New bail hearing ordered for rape suspect with HIV

January 31, 1995|By Darren M. Allen | Darren M. Allen,Sun Staff Writer

A Carroll County man charged in the rape -- and, because he has the AIDS virus, assault with intent to murder -- of his two step-grandsons was unfairly denied bail by a Carroll County judge, the state's second-highest court has ruled.

In a brief opinion filed earlier this month, the Court of Special Appeals said that Circuit Judge Luke K. Burns Jr. "abused his discretion" in November by declining to review the $100,000 bail set earlier by District Judge Joann Ellinghaus-Jones.

In declining to change the bail amount -- which was related only to allegations involving one of the step-grandchildren -- Judge Burns said, "Well, I find it difficult for me to reverse what Judge Jones has done, in light of my past relationship with Judge Jones."

The intermediate appellate court said that it agreed with the man's claim that Judge Burns "abused his discretion by failing to exercise that discretion." It ordered a new bail hearing before a different Circuit Court judge.

Judge Burns declined to comment on the order yesterday. Judge Ellinghaus-Jones for two years was Judge Burns' law clerk, and Judge Burns and his deceased wife are the godparents of Judge Ellinghaus-Jones' children.

The man's attorney, Judith S. Stainbrook of Westminster, said yesterday that the appeal of Judge Burns' bail decision was made before prosecutors filed charges against her client involving the second step-grandson.

As a result of those charges -- filed three weeks ago after a 3-year-old boy said he was sexually assaulted at least twice in September -- a preliminary hearing was scheduled for Thursday in Carroll District Court. A judge set bail in that case at $200,000.

Ms. Stainbrook said that she would wait until Thursday's hearing before she decides whether to ask for another bail hearing in the first case, which was filed in October after an 8-year-old boy reported he had been sexually abused.

At a preliminary hearing, a judge is asked to decide whether enough probable cause exists to warrant prosecution.

Of the charges, the two counts of assault with intent to murder are expected to be the most hotly debated, Ms. Stainbrook said.

Investigators with the Carroll County Child Abuse and Sexual Assault unit decided to pursue the assault with intent to murder charges because they contend the man knew he had the human immunodeficiency virus that causes AIDS when he allegedly assaulted the boys.

The case is the first time in Carroll that such charges have been filed simply because a defendant has the virus that causes AIDS. It is one of a few such cases in Maryland.

Prosecutors and defense attorneys said charges such as attempted murder and assault with intent to murder are becoming more common in cases involving people infected with HIV, nationally and in Maryland.

According to District Court charging documents, grand jury indictments and interviews with investigators, the two children told their mother that while at their grandmother's house they were sexually assaulted in the attic and in a van.

The grandmother knew the 46-year-old man had HIV when they married. The marriage, the court documents said, began and ended in September. The two had known each other for some time, and the man proposed marriage so that when he dies of acquired immune deficiency syndrome, his wife would be the beneficiary of his life insurance policies, Ms. Stainbrook said.

The Sun is withholding the man's name to conceal the identity of his accusers.

Assistant State's Attorney Tracy Gilmore, who is prosecuting the case, declined to comment yesterday.

If convicted of all charges against him, the man could be sentenced to more than 80 years in prison in each case.

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