Officers can be retried in assault, court rules

Charges against 2 off-duty Baltimore police were dismissed because of procedural error

September 11, 2007|By a Sun Reporter

Two Baltimore police officers who had assault charges against them dismissed because of a procedural error can be tried again by city prosecutors, the Maryland Court of Special Appeals ruled yesterday, rejecting the officers' claims of double jeopardy.

Officer Jack H. Odom Jr. was charged with three counts of second-degree assault and Officer Michael D. Brassell with one count of second-degree assault stemming from an altercation outside Maria D's on Light Street in October.

Akhenaton R. Bonaparte IV, who is black, alleged that the officers, who are white, harassed him and called him a racist as he talked with two female friends about African-American history. A fight ensued outside the sub shop and Bonaparte punched one of the men, who he said were not in uniform and never identified themselves as officers. The men were later identified as off-duty police officers.

Bonaparte went to a court commissioner's office and filed assault charges. But a District Court judge dismissed the case because Bonaparte had said in his statement that the officers were on duty, which requires a recommendation by the city state's attorney's office before criminal charges can be filed.

Prosecutors later refiled the assault charges, and the officers' attorneys appealed, arguing that Odom and Brassell cannot be charged a second time for the same offense. The attorneys argued that the state, instead of charging their clients, should instead have appealed the judge's decision to dismiss the case.

But the Court of Special Appeals ruled that the constitutional protection that prohibits a person from being tried twice for the same crime does not apply in this case because the charges were dismissed during a preliminary hearing that involved procedural issues and did not involve the defendants' guilt or innocence.

"In order for double jeopardy to attach, a defendant must risk a determination of guilt," the court said.

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