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Editorial Advisory Board: An alarming sentence

More than 30  years ago, under the leadership and support of then Maryland Chief Judge Robert Murphy, the Maryland Judiciary and the Bar of Maryland collaborated on an examination of the status of women in the legal profession and, more broadly, how the law responds to issues of gender equality. Now-retired Court of Appeals Judge Lynne Battaglia chaired that path-breaking effort, joined in her task force by a long list of distinguished judges, lawyers, and experts in a wide range of fields.

One focus of that long-ago effort was to educate legal practitioners and judges to share a growing body of research around issues of keen importance to the safety and security of, and equality of opportunity for, women, both those within and without the legal profession. A notable change in the law that grew out of that effort (among others) was a repeal of longstanding Maryland law that, like those of many states, provided that a man could not be convicted of spousal rape.

All of this history comes rushing to mind upon the disclosure of a recent case in the Circuit Court for Baltimore County in which a suspended county police officer was convicted of the rape of a casual acquaintance and the sexual assault of a second victim on a separate occasion. The judge in the case imposed a sentence of 15 years in prison, with all but four years suspended, followed by a period of probation.

Cause for concern

Three aspects of the reports of the case raise alarms for this board. First, the Office of the Baltimore County State’s Attorney is on record as critical of the relatively light sentence imposed on a law enforcement officer who is, according to the state’s attorney’s evidence, a repeat offender. One would have expected, under the circumstances, a fully reasoned explanation by the court for the sentence it imposed. News media reports do not so provide.

What is more remarkable, still, is the fact that the court has allowed the defendant to remain free during what is likely to be, as usual in serious criminal cases, an extended period before the appellate courts can hear the appeal. This is a rare occasion in Maryland. Defendants in Maryland are routinely remitted to jail or prison upon their conviction, whether they plan to appeal their conviction, as most indeed do after a trial. Those convicted of serious felonies — and rape meets the definition of serious felony — never receive such dispensation.

Third, and finally, this trial was before the judge without a jury, by agreement of the prosecution and the defense.  This means that the judge had virtually unreviewable authority to examine the facts presented by the parties and upon doing so, he plainly was convinced, every bit as a jury must be convinced, to convict of guilt beyond a reasonable doubt.

So the court’s decision to allow the defendant to remain free pending appeal (and thereby gain “home detention credit” against the four year active sentence) begs the question: What is the basis for thinking an appeal might be successful? If the defendant’s appeal is unlikely to succeed, then why would he be allowed to put off his prison sentence?

This case has echoes of similar cases (thankfully, only a few in memory) that have arisen in Baltimore County and other jurisdictions around the state in the last three decades in which individual judges seem to bring an unfortunate insensitivity to the need for substantial justice in the public interest in regard to violence against women and the law’s historic toleration for such.

One is left to wonder whether the more things change, do they stay the same?

Editorial Advisory Board members Arthur F. Fergenson, Roland Harris and Ericka N. King did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

L. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

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