Now that all police officers involved in the death of Freddie Gray have been charged by the Baltimore State’s Attorney, I will lay out what to expect in the next 30 days.
Charged by Criminal Information:
There are two ways to charge a felony in Maryland, one way is by Criminal Information and the other way is by Indictment. The Gray defendants have been charged by Criminal Information. Criminal Information means that the State’s Attorney believes their is probable cause the officers have committed one or more felonies. Under Maryland law, there must now be a judicial “rubber stamp” or independent finding of probable cause.
As of now, these defendants will automatically have a preliminary hearing scheduled within 30 days. At the preliminary hearing, a judge will listen to the evidence and make a determination if there is some link between the defendants and the felonies alleged. This is known as probable cause hearing. Most preliminary hearings involve a police officer simply taking the stand and reading the police report into the record . Defense counsel can ask limited questions as the questions relate to probable cause. In cases such as this, it is rare for a district court judge not to find probable cause that a felony has been committed. Upon the judicial finding of probable cause, the case is then forwarded to Circuit Court for trial.
Indictment Still likely:
Even though there is a preliminary hearing scheduled, the Gray defendants are still likely to be indicted by a grand jury in the next 30 days. As are most serious criminal cases in Baltimore, an indictment is issued on the eve of the preliminary hearing to avoid any risk or dissemination of information and avoid giving the defense “free discovery”. An Indictment involves the State’s Attorney presenting evidence of a crime to a group of citizens in a closed and secret proceeding. There is no judge or defense counsel in the room. the state choses what evidence it wants to present. It is rare for a grand jury not to indict when the state is honestly seeking charges. Some joke that the State’s Attorney could indict a ham sandwich if she really wanted to.
I would say there is a 99.9% chance of an indictment between now and the preliminary hearing.
Arrest and Bail:
State’s Attorney Mosby was true to her word in treating these six defendants no different than any other accused. For this reason she issued arrest warrants and did not allow the defendants to turn themselves in. Even more telling is the fact that the arrest warrants were issued on a Friday and will certainly result in at least an entire weekend of incarceration for those defendants apprehended today. The reason for this is criminal defendants in Maryland first appear before a Court Commissioner within 24 hours of arrest. The Commissioner will then either release the defendant, set bail or hold without bail. The factors to consider are risk of flight and danger to the community. In cases involving homicide, “risk of flight” is by definition a serious consideration for no bail because of the lengthy potential sentence (30 years for 2nd degree murder and 10 for manslaughter).
After the defendant sees the Commissioner, if no bail is set (as is expected here with some of the defendants), the defendant will have a bail review on Monday morning around 1!:00am in Central Booking before a District Court Judge. It will be interesting to see what the Judge does Monday because many of the “rioters” received bails ranging from $350k-500K. Even though the factors are applied differently, fundamental fairness says it would raise eyebrows if any of these police officer defendants were to receive a bail less than the protestors. Certainly Officer Caesar R. Goodson, Jr. will be most challenged to receive a bail as he is charged with 2nd degree murder. For further information please email me at ssilverman@silvermanthompson.com or call me at 410-385-2226.