This week, a judge sitting in the Circuit Court for Harford County, Maryland ruled after a lengthy motion’s hearing that the prosecutor violated my client’s due process rights. The result was that all charges including attempted murder and first degree assault were dismissed. This case involved some unique facts and circumstances that if appealed, may garner some attention by the appellate courts.

Pertinent Facts:

On May 22, 2009, a district court charging document was issued by the Harford County police charging the Defendant with assaulting his wife on May 20, 2009 and charging him with the attempted murder of his brother in law on May 21, 2009. The Defendant was held without bail from May 22, 2009 until June 10, 2009 when bail was set at $25,000. The Defendant paid a bondsman and was released. On that date, the charges with respect to the incident with his brother-in-law were dismissed. At that time, the State dismissed the charges because the brother-in-law was on active duty and soon to be deployed out of the country. Thereafter, in October, 2009, the Defendant’s wife invoked her marital privilege and the Defendant was found not guilty of assaulting her.

Sixteen months passed and the Defendant had no other criminal arrests. Despite the fact that the Defendant had no further contacts with law enforcement, at the time of the filing of the indictment in the above captioned matter, the prosecutor requested a no bail warrant. The Defendant was arrested on October 7, 2010 and held without bail. On October 13, 2010, a bail review was held and his bond was set at $250,000. The Defendant paid a bondsman a second time and was released.

Controlling Maryland Case Law:

In Clark v. State, 364 Md. 611 (2001), the Maryland Court of Appeals set forth a test for deciding whether a pre-indictment delay violates a defendant’s due process rights. In that case, the defendant was one of the initial four suspects in a murder. Id. at 616. Applications of charges had been completed. The police questioned whether they had sufficient evidence for the State to mount a successful prosecution so the applications were never submitted to the court. Id. Police began to re-investigate over ten years later and eventually charged the defendant. Id. at 617. The defendant moved to dismiss the indictment arguing pre-indictment delay. The State conceded that the defendant had been prejudiced as a result of the delay. However, the trial court determined that the case should not be dismissed because the State had not purposely delayed indicting the defendant to gain a tactical advantage. Id. at 619. The Court of Appeals agreed and held that a defendant would be required to prove both (1) that he suffered actual prejudice from the delay, and (2) that the delay was the result of a purposeful attempt by the State to gain a tactical advantage over him. Id. at 622. The Court, citing Howell v. Barker, 904 F.2d 889 (4th Cir. 1990), stated, “the basic inquiry then becomes whether the government’s action in prosecuting after substantial delay violates fundamental conceptions of justice or the community’s sense of fair play and decency.” Id. at 633. The police initially investigated the crimes, interviewed witnesses and suspects and pursued leads but did not obtain the information necessary to move forward on the case until a witness was re-interviewed fifteen years later. Therefore, the Court noted that there was no showing that the delay was an intentional, calculated tactic to obtain an advantage over Clark at trial. Id. at 646. Unlike Clark, the Defendant can demonstrate both actual prejudice as a result of the pre-indictment delay and that the State used this delay to gain an advantage at trial.

In our case, the judge found the defendant suffered actual prejudice from the delay. The defendant suffered a deficient memory of the events, witnesses either died or moved, and he also did not have the opportunity to question the alleged victim closer to the incident. The judge also found that the state’s reason for the delay in the indictment was to obtain a tactical advantage over the defendant. Unlike cases that are delayed until new evidence is discovered from further investigation (cold cases, for example) this matter was factual simple and no further investigation occurred after the defendant’s first arrest.

As the Clark Court noted, “the basic inquiry then becomes whether the government’s action in prosecuting after substantial delay violates fundamental conceptions of justice or the community’s sense of fair play and decency.” Id. at 633. In this case, the Judge found the State’s action violated these fundamental conceptions of justice and the indictment was dismissed.

For more information on this case and other Maryland criminal matters, please contact the criminal dense team at Silverman, Thompson, Slutkin & White.

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