The six Baltimore police officers charged with assault to second-degree murder in the death of Freddie Gray are all home after posting bail. My client, meanwhile, remains in jail on a $250,000 bail, which he cannot make.

His alleged offenses? Misdemeanors committed during the community’s response to the Gray case.  Something is wrong with this picture.

In my 10 years as a public defender, I’ve done so many bail reviews I can’t count them. At Central Booking in my first year, I did daily bail reviews, sometimes at times handling as many as 15 clients. One of the greatest injustices that my office sees in this process is the misuse of pretrial detention as a form of punishment.

In the handling of protesters in the Gray case, now the world is seeing it, too.

The law requires a fair bail review hearing, but indigent defendants, especially those accused of “sensitive” charges, are too frequently presumed guilty by bail review judges and given prohibitively high bails.

No client of mine charged with second-degree murder in a case that’s gained worldwide attention would be given a chance to make bail.

Under Maryland law, when an arrestee is booked, they must be taken to a commissioner “without unnecessary delay and in no event later than within 24 hours” for an initial bail determination. Detainees must have a hearing with a judge on the next business day. A judge can set bail at any dollar amount or “no bail,” meaning no amount of money or collateral will allow for release before trial.

But the six accused police officers posted bails set by commissioners before ever seeing a judge. The officers made it through Central Booking in a few hours because of reported security concerns.

This is an extremely rare feat. Jail officials demonstrated this point when they were forced to release more than 100 of the arrested protesters last Wednesday because they had not been not taken before the commissioner within a day.

At $350,000 and $250,000, the officers’ bails are reasonable for their cases. And the cops posted bail quickly, fearing what a judge might do to them at a hearing.

Now they have the luxury of preparing their case at home, and they don’t have to feel forced into a plea unlike hundreds of desperate defendants stuck in jail before trial.

But the amounts set for clients like mine, facing minor charges are not reasonable. Consider what happened to my client with the misdemeanor charge. His bail was initially set by a commissioner at $75,000. But he couldn’t bail out fast enough, and a judge more than tripled it to $250,000, which might as well be “no bail.”

My client is not alone. Hundreds of poor individuals are detained with excessively high bails relative to their incomes.

A Typical Bail Hearing

“I read the police report and I’m not sure what you want me to do here, counsel,” says the judge overseeing a bail hearing in Baltimore City District Court on Wabash Avenue (for men) and Patapsco Avenue (for women).

Lacking confidence that he’ll be heard, the defense begins arguing after the State concludes. The judge retorts, “I hear you, counsel, but I have to take the facts as written in the police report as true for the bail hearing.”

“What about the fact that it seems like the complaining witness is the aggressor here, judge?” the defense counsel asks. “Also, the complaining witness is here to explain that my client shouldn’t be locked up.”

“I’m sorry, counsel. This isn’t a trial. This is a bail hearing,” replies the judge.

Left unspoken is the fact that this case is likely headed, ultimately, for dismissal or the inactive docket in 30 days. However, because the judge favors the police report, the defendant will be held in jail without bail awaiting trial.

The defense counsel cannot even explain this outcome to his client, who is jailed nine miles away and appears in the courtroom on a blurry television screen. By then, the next bail hearing has been called.

State’s Facts Assumed to be True

When courts conduct bail hearings in this manner, they violate every citizen’s constitutional rights as well as Maryland law.

The Maryland Rules of Court govern bail hearings and list nine factors for consideration in setting bail, including the circumstances of the charge and any information presented by the defense.

Not only are these Rules being ignored, what’s also forgotten is the bedrock of our criminal justice system – the presumption of innocence. Just ask the lawyers for the six police officers how important this principle is.

A bail hearing should focus on the State’s case and the defense’s response. Many judges assume the “facts as presented by the State are true,” meaning the State’s opinion of what happened, often contained in the police report, is gospel.

These assertions have no legal support. The defense has the right to argue their side according to the Rules.

For example, at bail hearings, State’s witnesses often come to court to support the defense and contradict the State’s case. Judges routinely refuse to hear from these witnesses.

Also, the State’s version of events is often based on complaints written by private citizens without any investigation. Imagine the possibilities for abuse. They include lying, retaliating, exaggerating and extortion, but to suggest these motives are behind the State’s case in a bail hearing is blasphemy.

When judges blindly follow the State’s recommendation, it leaves the accused with higher bails for cases that don’t deserve them, hurting poor defendants the most.

Flawed Charges

Judges have a particularly strong pro-State bias on certain types of cases, and the bail hearings stemming from the Freddie Gray unrest are an example of this. Judges are simply ignoring the glaring problems with these cases.

First, charges like petty theft and destruction of property (both of which often work out for probation) are minor. Second, many of the accusations don’t describe what the arrestee actually did.

There were so many citizens arrested in the Freddie Gray protests – 486, according to the police – that officers did not distinguish individuals from larger groups in their reports. Many cases were based on the same vague language in the police report.

This becomes problematic not only in determining bail amounts but in successfully prosecuting the case. Public hysteria has swept over judges, causing them to ignore these deficiencies and hold people in jail when it would be more appropriate to either order minimal bail  or release the person pending trial.

Looking beyond the hot-button Freddie Gray protester cases, consider a recent client of mine without a criminal record who sat in jail without bail before trial.

She was charged with assaulting her abusive boyfriend. A judge never gave credence to the abuse that she herself suffered nor the pending charge that she has against him. Meanwhile, she was separated from her three kids and risked losing her Section 8 housing.

But because she was accused in a domestic violence case, she had the same bail as an accused murderer. Then at her arraignment, more than 45 days after her arrest, she had the “choice” of pleading guilty and go home on probation or sit in jail for a trial that could be a year away from happening. Not surprisingly, she pled guilty.

Punishment Before Trial?

Unreliable witnesses, charges warranting probation rather than jail time, petty offenses (like many of the protest arrests) and improper police actions before the arrest are signs of weak cases, yet judges rarely consider these points during a bail hearing. That they’ll be taken up at trial is cold comfort for people sitting in a cell.

Many of these incarcerated defendants simply plead guilty in order to return to the world: jobs, kids, houses and safety, none of which are guaranteed as one sits behind bars. Given the choice of a probation plea or a postponement because of courtroom availability or witness problems, people would rather plead guilty and go home. The same thing could happen with the protestors still stuck in jail.

Individuals presumed innocent are forced, because of unattainable bails, to sit in jail. Yet those same people can return to the community once they’ve pled guilty. Seems kind of backwards.

Punishment before trial was never an intention of our founding fathers, but that’s what’s happening. We have to hold fair bail hearings to begin to fix this problem. The State should consider this argument before recharging cases from the chaos of last week.
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Todd H. Oppenheim is a felony trial attorney in the Office of the Public Defender, with a decade of experience representing indigent clients before the District Court and Circuit Court.