Op-Alt: A public defender talks about our broken bail system

City Paper

My client, Dominick Torrence, was arrested during the Freddie Gray protests and held for a month in jail on a $250,000 bail. Finally, he was released when the state agreed to dismiss his case. He should have never been arrested. He should have never been held in jail on an exorbitant bail amount that he could never afford. He should have never had to wait a month to get his life back. His sad tale is emblematic of what occurs nearly every day in the Baltimore City criminal justice system. It is one that I know all too well as a felony trial attorney of more than 10 years in the Public Defender’s office.

On April 28, Torrence was arrested by officers from several different counties on North Avenue near the intersection of Fulton Avenue where protests had turned violent. The police claimed that Torrence was part of a group of people throwing rocks at firefighters. Supposedly, a Baltimore County officer in a helicopter flying overhead somehow alerted officers on the ground of the specific individuals involved in this incident (as if this incident was distinguishable among the chaos). According to the police on the ground, they also saw an individual throw a rock and named that individual in their report. The named person was not my client. Three more young men, including my client, were arrested. It’s unclear as to the proximity of the four arrestees to one another. Torrence was charged with rioting and disorderly conduct.

Torrence was at the house of a cousin that lives on North Avenue. It was late and he needed to get home to his girlfriend who was with their kids. Torrence went outside, despite the unrest, and attempted to get a ride from a neighbor. Officers then snatched him off the street. This block of North Avenue has a very wide sidewalk allowing for the houses to have front steps and a front patio, all of which is private property. Several people from his cousin’s house were outside, but still on their property, when Torrence was arrested. They support his account of the arrest. They also told me that the cops pelted them with rubber bullets as they stood on their own property. They were forced to retreat into their own homes, and, once inside, ordered not to look out of the windows. As this was occurring, the street forces swallowed up Torrence.

Torrence did not know his alleged conspirators. They all live in Herndon, Virginia and were all about five years younger than him.

Not only did Torrence have a legitimate defense, it was obvious that the state would never be able to prove the case against him.

I represented Torrence at his bail review on April 30 in District Court. A judge reviewed his bail of $75,000 set by a commissioner upon Torrence’s arrest. We pointed out the problems with the state’s allegations against Torrence and attempted to explain what happened, to no avail. The state’s attorney who does bail reviews requested for Torrence to be held without bail. These were misdemeanor charges and they wanted no bail.

Torrence’s bail review was typical of that of too many of my clients. Only one version of events counts to judges, the state’s version. Judges actually believe that the state’s allegations (usually from a police report) should be taken as true, when there is no legal basis behind this theory. To the contrary, The Maryland Code and Court Rules allow a judge to consider the nature and circumstance of an arrest along with any defenses. The Judge set Torrence’s bail at $250,000, an insurmountable level for him and for most of my clients. Torrence also had a minor traffic case for which the Judge was willing to release him. We chose to have him held on a nominal bail for the traffic case ($100 at 10 percent) so he would accrue time for both cases because we assumed the rioting case was going forward. His trial was set for June 2.

I normally don’t work on misdemeanor cases, but my office allowed me to stay with Torrence. I got our witnesses’ accounts together and, putting all of our cards on the table, I forwarded the information to a supervisor at the State’s Attorney’s Office. Sadly, if I had not done this, or known whom to talk to, nothing would have been done by the state. With tremendous caseloads and limited resources, city prosecutors often can’t look at cases until shortly before court dates. As public defenders, we go through the same time crunches. The difference is that we aren’t the ones holding people in jail before trial.

In the meantime, in Circuit Court, a colleague, Zina Makar, an OSI Fellow specializing in challenging illegal pretrial detentions, and I filed a habeas corpus petition for Torrence. The habeas motion essentially calls for another bail review under a different standard. We try to be proactive when we see inappropriate and excessive bails being set in District Court, but it takes several weeks (sometimes a month) to even hear back from Circuit Court and get a hearing scheduled. Often, judges deny our requests to even have a hearing. Torrence’s hearing was finally scheduled for six days after his trial date and ten days after his release, which, of course, does him no good.

Fortunately, my contact at the State’s Attorney’s Office did the right thing as soon as they could. After about a week of no response, I arrived one morning to a voicemail saying that the state had brought the case into court on May 27 and dismissed all of the charges. 

Torrence, however, still sat in jail for his traffic case, for which the bail review judge agreed to a release. As fate would have it, the judge was on vacation. Another hurdle. Even if they were in town, paperwork has a way of mysteriously vanishing at the jail. So, I advised Torrence’s family to just pay the $10 to get him out. $25 and roughly eight hours later, Torrence was home. Eight hours, while appalling, is typical for someone to be released (except for police officers). New to me, though, was the jail’s insistence that they could not take a bail payment of less than $25. Torrence was released from custody in the early morning hours of May 28.

His girlfriend, Markeisha Brown posted the $25 bail. That bail payment exhausted one quarter of her bank account. While Torrence sat in jail, Brown had to drop out of school, having no one to help with the kids and unable to afford tuition. She struggled to make ends meet and had her lights cut off while he was in jail. It will be months until they are back on their feet.

What about Torrence’s monthlong experience? To start with, drinking water was in such short supply that inmates would often use toilet water to drink until the toilet backed up. Days without showers. Food that tastes like cardboard. No air conditioning. Overcrowding. Constant fights and threats of physical danger. Remember, the jail is not a facility for guilty people. This is for individuals as they await trial.

I never did find out why they dismissed Torrence’s case, and I don’t care. What’s important is that he’s home. Every day we see cases getting dumped after someone has rotted away in jail for months or even more than a year. We see people copping out to pleas for probation just to get out of jail. When will it stop? Perhaps when judges start setting bails with an eye toward reality or when we completely overhaul the bail system. 

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