As COVID-19 Permeates Prisons And Jails, Baltimore Defendants Continue To Be Held Without Bail

On April 28, Angela Burneko sat and listened to Baltimore City prosecutors argue that a teenager who uses a wheelchair was a threat to public safety.  Burneko, a volunteer with the legal observer group Baltimore Courtwatch, said prosecutors from the Baltimore City state’s attorney’s office tried to convince a judge that a Black 18-year-old arrested for illegal firearm possession—stemming from an incident in which he  was shot and paralyzed—was a public safety threat if he wasn’t incarcerated pretrial.

“The ASA still made a claim that just because someone is in a wheelchair doesn’t mean they can’t ‘get around or be a danger to the community,’” Burneko told The Appeal. “I have etched that into my brain. I’ll never forget this.”

The case, Burneko says, exemplifies what Baltimore public defenders, defense attorneys, and legal observers say has been a consistent problem amid the coronavirus pandemic: Despite the fact that jails and prisons are often the epicenters for the virus, prosecutors working for State’s Attorney Marilyn Mosby routinely request to hold people without bond.

Using data provided by Open Justice Baltimore, a group that tracks court records in the city, The Appeal analyzed nearly 7,000 cases in Baltimore City’s district courts between Jan. 2 and July 7. Although the total number of cases dropped 34 percent in the months after the city declared a COVID-19 state of emergency on March 19, the percentage of cases in which defendants were held without the opportunity to post bail—roughly one-third of all people who pass through the court system—has remained solid. From Jan. 2 to March 19, 1,196 of 3,557 cases analyzed by The Appeal—roughly a third of the cases charged in the city —were imprisoned without bond. Since March 20, defendants in roughly a third of the 3,346 total cases analyzed by The Appeal have been held without bail.

For those denied  bond, the three most common charges were second-degree (typically misdemeanor) assault, first-degree (felony) assault, and drug possession with the intent to distribute. 

Spokespeople for the state’s attorney’s office told The Appeal that, as a matter of policy, the office is still requesting no bond for assault cases involving domestic violence and drug cases in which guns are involved.  Indeed, after Mosby announced in May that she would no longer prosecute low-level drug possession, prostitution, trespassing, and other offenses because of the pandemic, in June she dismissed 586 outstanding warrants related to those cases, which the office says means prosecutors are taking the pandemic seriously and changing their practices. In March, Mosby also sent Governor Larry Hogan an open letter urging him to take action to lessen jail populations before the pandemic worsened.

“Since the onset of the COVID-19 crisis, my office has been committed to promoting public health and public safety by reducing the inmate population in both jails and prisons throughout Maryland,” Mosby told The Appeal in an email statement. “As a result of our expanded bail policies and the crimes we no longer prosecute in the city of Baltimore, the jail population is down almost 50% compared to last year. Illustrative of our most recent commitment to depopulating jails and prisons, we proactively quashed and dismissed almost 600 outstanding warrants. Recognizing that public health must be balanced with the need for public safety in a city beset with violence, we are not readily recommending the release of individuals charged with certain serious offenses such as murder, rape, domestic violence, and gun offenses.” 

But Burneko and her colleague at Courtwatch, Christopher Comeau, told The Appeal that in bail review hearings they’ve witnessed across the city, prosecutors still seem to be requesting to hold people without bond in nearly every case. In Twitter threads about hearings on June 16, 17, and 19, Courtwatch noted that, of 57 cases the group observed, prosecutors with Mosby’s office requested that 46 people charged (81percent) be held without bond.

“They seem to still be asking the court to hold the overwhelming majority of defendants without bond,” Burneko said. “It’s a big exception to the rule if the state says anything about releasing the person under any conditions. If that happens, our group chat here will light up.” She added: “They seem to be putting a gun in every crime now—the ASAs make a point in every hearing that the case is drug trafficking with a gun to justify locking people up.”

Similarly, Marianne Lima, lead attorney for the Maryland Office of the Public Defender’s Pretrial Detention Initiative in Baltimore City, told The Appeal her office is frustrated that despite the pandemic, Mosby’s prosecutors seem to be blanket-requesting no bond for those accused of gun possession or domestic violence, no matter what the underlying facts of a case might be.

“The fact that prosecutors aren’t doing more to look into the veracity of these charges is frustrating,” she said. “I think it’s their duty to do this — it’s frustrating that the mere presence of some contraband equates to a deprivation of liberty. If a state’s attorney was just sitting next to a gun without touching it, I’m sure they wouldn’t want to be locked up over that.” She added the office needs “to do a better job individually considering each person’s circumstances, they’re clearly not being thorough enough.” Once a person is detained without bond, she said, they may sit in jail for quite a long time, since COVID-19 has slowed and in many cases paused criminal trials.

The gulf between prosecutors and defense attorneys in Baltimore on bail exemplifies issues playing out in virtually every major city in America right now: whether even self-described “progressive” prosecutors are willing to avoid exposing all people who haven’t gone to trial—even people accused of violent crimes—to coronavirus in jail.

In 2017, the state of Maryland attempted to revamp its bail procedures in order to reduce the use of cash bail and make the state’s criminal legal system less harsh on poor defendants. But multiple studies have shown that reforms may have in some cases backfired: A 2018 study by the activist groups Color of Change and Progressive Maryland found that although rates of cash-bail use dropped in Prince George’s County after the reforms passed, more people were instead being held pretrial without the option to post bond at all. 

Analysts say the same trend has occurred in Baltimore as well. In 2018, University of Baltimore Professor Colin Starger told the Washington Post that rates of those held without bond in Baltimore went “through the roof,” after the bail reform act passed and that people accused of second-degree assaults, in particular, were held far more often without any bond after the 2017 reforms. Before the reform act passed, those defendants would typically have at least been offered the opportunity to post cash bail.

Several defense lawyers and public defenders who spoke to The Appeal said they were frustrated at the number of people imprisoned without bond for second-degree assault and drug possession with the intent to distribute.

“We’re declared innocent until proven guilty, but with COVID-19 conditions inside jails we are rolling the dice on a death sentence before someone even gets a trial date,” Matthew Zernheldt, legal director for the Baltimore Action Legal Team legal support group, told The Appeal. “The system needs to expand options for release for higher penalty charges. Instead of burdening folks with fees, our courts could rely on a multi-tiered system that allows people to call-in or check-in biweekly, or examine limiting community movement in extreme cases.”

Mosby’s office is also far from the only big-city prosecutor’s office struggling with how to handle so-called violent defendants during the pandemic. Philadelphia District Attorney Larry Krasner’s office has, similarly, continued to hold people without bond on gun and domestic-violence cases. Per the Philadelphia DA’s open data portal, jail populations are down less than 25  percent since that city began its lockdown procedures March 16. According to the data portal, firearm arrests this year are on pace to hit their second-highest total in the last seven years. Although Krasner’s office stopped seeking cash bail for low-level cases two years ago, nearly all of the 783 people charged with gun crimes in 2020 have been held on some form of money bond.

In a rare rebuke, reformers roundly criticized Krasner on social media in April for, it seemed, threatening to expose people charged with gun crimes to the coronavirus in jail. 

“Again: If you are arrested by @PhillyPolice for a shooting or other violent crime, you are going to jail,” Krasner tweeted April 13. “It could well be a facility with numerous #COVID19 cases already. You will not be eligible for bail. PUT DOWN THE GUNS—now and always.”

As of July 13, the Maryland Department of Public Safety and Correctional Services reported that 627 incarcerated people and 451 staff members tested positive for COVID-19 in Maryland prisons and Baltimore jails, including all but one facility in Baltimore County. The dueling pressures of the pandemic and the reinvigorated Black Lives Matter movement have exacerbated tensions between advocates and Mosby’s office. Mosby, first elected Baltimore City state’s attorney in 2015, ran on a reform-minded platform—one that some critics say she has not fully lived up to. 

In May 2015, Mosby filed charges—including misconduct in office to manslaughter and second-degree depraved-heart murder—against six officers involved in the in-custody death of Freddie Gray. But in July 2016, after one mistrial and three acquittals on all charges, Mosby dropped charges against the remaining three officers. 

Reformers also remain furious at Mosby’s office for trying police-shooting victim Keith Davis Jr. five times, in what his defenders say were trumped-up charges to quiet and discredit a victim of excessive force. Prosecutors charged Davis with robbery and, later, murder after police fired 44 shots at him soon after Baltimore officers killed Freddie Gray. When Davis was acquitted of nearly all 16 robbery-related charges against him, prosecutors said a gun recovered from the scene was Davis’s and had been used in an unrelated murder. In March, after his fourth trial for that homicide, Davis was convicted and sentenced to 50 years in prison. 

The Maryland attorney general’s office recently indicated that a fifth murder trial is likely for Davis. In late May, The Appeal reported that Davis’s COVID-19-related motion for conditional release was denied. Davis’s attorneys say he suffers from asthma and that he is incarcerated in a coronavirus-plagued Maryland Department of Corrections facility.  “We don’t even have the death penalty in Maryland and leaving these men like Keith in there—we’re reactivating it,” Davis’s wife Kelly told The Appeal. On July 9, a homicide detective involved in the Davis investigation was charged with extortion and kidnapping charges related to a dispute over a contracting job at his home, raising further questions about the case.  

In the fall of 2019, Mosby said her office had begun the process of asking courts to throw out nearly 800 criminal cases handled by 25 city police officers with credibility issues. But advocates and public defenders say that Mosby’s office continues to call dishonest officers to the witness stand while also failing to disclose lists of problem officers to the public.

When The Appeal first contacted Mosby’s office at the end of June for this article, Mosby’s spokesperson, Zy Richardson, responded by attacking the credibility of Courtwatch.

“Have you done any research about our office besides these tweets?” Richardson asked. “Have you followed tweets from this handle generally about the office?”

Burneko said the April case of the 18-year-old in a wheelchair broke her heart. She said the teen, whom The Appeal is not naming because he has not been convicted, was the victim of a premeditated shooting. Police said that as paramedics tended to his injuries, they recovered a gun underneath his body. Although he was not accused of firing the gun, prosecutors from Mosby’s office filed multiple gun charges against him, including illegal gun possession and illegally carrying the gun in public. After the shooting, Burneko said he was transferred from a shock-trauma facility to the Metropolitan Transitional Center in Baltimore, and then back to the hospital after developing severe bedsores. Burneko said the fact that the teen was not accused of firing the gun is an issue her group has seen consistently in so-called gun cases filed by Mosby’s office. 

(A spokesperson with Mosby’s office said that the teen was a “multiple gunshot wound victim who, when medics rolled him over for treatment, discovered a loaded chambered .40 caliber gun had fallen from his person.” The spokesperson said that, since the teen had previously been charged as an adult with attempted first-degree murder at age 15, he had both been barred from possessing a firearm and had been subject to a mandatory no-bail order no matter what Mosby’s office requested.)

Despite the teen’s medical history, Courtwatch said prosecutors demanded the teen be held in prison pretrial as the pandemic surged in carceral settings.

“The judges making these decisions are not doctors, they’re not epidemiologists,” Courtwatch’s Comeau said. “In this case, COVID risk was dismissed out of hand since he was only 18 or 19. There just seems to be a complete lack of empathy here.”