Attempting suicide is not a crime under Maryland law. But an Eastern Shore man was convicted of it

An Eastern Shore man was convicted this week on rare criminal charges of attempting suicide and given a sentence that could land him in jail.

The 56-year-old man pleaded guilty Thursday in Caroline County District Court to one count of “attempted suicide” and was sentenced to a three-year suspended jail sentence, and two years of probation. The Sun typically does not name people involved in suicides.

Caroline County’s interim top prosecutor Joe Riley told The Sun the charge was “not something I’ve seen before” and said he would not pursue it in the future.

“It’s not like we’re trying to put this guy in jail or anything,” Riley said. “We’re trying to get him into mental health treatment.”

David Jaros, a law professor at the University of Baltimore, said the case struck him as a “poor use of discretion.”

“I find it hard to believe saddling this guy with a record and probation that could result in jail time is the best way to resolve what is clearly a mental health problem,” Jaros said. “This is a classic example of how the criminal justice system can ultimately create hurdles for a person trying to get the help they need.”

The charges apparently derive from English common law, rules that were in place when America declared its Independence from the British in 1776. The state legislature has since enacted its own laws, but Maryland continues to recognize common law crimes. Some charges frequently brought, like “misconduct in office,” are common law crimes with no specific penalty, leaving it up to the judge.

“There are relatively few states that still recognize common law crimes,” said retired federal judge Frederic Smalkin, a professor at the University of Baltimore law school. “The best answer I can give you is nobody in Maryland has felt enough compulsion to get rid of them.”

Smalkin said suicide was once a crime in England.

“You would ask the logical question: Who are you going to prosecute?” he said.

At the time, it was used to penalize the dead by forfeiting their property to the crown, “punishable by ignominious burial on the highway and forfeiture of the suicide’s goods and chattels to the king.”

There are few appellate decisions in Maryland on the topic, he said. In 1981, Maryland’s highest court found in an insurance case that “suicide is no longer a crime either in England or the majority of American jurisdictions, and no American jurisdiction punishes a suicide through forfeiture of goods or any other means.”

The only other citation Smalkin could find came in 2005, from the Court of Special Appeals, that said it was “questionable at best whether Maryland recognizes suicide as a common law crime.”

It’s against the law in Maryland to assist someone in committing or attempting suicide, but that law doesn’t speak to trying to take one’s own life.

Calls and emails to the convicted man’s attorney were not returned.

In October 2016, the Caroline County man was arrested by state police after a relative called and said the man had been drinking, was suicidal and had a gun. A state trooper had arrived on scene to find the man being held down by his brother, with a shotgun on the ground that the man was trying to retrieve, according to charging documents.

A former police officer, the man told the trooper that he was “extremely stressed and depressed about his career” and “was ready to kill himself and if he didn’t get to do it today, it will be tomorrow.”

“While speaking with him, he had several outbursts asking for me to just kill him already and if I didn’t he would give me a reason to,” the trooper wrote in charging documents.

The case was presented to a District Court commissioner, who approved charges of attempted suicide, reckless endangerment, and endangering his safety and the safety of his brother while intoxicated.

In Maryland, police officers present a case to a District Court commissioner, who reviews it to determine if sufficient probable cause exists to charge someone. The commissioner also can determine what those charges should be. Though they are judicial officers, most commissioners have no legal background.

“Commissioners are trained on various statutes, the case law involved, and common law charges,” said Nadine Maeser, a spokeswoman for the state judiciary. “The judiciary maintains a charging language database that includes all historical information on violations of law, including common law charges. … Over time, statutes have been enacted that overtake the common law, but there are still common law charges that endure.”

Maeser said District Court Commissioner Christine Jallade approved the attempted suicide charge. She is no longer a district court commissioner, and attempts to reach her were not successful.

But prosecutors choose which charges to pursue once filed. Records show the case was placed on the inactive docket in 2016, then revived last year. Riley, the acting state’s attorney, said that was because the defendant picked up a concealed weapon charge in another county.

When contacted for comment, Riley initially sent a reporter a 1941 law review article titled, “Criminal Liability of Participants in Suicide.” Pressed for details on why his office pursued the case, he said he would be asking commissioners and his prosecutors not to pursue the charge again.

Riley noted the state’s plea offer was for the man to plead guilty to one of the three counts, and he chose the attempted suicide charge.

Judge Douglas H. Everngam, a member of the county’s drug and alcohol abuse council since 2004, accepted the plea.

Riley said he believed the case merited a reckless endangerment conviction.

“It’s reckless if you’re in a home with other people and trying to kill yourself,” Riley said. “God forbid the bullet ricocheted.”