Old Truths About a New System – The Commissionel System

My last column discussed “The Grand Jury: New Truths About An Old Institution.”  This column will be about old truths about a comparatively new system- The Commissioner System of the District Court of Maryland.

The current system of issuing criminal charges in the District Court of Maryland is governed by Maryland Rule of Criminal Procedure 4-211 and Courts and Judicial Proceeding Article Section 2-608.  Maryland Rule 4-211 in pertinent  part reads as follows:

Rule 4-211. Filing of charging document.

(a)    Citation.  The original of a citation shall be filed in District Court promptly after its issuance and service.

(b)   Statement of Charges. (1) Before any arrest.  Except as otherwise provided by statute, a judicial officer may file a Statement of Charges in the District Court against a defendant who has not been arrested for that offense upon written application containing an affidavit showing probable cause that the defendant committed the offense charged.  If not executed by a peace officer, the affidavit shall be made and signed before a judicial offer.

(2) After Arrest.  When a defendant has been arrested without a warrant, unless an Information is filed in the District Court, the officer who has custody of the defendant shall (A) forthwith cause a Statement of Charges to be filed against the defendant in the District Court and (B) at the same time or as soon thereafter as is practicable file an Affidavit containing facts showing probable cause that the defendant committed the offense charged.

(c)  Information.  A State’s Attorney may file an Information as permitted.   Rule 4-201.

Courts and Judicial Proceedings Article Section 2-608 adds a special requirement of prosecutorial screening which must precede any issuance of a Statement of Charges when application is considered against a law enforcement officer, emergency services personnel, or an educator for an offense allegedly committed in the course of executing the duties of the law enforcement officer, emergency services personnel or educator.

Maryland Rule of Criminal Procedure 4-211 neither mandates prosecutorial screening nor prohibits it.  The practice was until recently that prosecutors played very little, if any, role in screening charges within the exclusive jurisdiction of the District Court.  This has changed recently, particularly in Montgomery County, as well as in other jurisdictions which are currently experimenting or piloting programs of prosecutorial screening either before charges are issued or immediately thereafter.

Generally, however, prosecutors continue to play no role in determining which cases should and which cases should not result in misdemeanor charges being issued.  In fact, it is rare that Commissioners or police seek guidance or even input, let alone approval, from the State’s Attorney’s Office in their jurisdiction.  Furthermore, even when such prosecutorial involvement is sought, it does not always result in the prosecutor’s timely recommendations in the case.

The legal history of this system and the culture from which it evolved is that when the District Court and the Commissioner system was established in 1970-71, prosecutorial screening was discussed and even suggested.  Then, as now, the State’s Attorneys’ Offices around the State of Maryland desired to have the authority to prescreen applications for criminal charges but did not wish to be required by Rule or Statute to pre-screen Commissioners and police charging decisions.  Instead, most preferred then and now to dispose of charges lacking prosecutorial merit and/or substance as they come to trial.  The stated reasons cited for this position remains– the lack of fiscal and human resources to perform or pay for the personnel to screen misdemeanor charges.

This view is strongly reinforced, no doubt, by the elected prosecutors’ belief that judicial or legislative mandate to screen charges presented to Commissioners before they are issued would not be accompanied by the additional attorneys and/or staff necessary to perform the function efficiently.

Having said that, nevertheless, it is clear this system results in unnecessary inefficiencies, inconvenience and expense on taxpayers and citizens whether they be victims or individuals charged with a misdemeanor or non-violent felony in the District Court.  A recent review of the statistics on this reveals that no jurisdiction had less than 22% of its District court Criminal cases disposed of by nolle prosequi and/or stet.  On the dubious upper end of this performance continuum, several jurisdictions had between 50% and 60% of their cases initiated without prosecutorial screening disposed of in this way.

While it is difficult to specifically calculate, it is not difficult to estimate intelligently, the amount of time as well as public and private dollars it costs every year to pay for the prosecutors, judges, witnesses and victims to appear in court on multiple occasions in the high number of cases ultimately nolle prossed or stetted.  This is not to even mention the emotional and financial cost on those charged who either have to have an attorney paid for by the taxpayers (the Public Defender) or by their own funds to defend themselves against charges which statistically are at least 50% likely ultimately to be determined to lack prosecutorial merit and/or substance.  The public wants a criminal justice system that doesn’t consume its time and hard earned private or taxpayer dollars unnecessarily as well as one that is capable of being understood by those who are affected by it and treats all who are brought into it fairly, efficiently and with dignity.

What can be done?  This writer believes that mandatory pre-issuance screening of all Applications for Statements of Charges should not be directed by Rule or Statute until the resources, technological, fiscal and human, are in place to do so properly.  Unfortunately, in this budgetary atmosphere which will provide context to everything that happens in Annapolis in 2008, there is little sign or even hope that these resources would be forthcoming if such a mandate were to be enacted.

For that reason, strong interim measures should be considered which should include the following:

A.     Prompt Prosecutorial Screening of the merits of all Applications for Statements of Charges alleging a misdemeanor offense filed by a citizen.  With respect to cases in which the Statement of Charges is issued with a summons, the review/screening shall take place prior to service.  With respect to Statements of Charges issued with a warrant, review/screening shall take place not later than 10 days after notice of service is filed.

B.     If the Application for Statement of Charges by a citizen alleges facts which the Commissioner finds constitutes probable cause to believe that a felony not within the jurisdiction of the District Court has been committed, the Commissioner shall immediately contact the appropriate law enforcement agency within that jurisdiction and refer the matter for prompt investigation and appropriate follow-up law enforcement and/or prosecutorial action.

C.     Prompt screening by the State’s Attorney of the merits of all Applications for Statements of Charges by a law enforcement officer alleging a misdemeanor or a felony within the jurisdiction of the District Court where there has been no arrest.

D.     Prosecutorial screening of charges issued where law enforcement officers have made an arrest without a warrant within 20 days.

E.      Discretionary, but not mandatory, authority for State’s Attorney to screen any Applications for Statements of Charges by either a citizen or law enforcement officer before it is issued upon request to Commissioner.

These will be an improvement. Ultimately, however, screening by the Office of the State’s Attorney who will ultimately make the decision whether to prosecute every case will insure an accountability for actions and records which currently are far too easy to explain away by reference to the diffusion of authority.

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