The power of judges

Judges are in a uniquely powerful position in courtrooms. Their discretion in applying their power often defines people’s lives for years. Judicial discretion is defined by Cornell Law School as “a judge’s power to make a decision based on their individual evaluation, guided by the principles of law.” Much like cops, even when they clearly act outside the bounds of their authority, they are not held accountable in the moment. At best, another authority will remedy their wrong after the fact. In the meantime, the public must accept the consequences of their decisions. Thus, judges often act with impunity.

Judges act outside their authority in several ways. Most of the abuses of authority by judges observed by Baltimore Courtwatch volunteers fall into one of two categories: ignoring the legal standards that should apply in a given case, or adding standards that act as additional hurdles the defense must overcome. Both of these happen daily throughout our judicial system at every level.

In practice, both of these possibilities almost exclusively harm the accused in a courtroom. Both also produce quite a conundrum for attorneys and defendants alike. You can comply and accept consequences that may, in theory, be addressed later on. Or fight and risk alienating the person who will continue to make decisions that affect you or your cases. 

Baltimore Courtwatch volunteers have witnessed this dynamic consistently with every judge we’ve observed, with few exceptions.

Baltimore City Circuit Court Judge Jeannie J. Hong regularly presides over bail reviews. From January through October of this year, Courtwatch observed 252 hearings where she issued a ruling. In 64 percent of those rulings, defendants were held without bond. When looking at all the bail hearings observed by Baltimore Courtwatch from January to October, fewer than 50 percent of hearings in Baltimore City Circuit Court end with the defendant being held without bond.

In a September report in Baltimore Beat, Courtwatch explained how judges rely on police reports to determine whether a person is granted bail. Police reports are taken “in a light most favorable” to the state, which places the burden on the defendant. In other words, the police account of events is assumed to be fact, stacking the deck against the accused.

Judges often add barriers to agreeing to release someone — either with or without electronic home monitoring. For example, a defense attorney may inform the court that their client has a medical condition that makes incarceration especially dangerous for them, or employment that will be terminated if they are not released, or required attendance at school. Hong has insisted consistently that anything mentioned by the defense that speaks favorably towards their client’s release is backed up by documentation — often in triplicate. 

All other judges we have observed will accept that, as “officers of the court,” attorneys know that lying is unprofessional, unethical, and can lead to severe consequences. Hong requires official certified school records simply to prove enrollment, medical records to prove any medical condition asserted exists, and that employers verify the defendant’s employment. 

This may seem reasonable in the sense that providing evidence is a good thing; however, in the exact same hearings in which she demands documentation from defendants, the accounts of police and the prosecutor are assumed to be fact, despite evidence of police misconduct in the Baltimore Police Department, which has led to criminal convictions and federal oversight of the agency. In fact, they are assumed to be fact even when the defense is able to provide video or other evidence that disproves the State’s assertion. When that happens, defense attorneys are often told by judges that they are not there to “try the case.” The bail review hearing, judges often say, is not to determine guilt or innocence. Nor is it to determine the validity of the charges. We note it is also not to hold evidentiary hearings to determine anyone’s school, employment, or housing situation.

This is beyond what the law requires. Still, defense attorneys are suddenly required to provide documentation that can only be obtained from third parties like schools, employers, and hospitals. The result is defendants, their loved ones, and their defense attorneys scrambling to prove the accused has a medical condition, like asthma. All while their lawyers are barred from challenging more substantial issues in criminal cases like police reports, witness accounts, and body camera evidence. Much like the rate at which people are held without bond, these unduly burdensome and arbitrary requirements are determined by the happenstance of which judge is hearing cases that day.

Baltimore Courtwatch volunteers have observed Hong and others make astoundingly biased statements about who she is willing to release.

In one case, Hong initially refused to release a child who had been assaulted inside a jail, explaining she had done it for his own safety. Hong referred to recent violence at a local high school where the accused was a student, and did not release the child until the defendant’s parent showed proof the teen had been enrolled at another school.   

In doing so, Hong was exposing the child to potential harm in jail. Young and disabled people are often targeted for violence inside jails. In fact, two people have died in Central Booking in the last month — Javarick Gantt and Cortez Johnson. Gantt’s death has been ruled a homicide. As of deadline for this report, no cause of death has been announced in Johnson’s case. Regarding the cases above, each of these students remains held without bond, to the best of our knowledge.

Placing this type of additional burden on the accused means that more people are held while they await the opportunity to argue their innocence. Each of these people, arrested by a police department currently under a consent decree due to the department’s consistent violation of civil rights, deserves better. So do their families who suffer along with them.