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‘Frivolous’ v. ‘No trust here.’ Rift grows over Maryland judge’s job swap

2023-10-18 00:00:00.0 华盛顿邮报-华盛顿特区原网页

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A top Maryland prosecutor under scrutiny after hiring a sitting judge lambasted his public defender counterpart in a court filing, asserting that the attorney was engaged in a “baseless and quixotic” legal pursuit that questions the timing of the staffing change.

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“All signs, all evidence, and all suggestions point to the frivolity of the argument, and the pursuit of it should end,” Montgomery County State’s Attorney John McCarthy and Assistant State’s Attorney Peter Larson asserted in documents filed in court.

Montgomery Public Defender Michael Beach — their target — had argued that the timing of a carjacking trial presided over by then-Montgomery County Circuit Court Judge David Boynton last year should be reviewed, given that Boynton later moved to McCarthy’s office to supervise that office’s felony trial division.

Beach said he should be allowed to question McCarthy and Boynton under oath about when their job discussions started. Depending on that timeline, Beach said, his client may be entitled to a new trial before a different judge.

More broadly, Beach has asserted in court filings and hearings, the “cavalier attitude” in which McCarthy and Boynton handled the job discussions — doing so as Boynton was hearing and ruling on criminal cases — has compelled him to ask hard questions on behalf of his client. “An evidentiary hearing is needed,” Beach said in court this year. “There’s no trust here.”

McCarthy remains steadfast that Beach’s request over the carjacking trial is pointless because any job discussions with Boynton went back no further than Nov. 17, 2022 — well after the carjacking trial took place on Oct. 3 and 4, 2022. In the new filing, McCarthy added that he met with Beach in person this year and gave him documentation establishing the Nov. 17 timeline only to have Beach now saying that that is not good enough.

“He impugns the integrity of the judiciary and the prosecutor without justification, or even an attempt at justification beyond conjecture and speculation,” the state’s attorney’s filing states.

In courtrooms across the nation, the relationship between prosecutors and public defenders is designed to be adversarial. What is noteworthy about the clash in Montgomery County, Maryland’s most populous jurisdiction, is that the head of each office has squared off in legal proceedings over basic questions of trust and good faith — citing the Maryland Attorneys’ Rules of Professional Conduct in their criticisms of each other.

A fixture in Montgomery legal circles for decades, McCarthy was elected state’s attorney in 2006 and has won a succession of unopposed or landslide reelections to supervise the office, which has about 85 lawyers. Beach formerly worked as a public defender in Prince George’s County, Md., and in Southern Maryland, becoming Montgomery’s top public defender last year. His office has 32 lawyers.

A review of cases handled by Boynton late last year and early this year as detailed by The Washington Post in April showed that he presided over at least 18 criminal cases without disclosing to defendants or their attorneys that he was discussing a pending job with McCarthy. Court ethics experts criticized his lack of disclosure or recusal from the cases, citing rules designed to promote judicial independence.

Boynton said earlier through a judiciary spokesman that the job switch had no effect on his rulings.

McCarthy has said he never tried to hide the hiring of Boynton, and that presenting Boynton to his prosecutors during a Dec. 7 staff meeting as a soon-to-be hired supervisor was an effective form of disclosure because news quickly spread among local lawyers. McCarthy has said nonetheless that out of an abundance of fairness, he would agree to requests for new hearings — in front of a new judge — for matters that had gone before Boynton dating back to Nov. 17.

The challenges have resulted so far in a new sentence in the case of a Magruder High School student who shot and grievously wounded a fellow student in a bathroom in early 2022. A private defense attorney, not Beach, filed a request for a resentencing in that matter.

David Boynton makes a statement when running for Montgomery County Circuit Court judge ahead of the November 2020 election. (Video: Montgomery Community Media)

The trial being challenged by Beach, the matter to which McCarthy recently responded, involved a violent carjacking — recorded on a widely viewed surveillance video — that occurred on Connecticut Avenue just south of the Capital Beltway. A lone assailant, his face obscured by a large hood, attacked a 42-year-old woman who had just pumped gas into her Audi. He chased her around the SUV, tackled her, struck her in the chest and face, and drove her car away. The next day, police in neighboring Prince George’s County stopped the Audi. Two of the three occupants ran off. Officers caught one of two, Tyrece Jones, and he was eventually charged with the carjacking.

His jury trial before Boynton started Oct. 3, 2022. Prosecutors presented evidence including data from Jones’s cellphone that put him near the gas station at the time of the crime; shoes found at his home that matched those seen in the surveillance video; and the fact that he was intercepted while driving the stolen SUV. The victim further testified that Jones was armed with a handgun and struck her with it. Jones’s attorney countered that the victim’s description did not match Jones and asserted that one of the other two men who were in her stolen SUV had been the carjacker. The grainy surveillance video did not show clearly whether the woman’s attacker was armed.

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Key documents in Tyrece Jones’s carjacking trial arrow left arrow right

Several legal arguments have been filed in the case of Tyrece Jones, who was convicted of carjacking in a trial in Montgomery County presided over by then-Circuit Court Judge David Boynton. Jones’s defense attorney Michael Beach has argued that his client’s case should be reviewed given that Boynton later moved to the office of Montgomery County State’s Attorney John McCarthy to supervise the felony trial division. Read the filings.

Click here to read Public Defender Michael Beach’s initial request for a new trial and here for the state’s attorney’s response.

Click here for the motion to disqualify the state’s attorney’s office from the matter Beach filed and the state’s attorney’s response here.

Click here to read appellant arguments over then-Judge Boynton’s key rulings in Jones’s trial and here for the state’s response.

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At the close of the trial, and out of the presence of the jury, Boynton told lawyers that as part of his instructions to jurors, he intended to tell them that they could, if they chose to, infer that because Jones was found driving the carjacked SUV, he had committed the carjacking. Jones’s attorney objected, saying that instruction could give jurors an unfair route back to the crime. Boynton overruled him, saying the inserted language would simply help with a potentially confusing part of the law.

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The jury came back with a mixed verdict — finding Jones guilty of carjacking and second-degree assault but acquitting him of armed carjacking, use of a firearm and first-degree assault. He was later sentenced to eight years in prison.

But whatever decisions Boynton made during the trial, according to the timeline laid out by McCarthy’s office in court filings and in hearings, occurred well before any job discussions with Boynton. McCarthy has cited two key dates: Oct. 20, when it became clear that his Major Crimes Division chief, Marybeth Ayres, would be leaving and needed to be replaced; and Nov. 17, when, according to McCarthy, Boynton told one of McCarthy’s top deputies: “You know what, I wouldn’t mind coming back to the office.”

“This date is almost an entire month and a half after the trial in the [Jones] case,” McCarthy’s new court filing states.

Because of all the professional relationships at play, the matter has been assigned to a judge outside the county: Prince George’s Senior Judge Leo Green Jr. He has so far held three hearings on Beach’s challenge.

From the start, Beach has said his request in the case should be viewed in what he sees as a larger picture of Boynton and McCarthy’s not taking seriously the potential conflicts of interest in the job switch. Beach has cited a different case, from January, when even after Boynton’s conduct was starting to be questioned, the judge issued a key ruling in a manslaughter case — siding with prosecutors — rather than recusing himself.

“It would be irresponsible of me as an attorney advocating for my client to simply concede — without more from the state’s attorney’s office — that [Nov. 17] is the date everything started and there wasn’t even a whiff of a discussion prior to that,” Beach said in court.

At that hearing, Green wondered aloud whether Beach could become comfortable with McCarthy’s Nov. 17 timeline without having a full-blown evidentiary hearing, and he asked Beach whether he might meet informally with Boynton and Larson of the state’s attorney’s office, or whether Beach might accept an affidavit from Boynton.

Beach ended up meeting with McCarthy in McCarthy’s office, according to the prosecutor.

McCarthy said he gave Beach printouts of text messages between McCarthy and one of his top deputies from Nov. 17, 2022, messages that McCarthy said established that the job discussions began six weeks after the Jones trial.

According to the text messages, McCarthy said, he received a text at 4:06 p.m., Nov. 17, 2022, from the deputy that stated: “Wanted to mention we now have a new candidate to replace Marybeth as head of Major Crimes. Let’s discuss tomorrow.”

McCarthy said he didn’t see or respond to the text right away, but did so in one word at 9:42 p.m. that evening: “Who?”

The response: “Judge Boynton wants the job.”

“Up to that point in time,” McCarthy said in an interview, “I had no idea he was interested in it. That’s critical in the Jones case.”

Beach declined to comment, saying he would respond in legal filings and at court hearings.

In the new filing, McCarthy’s office added that Beach has a duty to put forth evidence if he wants to continue the effort: “The defendant’s arguments demanding a new trial are based on rumor, conjecture, and bald suspicion.”

The parties are due in court again on Oct. 27. The first, and perhaps only issue, to be decided then is Beach’s request that before the timeline can be sorted out, Green should disqualify McCarthy’s office from further proceedings and bring in an outside prosecutor.

McCarthy described that request as part of Beach’s acting in bad faith.

“The defendant continues to proclaim that some sort of fraud or unethical behavior took place without providing the court with a foundation for his allegation. He will not prove by a preponderance of the evidence that the negotiation began before or during the trial, as is his burden.”