By Justin George, Luke Broadwater and Ian Duncan, The Baltimore Sun
8:04 PM EDT, April 10, 2013
A car hurtled off the highway, fatally struck a pedestrian and overturned in front of City Hall and scores of downtown witnesses. A day later, police said the driver had walked free without charges.
Despite anger and outrage from those who knew Matt Hersl, the longtime city worker and neighborhood volunteer killed Tuesday, Maryland State Police said they released the 43-year-old driver and left it to city prosecutors to decide whether to pursue charges.
The decision met with criticism from a former leader of the state police, and City Council President Bernard C. "Jack" Young said he was "very disappointed." But criminal defense lawyers and law enforcement officials said the choice was not unusual because vehicular homicide and manslaughter are difficult to prove, and require a thorough and lengthy investigation.
State police said their inquiry is continuing and could take weeks. The agency did not want detain the driver on lesser allegations until then, officials said, because doing so might preclude them from pursuing more serious charges later.
Mary Ann Campanella, who worked closely with Hersl for years in a Little Italy neighborhood association, called the decision "disgraceful."
"I think somebody's got to pay for this wrongful death, and it is a wrongful death," she said.
Hersl died Tuesday after a black 2000 Acura TL that state police said was moving at speeds that may have approached 100 mph veered off an interstate, sped onto downtown streets and struck him before flipping over in the 100 block of N. Holliday St.
A state trooper following closely behind detained the driver before he was treated for minor injuries at Mercy Medical Center and released. Police have identified the driver only as a Baltimore resident, and are not releasing his name because he has not been charged.
If police had cited the driver for a traffic offense, he could have potentially paid a fine and resolved the case, according to Maryland law. Because it is unconstitutional for a suspect to be prosecuted twice for the same crime, the state might not have been able to try him on more severe charges.
"I'm not going to charge him with a lesser crime that may cause some kind of legal concerns with trying to charge him [later] with something more serious," state police Sgt. Marc Black said. "If you have no charges, there's no need to hold him for any certain time"
Hersl was beloved in his Little Italy neighborhood, where he was an active community leader. Black said he understands the anger toward the agency for its decision, but he stressed that police "want to make sure we do a thorough an complete investigation."
"Our first responsibility is to that victim," he said. "We're very sympathetic to the community on the whole but at the same time we want to make sure we serve the community the best we can by putting together the best investigation."
Critics said this week's incident was different from typical crashes, citing the alleged speed of the driver and the visibility of the event.
Edward T. Norris, who has headed the Baltimore Police Department and the Maryland State Police, said it appeared to be "incredibly inappropriate" for police to release the suspect with no charges.
"What if he skips town at 100 miles an hour?" Norris said. "It doesn't make sense. They have a ton of witnesses. It shouldn't take long at all [to process the charges]. But even if the case takes time to build, you don't just release him without charging him."
Black responded by saying his agency discussed flight risk as a possibility with prosecutors.
"Our policy has been, we follow the lead of the state's attorney's office," he said. "If the state's attorney's office tells us to charge now and then let the case come together then that's what we'll do."
Baltimore State's Attorney Gregg L. Bernstein said no weapons or drugs were found in the car. Had they been found, prosecutors could have filed charges in connection with those while the traffic investigation continued. He said cases in which a person is killed by a vehicle are different from those involving a gun or knife.
"When you have cases involving vehicles ... that result in death of serious bodily injury, the standard procedure in those cases [in Baltimore] is to conduct an investigation before making a charging decision," Bernstein said.
He said the simple fact that a car hit and killed a person is not enough to bring vehicular-manslaughter charges because the driver's conduct must rise to the level of "gross negligence."
The investigation will involve an accident reconstruction to determine the speed and details of the crash, Bernstein said. A toxicology analysis will determine whether the driver was drunk or under the influence of drugs.
"You hope the state police will move expeditiously," Bernstein added. "We'll wait for the state police to complete its investigation."
Jim Crawford, a Baltimore defense attorney for more than 20 years who has handled vehicular homicide and manslaughter cases, said such investigations typically play out slowly and methodically.
Police are "going to defer in any type of case like this, normally to the state's attorney's office, because they don't want to screw it up," he said.
Warren A. Brown, a Baltimore defense attorney, said he has never seen a law enforcement agency immediately charge a driver in a vehicular manslaughter or homicide case.
"It takes a lot of investigation for them finally to decide," he said. "They'll bring charges but they'll have their house in order for that to occur."
For example, Thomas Meighan Jr., who was convicted in 2011 of hitting and killing Johns Hopkins University student Miriam Frankl, was not arrested until a week after she died.
At least one past case has shown charging drivers involved in deaths with traffic violations can endanger vehicular homicide prosecutions. In 2004, an Ellicott City woman avoided a vehicular-homicide charge after killing a motorcyclist in a drunken-driving accident because a police officer issued the woman a negligent-driving citation on the night of the crash.
A Howard County circuit judge ruled that the citation protected her from prosecution on a vehicular-homicide charge, because negligent driving is considered a lesser form of motor vehicle homicide.
Hersl's friends are struggling to imagine how the victim would have wanted the case to unfold.
"He was always fair, so I know he would want a fair process. I think he'd leave it to the state's attorney," friend and neighbor Paul Oliver said. "He believed in the system and he believed in doing things right. It's a tough one to swallow."
Baltimore Sun staff writer Alison Matas contributed to this article.
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