In Baltimore City, there is no such thing as a fair and speedy trial, and part of that is due to assistant state’s attorneys not doing their jobs. At the start of the pandemic, for most hearings on the bail review docket, the state’s case was argued by a single assistant state’s attorney. Prior to each hearing, the assigned assistant state’s attorney reviewed the case.
As of June 1, 2021, Baltimore City State’s Attorney Marilyn Mosby changed this policy to have every prosecutor in her office argue their assigned cases at bail review hearings. In October 2021, with COVID-19 restrictions relaxing, a massive backlog of trials hit the court system. Bail review dockets reduced from five to three days a week and the number of missing prosecutors increased dramatically. And prosecutors began missing court dates.
The State’s Attorney’s Office has not made the changes needed to address this glaring issue, and in testimony before the city council, they even denied that the problem exists. On June 6, 2022, when questioned by the city council about these missing prosecutors, Mosby insisted that an assistant state’s attorney in her office missing a hearing “doesn’t happen” and insisted at most it happened “once, or even twice.” But why are they absent? The truth is because the consequences of these absences fall almost exclusively on defendants.
Also in June, Baltimore Courtwatch began collecting data on whether the assigned assistant state’s attorney was missing when a case was called, or if another prosecutor had to fill in at the last minute. Since then, Courtwatch has collected data from169 hearings on this question. Of those 169 hearings, 12 had no prosecutor present at all, and 11 had a prosecutor unfamiliar to the case filling in at the last minute, for a total of 23 hearings (more than 13 percent of the hearings during that time frame). In five of those 11 hearings, a prosecutor who knew nothing of the case until moments before the hearing began argued for the defendant to be held in jail without bond. We are often told that those being held are too dangerous to release, but even with little to no information, prosecutors often default to caging people.
This is all the more egregious because the State’s Attorney’s Office often requests that people be held without bond in cases they end up dropping. In the Baltimore Action Legal Team’s 2019 study of district court bail review cases, 70 percent of cases in which a defendant was held for some of their pretrial period ended in all charges being dropped. Multiple studies have shown that the longer the incarceration, the more likely innocent people are to take plea deals, just to get out of jail to try to stop the spiral of trauma created by pretrial incarceration. Absent prosecutors delay this arduous process even more: by not attending hearings and then later choosing to drop charges, prosecutors keep people in jail for no reason for extended periods of time.
When no prosecutor appears, there are multiple paths a bail hearing can take. According to stated orders from the Circuit Court Judge In Charge of the Criminal Division Melissa Phinn, cases are to be heard immediately without an argument from the state. Despite this directive, there are dockets where an assistant state’s attorney present for another case will step in and argue based solely on a hurried reading of the Statement of Probable Cause. Some judges allow this, and others immediately postpone the case. A limited few will do as Phinn instructed, and hear the case without a prosecutor present. In these cases, judges often make the state’s argument for them, and hold people without bail.
In many workplaces, not showing up to do a job as scheduled is grounds for termination; in the State’s Attorney’s Office, it appears to occur without consequence. Meanwhile, if a case is postponed, it often takes weeks to be placed on another bail review docket.
Delays caused by the State’s Attorney’s Office policy result in longer suffering for families. This is happening at the same time that poverty and homelessness are becoming increasingly criminalized throughout the U.S. The longer a person is jailed, the more likely they are to lose their employment. People incarcerated are often financially supporting their families. According to a report published by the federal judiciary system, many people who are held pretrial have unstable housing to begin with, and even a short jail stay worsens this predicament.
Prosecutors are public servants whose salaries are paid by the public, and that includes the people they prosecute and the families and communities impacted by mass incarceration. When those prosecutors miss court appearances, it directly harms people who are jailed pretrial. Missing prosecutors extend the effects of pretrial incarceration—physical and mental healthcare are withheld, people are unable to maintain housing and jobs, and individuals and families continue to be traumatized.
The different standards for prosecutors and people incarcerated is a question of whose life matters to the criminal punishment system. Whether the assistant state’s attorney is missing due to scheduling issues—such as being in trial, health reasons, or sheer negligence—the devastating impact on those individuals being detained creates a ripple of trauma through families and communities in Baltimore.