On the day a man facing gun charges was slated to stand trial in May, Baltimore prosecutors asked to postpone his case.
Circuit Judge Jeffrey M. Geller denied the request May 29, which was a little more than a month before the 180-day deadline for a defendant to stand trial in Maryland expired.
Prosecutors dropped the case against the man in court that day, court documents show. The next day, May 30, they secured a new indictment against him with identical charges.
Several defense attorneys say it’s part of a concerning trend under the administration of Baltimore State’s Attorney Ivan Bates, a Democrat, in which his prosecutors are usurping the right of people accused of crimes to stand trial in a timely manner — a bedrock legal principle enshrined in the Constitution and in Maryland law.
“It seems like Ivan Bates and the state’s attorney’s office have lost their moral compass on this,” attorney John Cox, who is representing the man in the gun case, told The Baltimore Sun. “You don’t get to circumvent speedy trial rights. It’s also circumventing the judge’s will.”
Defense attorney Roya Hanna, a former prosecutor who ran for state’s attorney but dropped out of the race and supported Bates, said she had two similar cases.
“It has been a marked uptick,” Hanna told The Sun, calling the development “really infuriating.”
Bates was not available to comment, but Deputy State’s Attorney Thomas M. Donnelly said such instances represent a tiny fraction of the office’s volume of Circuit Court prosecutions.
In an interview, Donnelly said he could identify 40 cases over the last six months where the office dropped a case and recharged it, and believed his prosecutors were justified in each instance.
Of the 40 cases Donnelly found, 27 were superseding indictments where investigators uncovered new or additional evidence and prosecutors added new charges after dropping them, he said. Four more of the cases, he added, involved chemical drug analysis revealing the substances in question to be different than what detectives suspected and had to be charged differently.
That leaves nine cases where prosecutors dropped charges — referred in court by the Latin term Nolle Prosequi, meaning “unwilling to pursue” — and then recharged the same person.
“We absolutely stand behind our prosecutors,” Donnelly said. “And from the evidence I’ve seen of these ‘nol pros’ and rechargings, they’ve all overwhelmingly been on point and a proper exercise of a tool in the toolbox of a prosecutor.”
Defense attorney Andrew Radding, a former federal prosecutor, said the practice Cox and Hanna describe has been going on for decades, but acknowledged there could be an uptick.
“It could be that the caseload is such that the prosecutors need more time or the courts have tightened up on granting extensions,” Radding said. “The flip side of that is that it hurts the defendants. It really wipes out their speedy trial right.”
Bates has bolstered his prosecutorial ranks since taking office, but asked for an extra $2 million in his city budget proposal to hire 20 more attorneys to ease the workload. City lawmakers did not include the money he requested in the budget.
The legal issue is complex, added attorney Andrew I. Alperstein, who said he has not experienced such a practice in the city, but in other parts of Maryland.
“The perception of the law is people think you can’t be charged twice for the same crime. That’s not the law,” said Alperstein, who also was a prosecutor. “The law is that you can’t be tried twice for the same crime.”
He was referring to the legal principle of “double jeopardy,” which holds that a person accused of a crime can’t stand trial twice for the same charges. According to Alperstein, that legal protection is triggered once a trial officially begins or once a judge accepts a plea.
Maryland’s “Hicks rule” says a defendant must stand trial in Circuit Court within 180 days of their arraignment or the date their defense attorney officially enters the case. There are also “speedy trial” rights outlined in the U.S. Constitution and Maryland Declaration of Rights, though neither defines a timeline for someone to stand trial.
Despite the rule, defendants in Maryland are routinely tried outside of the 180-day window, whether it’s because the attorneys’ calendars are full, judges are booked or perhaps a key witness is unavailable.
Cox filed a motion in the case of his client charged with gun offenses asking for the charges to be dismissed based on the argument that the new indictment only served to work around his client’s rights and a judge’s order. He cited legal precedent that distinguishes cases where prosecutors dismiss charges and later recharge the person after discovering additional evidence against them.
“This is a case where the State fell flat on its face in preparation for trial, made untimely disclosures, and found itself inadequately prepared to proceed at trial,” Cox wrote in court papers. “The State re-indicted the matter the very next day, with no additional evidence or investigation. … The new indictment is nothing but a recycling of the initial failed prosecution with a trial date now past the 180 day trial rule.”
Donnelly said the assigned prosecutor became aware the day before trial that a member of Cox’s client’s family showed up at a witness’s house and that the prosecutor “had a duty to investigate that and see what happened.” Cox said his client’s family member went to the witness’s house more than six months before trial, before he even faced charges.
Donnelly said the assigned prosecutor was prepared to try the new case within the defendant’s original 180-day window, but that Cox was unavailable after the original trial date. Cox said that was irrelevant.
“If you can’t do your job, you don’t get to cry foul and just restart,” he said. “You don’t get a redo as a prosecutor.”
Prosecutors have not yet responded in writing to Cox’s motion.
