Anne Arundel County prosecutors may lose a high-profile manslaughter case without a trial because the trial date was delayed past the legal deadline without the lawyers' bringing it before a judge for approval.
The lawyer for Kirk R. DeCosmo, who is accused of causing two fatal vehicular crashes in 13 years, is claiming that although he agreed to a trial date after the 180-day speedy trial limit, the pact he made with prosecutors is not valid. He has asked the Circuit Court's administrative judge to dismiss the charges.
Under Maryland court rules and laws, the request to postpone the trial should have come before a judge for a ruling, the defense argued. Instead, defense lawyer Richard M. Karceski and Assistant State's Attorney M. Virginia Miles followed a longstanding practice in the court of picking a new date and setting it with the court by making a clerical change.
"If I allow the state to pull the case and the defense to consent to pulling it then the court has now violated the legislative mandate. That cannot be," Circuit Judge Clayton Greene Jr. told attorneys this week.
State's Attorney Frank R. Weathersbee said yesterday that the law sides with prosecutors in that a defense lawyer cannot agree to a delayed trial date and then complain that the delay violates his client's rights.
The prospect that DeCosmo, 39, with a history of drug use, might escape a trial outraged the sister of the woman killed in 1987 in a fiery crash involving DeCosmo.
"To let him go is an absolute crime in itself," said B. J. Brokus of Severna Park, sister of Freda Kay Seifert of Glen Burnie. "This DeCosmo is a serial killer."
"What I am saying is that procedure they have done, they have been doing this for 30 years, whether it is right or wrong. Now the judge is saying, oh, we are not supposed to be doing it that way?" Brokus said yesterday.
DeCosmo, a Severn resident, was expected to plead guilty Tuesday. Instead, after the session was delayed, the family of Harry W. Dailey of Ferndale, who was killed in a crash with DeCosmo's vehicle in January, left the courthouse in tears.
Under Maryland law, criminal defendants must be tried within 180 days of their or their lawyer's first court appearance unless they waive that right. Karceski said he did not talk to DeCosmo about that and DeCosmo did not waive it, though 234 days passed between Karceski's telling the court in March that he was representing DeCosmo and the Tuesday trial date. He said who is to blame was not the issue.
The November trial date was agreed to during the summer. The longtime practice at the Anne Arundel Circuit Court has been that as long as the date is changed at least three weeks before a trial, it need not go to a judge for approval, Weathersbee said. He said that by agreeing to a trial date past the 180 days and then using it to try to win a dismissal, what Karceski was doing was akin to saying, "Aha, got you."
In court Tuesday, Miles argued that Karceski can't have it both ways, that because he was acting in his client's behalf in agreeing to the later court date, he cannot turn around and claim the date violated court rules.
In saying the longtime practice must end, Greene said, "Obviously, the only way to stop it is throw these cases out when it happens."
But Greene stopped short of issuing a ruling, saying he would reread case law and whatever written arguments the attorneys submit within 10 days before drafting an opinion.
The case has taken on a high profile because of DeCosmo's past trouble with the law. In addition to drug convictions, in 1988 he was convicted of vehicular manslaughter in the May 1987 death of Seifert. She died when her car was struck from behind by DeCosmo's vehicle, traveling at between 80 and 100 mph, in Glen Burnie, about a mile from the site of his second crash.