Jourdan v. State

¶1dissenting:

¶2I would affirm the decision of the Court of Special Appeals and reverse the order entered by the Circuit Court for Prince George’s County. My reasons were cogently set forth by Chief Judge Orth for the Court of Special Appeals in State v. Jourdan, 22 Md. App. 648, 325 A. 2d 164 (1974), which opinion I adopt. I would add only a few additional words.

¶3As stated by the Court of Special Appeals and the majority opinion here, the standard in this regard since the opinion of Mr. Justice Story in United States v. Perez, 22 U. S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), has been whether the trial court “exercise[d] a sound discretion on the subject ....” It is easy in any given situation, particularly in the isolation of the chambers of an appellate judge, to say that a certain course of action should or should not have been taken. I note that in a recent game involving the Baltimore Orioles a sportswriter questioned the wisdom of the manager in removing his starting pitcher in the ninth inning and his various moves thereafter, Baltimore having been ahead at the time of the removal and having ultimately lost the game by one run in the twelfth inning. The manager, however, was on the spot where he was obliged to make his determinations quickly upon the basis of his best judgment at the time. So was the trial judge in this instance. It is to be noted in this regard that the trial judge was no neophyte. He *513is a distinguished, conscientious, able judge with six years of service prior to this trial, one who is willing to work.

¶4It is all very well now for us to say that it only took the prosecutor 15 or 20 minutes to review the file and be ready for trial and that thus the trial could have continued on that Friday afternoon. There is nothing in the record to show that the trial judge was aware of the fact that the State thought it could be ready in such a brief period of time.1 Moreover, I have seen entirely too many cases in my short time on the Court of Appeals where I thought prosecutors had done just that, taking 15 or 20 minutes to prepare their cases when the interest of the public would have been better served by more adequate preparation.

¶5No doubt the fact that the normal tour of duty for the jury panel was intended to expire that day, with the thought that some of the good citizens serving on the jury might have made good faith commitments for the following week based upon the normal expiration of their time for jury service, went through the judge’s mind and entered into his decision. Moreover, he did direct that an assistant state’s attorney and defense counsel “proceed to the State’s Attorney’s Office and set [the case] at the earliest practical date,” adding, “Go back and list your calendars, and reschedule this case as soon as possible. If you gentlemen cannot resolve it within sensibility I will be back in my office very shortly. I will be available.”

¶6Paraphrasing slightly the opinion of the Court of Special Appeals in its quotation from Baker, Whitfield & Wilson v. State, 15 Md. App. 73, 89, 289 A. 2d 348 (1972), cert. denied, 266 Md. 733, 744, 411 U. S. 951 (1973), I do not believe here “there was an abuse of the trial process resulting in prejudice to the accused, by way of harassment or the like, such as to outweigh society’s interest in the punishment of crime.”