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An Incurable Case of the Robes

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I appeared in Judge David B. Mitchell's Court on April 5, 1991, to represent Brian Watson charged with Rape, Sex Offenses, and Burglary. The trial had originally been scheduled for April 8, 1991, but the Assistant State's Attorney had made arrangements to bring Mr. Watson from the Baltimore City Jail so that a nol pros could be entered. The prosecutor had received the results of a requested DNA test on April 3, 1991, and because these results exonerated Mr. Watson, she wished to secure his release from custody as soon as possible. The hearing was scheduled for April 8, 1991 at 9:30 am, however, pursuant to my request to be present, it was continued until 2:00 pm, when I was able to get to the courtroom.

I requested that I be permitted to address the Court for "a minute". The Judge refused to allow me that opportunity, informing me without any possible knowledge about what I was going to say that "this is not the place for that" and to "take it to the courthouse steps." When I persisted and requested permission to allow my client to address the Court, Judge Mitchell again denied the request.

I informed Judge Mitchell that this was an innocent man who had been wrongfully held in the Baltimore City Jail for 9 months. It was difficult to explain to my client how we could call such a process "justice" or how we could share any pride in a system that could be so unfair and calluous.

I wrote to the Judge a few days later in an attempt to share my insight into what happened to Brian Watson and thereby sensitize him and perhaps others on the bench. I told him I had always found him to be a fair-minded and concerned person in the past and I hoped he accepted this criticism in the spirit in which it was offered.

In the letter, I explained that on June 25, 1990, at 4:25am, the victim was attacked in her home in the 4000 block of Old York Road. She had never seen her assailant before and described him as a black male, 5'7"-5'9", 140-160 pounds, brown skin, wearing a white jogging suit and maroon T-shirt. The assailant told her that somebody had paid him $10,000.00 to get her daughter for taking someone's money. He said, however, that his twin brother knew the daughter and didn't want him to hurt her and that the daughter had gone to Northern Parkway High School. The victim told the police that the rapist showed her a scar on his forearm claiming that it was done to him as an initiation into a drug gang called the Bloods.

On July 3, 1990, the police showed her photos, yet none looked familiar. On that date, she informed the police that she had been looking through her daughter's yearbook and had seen a photograph of a black male that resembled the black male who had raped her.

In the yearbook, Brian Watson was depicted in a portrait pose next to the victim's daughter's photo. The police immediately retrieved a photo of Brian Watson from the Baltimore City Police Department files. They added five more to it and showed them to the victim who positively identified the photo of Brian Watson. Mr. Watson's photo was on file because he had been arrested for shoplifting. He had never been incarcerated.

Brian Watson was arrested at his home on July 5, 1990. Bail was set in the amount of $750,000.00, and he was committed to the Baltimore City Jail. At the time of his arrest. he had a large orange streak across the right side of his otherwise black hair.The police subsequently removed this orange streak and Brian Watson was placed in a lineup with four other tall, black males. The victim identified him as being her assailant.

The initial trial date of January 9, 1991, was postponed to await the results of a DNA test being performed on the sperm discovered on the victim's sheets by the Crime Lab. Mr. Watson had given samples of his blood, saliva, head and pubic hair on July 5, 1990. The State, for some unknown reason, did not request these specimens, which he willingly gave, until December 5, 1990, some four months after his arrest.

Brian Watson was born on January 7, 1968. at the time of his arrest, he was working at Memorial Stadium as a cook. He was working six days a week for the minimum wage and during the two years he had been employed, he had impressed his supervisors with his dependability. His work records for the pay-period, ending June 27, 1990, showed that he reported to work as usual at 7:48 am on June 25, 1990. The victim had reported that the attack had taken place between the hours of 4:25 am and 6:30 am. Mr. Watson was a 6'2", 180 pound, dark-skinned man with neither a twin brother nor a scar on either forearm. He did not own a white jogging suit. He had a large gold crown on his front tooth that was not removable and applied in 1988, as medical records from the Baltimore Family Dental Center demonstrated. In addition, a photo taken on June 24, 1990, the day before the rape, depicted two other males standing with the orange-haired Watson. The photographer and the subjects were prepared to testify as to the date and circumstances surrounding the taking of the photo. Mr. Watson's girlfriend orange-striped his hair for the first time in May of 1990 and would have testified that she renewed the orange application on June 24, 1990, just before the photo was taken.

Brian Watson's mother, Linda Watson, had worked in the Emergency Room at the University of Maryland Hosptial for 15 years. She knew he was home at 6:30 am on June 25, 1990 because, as was her habit, she called him there. He was in his bedroom asleep when she called. Both Mr. Watson's girlfriend and his sister were also present with him at the time the rape took place and were prepared to testify to his whereabouts.

It is fair to say that mistaken identification is one of the leading causes of miscarriages of justice. This case represents such a miscarriage.

I complained that I understood that the entry of a nol prosequi is completely discretionary with the State's Attorney and that the accused has no right to object, yet it was also clear that since fundamental fairness should be the ultimate goal of the proceedings, the accused should be permitted the opportunity to address the court. I lectured that it was the responsibility of a trial judge to safeguard both the right of the accused and the interest of the public in the administration of criminal justice. Allowing an accused a few minutes to make a public statement would have facilitated these responsibilities. For that reason, I explained to him, I was requesting the Maryland Criminal Defense Attorneys' Association (or MCDAA) to propose a rule change which would provide a defendant the right to address the court when the State wishes to drop the charges it has brought against that defendant. Mr. Watson would receive no compensation for his false detention; he lost his job and had to expend money for legal fees. The Court had no power to redress his grievances or to right the wrong done to him, yet prohibiting him or his counsel from making a public statement in the appropriate forum, a court of law, added insult to his already substantial injuries.

I was so furious that I spent a couple of days very carefully crafting a letter to the court. Since I had known David Mitchell since he was an assistant public defender and an assistant state's attorney, I had an easygoing relationship with him. In fact, after the dialogue in the courtroom, he called me up to the bench and asked how I was doing. I told David that this guy was innocent and deserved the right to say something. The Judge looked me in the eye and said, "Ah, take it to Channel 13." I was furious. After carefully writing my letter, I sent it to him with a copy to the prosecutor. Several days later, I received a letter from him with my letter included. He told me that there was "a certain cathartic effect in directing a missive regarding one's concerns, but in doing so, many have the good thought to recognize the benefit and then, once written, destroy it. Your letter of April 15 should have met that same fate (in other words, shove it up your butt)." He told me in the letter that because of our friendship of many years, he would not allow its contents to damage a more than 20-year relationship. This guy just plain didn't get it. It occurred to me that I was no kind of lawyer if I didn't have the opportunity to speak. I recalled that when I was running for State's Attorney, I went before the Monumental Bar Association in order to try to get them to endorse me. They had quickly run through an endorsement of Dwight Petit without giving my candidacy a chance. I insisted on attending a meeting of the association and was required to sit outside while the 100 or so black lawyers decided how to handle me. I was allowed to address the group and was told by David Mitchell, the then secretary of the group, that I had five minutes. When I turned to him and asked who was keeping time, he said that he was and that my time had already started. I did my best with my pitch, being quite honest while grabbing my white skin and indicating that it was the real reason why I was not being endorsed. It was my intent to make everybody feel uncomfortable. I think I was successful. In any event, I was not about to take this kind of abuse from Judge Mitchell anymore and so I wrote to the MCDAA, hoping to get them involved. I included the correspondence and asked that the Association propose a rule change to provide for such a irght of allocution at a nol pross. Nothing became of it, but it was a good way to publish what had taken place.

Over the years, I had always respected a political columnist who wrote first for the News American and then the Sun. He also coincidentally appeared weekly on a Channel 13 television news show as a commentator. He was the perfect person to follow up with Judge Mitchell. I called him to explain that this judge had "a case of the robes". He asked me to repeat myself, and I explained that this judge had robitis, which occurred to some individuals. It included serious swelling of the head and certain bulllying, cruel, mean, and narrow-minded elements which were part of the disease. The individual thought he had been anointed, not appointed and had lost sight of his duty position. In short, he was dangerous.

It was with great pleasure that I read Michael Olesker's column several days later: "Silence Compounds Injustice of Jailing". Judge Mitchell refused to discuss the case with Michael Olesker, and the prosecutor refused to accept Olesker's repeated calls. His column quoted an interview with Watson, who said, "I never saw the lady in my whole life and I didn't know what was going on. I got out of the bathtub and the police were at the door and the next thing I know, I'm behind bars. I nearly went crazy at the city jail. It was real bad. I was thinking of killing myself over something I didn't do. I mean, you see what goes on in that place. It drives you crazy and here I was locked up with nothing to do with it."

Several months later, I received a telephone call from Deborah Weiner, an invesitgative reporter from Channel 45, who was doing a series of prgrams on people who had genuinely been innocent and had been prosecuted. I was more than happy to go on the air, explain what had happened to Watson, and provide Channel 45 with all the materials that I hd accumluated. It made for excellent television. Before I was interviewed, I schooled myself to stay calm and be the voice of reason. I contemplated the best way to handle the bully and realized that I had now earned my opportunity to speak. I was pleased with my performance when I wtached later.

I wasn't in front of Judge Mitchell for a couple of months, and when I did see him, it was clear that he was furious with me. I just eyeballed him and was very careful about what I did and said. Several times since then, I have appeared in front of him. It has not been pleasant.

 

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