash on his forehead. The defense attorney objected, saying it might sway the jury, the judge agreed, and the prosecutor wiped it off. Thoughts?
• The lady who crusaded against dog poop on the streets of New York, leading the city to enact a pooper-scooper law, has died at age 99. Sounds like she was a real pistol.

So I was acquitted this morning.

Back in November, I got pulled over and cited for “failure to maintain and fasten vehicle registration plate in visible position,” a violation of Transportation Article 13-411. No, I wasn’t driving without a license plate. Rather, my plate had a thick clear plastic cover on it, which the officer told me was illegal in Maryland. We’d bought the cover years ago in Pennsylvania after idiots/thieves/take your pick twice (!) tore off half our plate.

Anyway, I looked up the definition of a registration plate cover under Maryland law, and here’s what I found:

(a) In this section, “registration plate cover” means any tinted, colored, painted, marked, clear, or illuminated object that is designed to:

(1) Cover any of the characters of a vehicle’s registration plate; or

(2) Distort a recorded image of any of the characters of a vehicle’s registration plate recorded by a traffic control signal monitoring article…

This morning, I headed to district court to fight the ticket. It was only a $60 fine, and going to court was an inconvenience, but I was convinced that the ticket was a mistake.

I waited my turn as dozens of other alleged traffic offenders came before the judge, mostly to plead guilty or guilty with an explanation. (Note to the dude who was clocked going 109: I’m thinking there’s no really good explanation for that one.) When my turn came, I pleaded not guilty and then waited until the end of the docket for my trial.

The officer told the judge that my car had a dark, tinted plate cover on it and that he had stopped me and written a citation. I countered that the cover was clear. I told the judge that the intent of the statute seemed to be to prohibit covers that would prevent someone from reading the plate, but that the officer had clearly had no problem reading mine, and those that would interfere with something like a red light camera. Mine doesn’t, as evidenced by the EZ-Pass violation notice I brought to show the judge. If EZ-Pass could read the plate well enough to send us a notice, surely a red light camera could, too. I explained why we had bought the cover; it wasn’t to obscure our plate, but to thwart thieves. We’d bought it in Pennsylvania, not here in Maryland, where the sale of such items is banned. Finally, I mentioned that in the years since we’ve lived in Maryland, no one who’s serviced our car has ever brought up the license plate cover law.

Well, I was either really annoying or really convincing, because the judge agreed with me. My first (and only, I hope) encounter with the traffic court system ended in a not guilty verdict.

I have nothing but praise for the judge, and not just because she did what I requested. As I sat there this morning, I heard my fellow defendants make every kind of excuse for their driving infractions. The judge must hear such things day after day, and it has to get old, yet she treated everyone who came before her with respect, even when condemning their driving behavior. I might not be so patient.

Oh, and the offending license plate cover? I unscrewed the thing and took it off the day after my ticket. I may have been in the right, but who needs the hassle? If anyone tears my plate in half again, though, all bets are off.

Baltimore County has been given another chance to answer a $13,000 question.

A White Marsh couple’s lawsuit seeking to recover money seized by police in a drug raid is headed back to district court to determine if the county should be afforded a new trial.

The county’s request previously had been denied, leading to a circuit court appeal heard in October.

Judge Lawrence R. Daniels, in a mid-December ruling docketed earlier this month, remanded the new trial question because the denial was issued as a chambers ruling.

“[W]ithout knowledge of the reasons for the trial court’s decision, we cannot say, with certainty, that the trial court ‘fairly’ exercised its discretion,” Daniels wrote, referring to guidelines for granting a new trial motion set out in a 1988 Court of Special Appeals case.

The case will be heard Feb. 23 in Baltimore County District Court in Catonsville, according to court records.

Police raided the home of Rogelio and Rosario Simon in February 2006 using a warrant and found 67 guns and small amounts of marijuana, methamphetamine and prescription medication in addition to the money. But only a few guns and the drugs were connected to Marlon Simon, the couple’s grown son and the one under investigation on federal drug charges.

Rogelio and Rosario Simon sued the county in November 2007, seeking to recover his guns and her money. The county claims it no longer has the firearms or the money, having turned everything over to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. But no one from the county appeared at the January 2008 district court trial in the case, leading to a $13,063 default judgment for Rosario Simon. Vinson said during the circuit court hearing that an error in the county’s mail system led to the district court absence.

Daniels, during the October hearing, took the county to task for failing to appear in district court. In his ruling, the judge also notes the county only hinted at its legal arguments with a boilerplate, “bald assertion” in its motion for a new trial.

But Daniels ultimately decided the county could have mounted a “meritorious defense” in district court to the Simons’ lawsuit and was therefore denied a “substantial right” by the lower court’s ruling.

“[T]he most fundamental right of a party against whom suit has been brought is the right to present a meritorious defense,” Daniels wrote.

The firearm lawsuit was dismissed when MacVaugh learned the county no longer had Rogelio Simon’s antique and modern weapons, which were returned to Simon in the fall.

On the heels of Attorney General Doug Gansler’s call to end the popular election of circuit court judges comes an article in the latest University of Baltimore Law Forum with some additional recommendations on how to reform the system.

Retired Judge Dana M. Levitz and Baltimore County prosecutor Ephraim R. Siff (Levitz’s former law clerk) echo Gansler’s call to end judicial elections as we know them. Levitz and Siff say circuit court judges now live a “schizophrenic existence,” apolitical until they are required to “transform into consummate politicians and successful fundraisers” to win an election.

Judges with only a limited time on the bench before having to campaign are particularly hampered by the current system, Levitz and Siff write.

“It can be argued that the first few years of experience are most important to the judge’s evolution from advocate to arbiter,” they write.  “Instead of studying the new areas of the law with which they must become familiar, a new appointee is out most nights and weekends shaking hands and kissing babies at political clubs, community association meetings, bull roasts, charity events, or anywhere groups of people assemble.”

Short of abolishing the elections, the authors recommend eliminating contested re-elections, as Gansler has suggested. Levitz and Siff also propose requiring challengers to choose the particular judge they wish to run against, and requiring district court judges to resign from the bench prior to running for a circuit court seat.

“The one recommendation that is paramount is that Maryland do away with this antiquated system of choosing circuit court judges in contested elections, where the most adept fundraiser and politician is elected to sit in judgment and is authorized to dispense justice,” they conclude.

A Baltimore County husband and wife convicted on animal cruelty charges earlier this year will have their appeal heard next month after a judge agreed to postpone Thursday’s scheduled hearing.

Both Hilton and Donna Silver were unaccompanied by lawyers Thursday in Baltimore County Circuit Court. Hilton Silver, a lawyer himself, said counsel who had agreed to represent him was at another trial; Donna Silver had a letter from the public defender’s office indicating she applied for assistance within 10 days of the hearing, meaning no one could represent her.

Hilton Silver also indicated he had two character witnesses - a prosecutor and a retired judge - who were unavailable Thursday.

Prosecutor Adam Lippe, who had at least four witnesses in court and three on standby, objected to the postponement. Judge Robert E. Cahill Jr., however, agreed to the Silvers’ request and moved the hearing to Jan. 25 but said no further postponements would be allowed.

The Silvers were each sentenced in August to three consecutive weekends in jail and ordered to pay $10,000 in restitution for the death of one horse and neglect of two others at their Windsor Mill home. Lippe said following the hearing that the couple has served their jail time but the fine has not been paid, including $230 owed to a vet for euthanizing one horse at the home.

The delay in the appeals means the two surviving horses remain under the care of the county, which has spent $20,000 so far, Lippe said. The horses have fully recovered at Days End Farm Horse Rescue in Woodbine but cannot be sold until the legal issues in the case have been resolved.

Donna Silver has forfeited ownership of the horses, but Hilton Silver has maintained the horses aren’t his, Lippe said in court.

Since I cover primarily the business of law, I don’t often have occasion to go to Maryland’s district courthouses to look at case files. But yesterday, I got to take a field trip to the Towson district court to check out some documents. I had quite a list, and the very nice file clerks who helped me gently told me that I was limited to looking at five files per day.

Five per day? Who instituted this rule? I understand that the clerks are probably overworked, but this policy makes a total mockery of the presumption that court records are open.

It also stifles a free press. Let’s say that I was going to the courthouse yesterday because I had heard that one judge was giving far more lenient sentences to repeat DUI offenders than his colleagues. (I wasn’t. But that would be an interesting story.) Let’s say I wanted to look at 20 of the alleged softie judge’s cases and 20 each from three of his colleagues, for comparison purposes. That would be 80 cases, and I’d have to come to the courthouse on 16 separate days to get them all.

Maybe that’s the point.

And don’t get me started on the forms I had to fill out for each file I wanted to see. If court records are supposed to be open, why do I have to disclose my name and address and provide my drivers license? At no circuit courthouse I have visited have I been asked to fill out or hand over anything. Nor has anyone ever limited the number of cases I can see per day. What gives?

The surviving horses that were taken from Hilton and Donna Silver are well on their way to recovery,  a Baltimore County animal control official said Wednesday.

“They are doing phenomenal,” said Brooke Birman-Vrany, assistant director at Days End Farm Horse Rescue in Woodbine, which has housed the horses since April.

Birman-Vrany’s testimony was blocked by the judge after the Silvers pleaded guilty Tuesday to neglecting their stable of three. District Court Judge Robert J. Steinberg ruled that she would essentially be giving a victim impact statement on behalf of the horses, one of whom had to be euthanized.

Reached Wednesday, Birman-Vrany said the two surviving Arabians are exiting the “critical care stage” of their training program, with physical rehab that includes round-the-clock care and a strict feeding plan. They are now entering the “maintenance” stage of the program to re-learn how to handle a rider and generally be a horse for a new owner.

Birman-Vrany estimated the horses would be adopted by this time next year, based on the average horse’s stay at Days End Farm Horse Rescue.

The nonprofit organization currently cares for nearly 60 horses, almost all taken in through animal control offices around Maryland. The organization also in some cases takes in horses private owners can no longer care for, which is a growing problem in the current economy; Birman-Vrany said her office receives three calls a day from private owners.

“We’ve had a real increase in horse issues,” she said.

Birman-Vrany praised the work of Baltimore County prosecutors and animal control officers in the Silvers’ case, saying it has a set a precedent for horse neglect cases.

“I was very grateful for everyone who stood up for these horses’ welfare,” she said.

Note: Photo at top left is file art.

Happy Monday!

• Page Croyder observes “serious traffic court” in Baltimore City for a day. The former prosecutor-turned-gadfly is not impressed at the sentences imposed.
• The Washington Post writes about how the new death penalty restrictions could affect defendants already charged with murder. The story also raises the possibility of the governor using the new evidence requirements to commute the sentences of people already on death row.
• Benjamin Polakoff reviews construction contracts in the Baltimore-D.C. area.
• Over the weekend, The Sun had this compelling account of the Carl Lackl murder-for-hire plot. My one nit-picky criticism: why is murder mastermind Patrick Byers’ mother “hooked on heroin, an addict like her six siblings,” while victim Lackl was “struggling with a heroin addiction”? Do you see the difference in language? I think it’s a little heavy-handed and unnecessary, given how good the writer is elsewhere in the story at portraying her subjects.
• The balance of power in big law firms has shifted back to management, writes the National Law Journal.