DINWIDDIE COUNTY, Va. (WRIC) — Seven Henrico County Sheriff’s deputies and three Central State Hospital workers charged with second-degree murder in connection with the in-custody death of Irvo Otieno have reportedly been released from jail, according to Dinwiddie County Commonwealth’s Attorney Ann Baskervill.

The 10 defendants were granted bond by a Dinwiddie County Circuit Court judge this week, with additional court dates set for April and May.

Charged on criminal information

8News Legal Analyst Russ Stone said Thursday that the handling of the cases thus far has been unusual, especially due to the way in which defendants were arrested and charged on criminal information.

“That is a perfectly legal mechanism for charging somebody. However, it is very rarely used,” he said. “The benefit to a prosecutor of charging somebody by information is that you can do it faster than by indictment, because an indictment has to go through a grand jury.”

This week, a grand jury of Dinwiddie County residents did move to indict all 10 defendants on the second-degree murder charges filed by the Commonwealth’s Attorney’s Office, formally confirming the legal accusations.

“The prosecutor has essentially avoided what is called a probable cause hearing,” Stone said. “She will never have to present probable cause evidence to a judge to determine whether all 10 of these individuals now will have to go to Circuit Court for a trial, essentially. They’re already in Circuit Court because she chose to do an information.”

Proving malice

Stone, as well as defense attorneys for the suspects charged in these cases, have noted that surveillance video — although rare to be publicly accessible so early in legal proceedings — may not be sufficient evidence to convict.

“They’re charged with second-degree murder, which, in Virginia, means the killing of another human being with malice, and malice is defined as being an intentional doing of a wrongful act without legal excuse or justification, with anger, hatred or revenge,” Stone said Thursday. “That’s what a jury would have to find in looking at that video, that these people, basically, intentionally were killing somebody with malice, and it will be a jury’s determination as to whether that happened. But, I can honestly say, I look at that video, I’m not sure I see that.”

If the 10 cases go to trial, Stone said that they could be tried together or separately. If tried separately, he noted that there could be efforts to negotiate down to lesser charges, or even have defendants with less alleged involvement testify against their co-defendants.

“Each and every defendant, their case has to be judged separately under the law, and that’s true even if they have a joint trial,” Stone said. “The simple fact that one person is found not guilty does not have any legal impact on whether or not another person is found guilty. Each person is going to be judge on the evidence against them.”

Virginia’s Model Jury Instructions for a jury considering a second-degree murder cases state that the Commonwealth must prove “beyond a reasonable doubt” that “the killing was done with malice,” and that the individual charged was the individual who performed that action.

What’s next?

A judge set pre-trial hearing dates for the 10 defendants in April and May. At that time, the judge said there would be a general check-in on any additional information that may have been introduced, as well as a discussion about whether the case should proceed with a trial by judge or jury.

Video evidence from Central State Hospital and Henrico Jail West were released this week. Stone added that surveillance video from the hospital, provided thus far in the courtroom only in the form of still images, would need to be formally introduced as evidence and given to involved parties for review.

“I’m sure that some of the attorneys have filed discovery motions. Some may not have even done it yet, but they will within the next couple of days,” he said. “We don’t know all of the evidence yet. But I would think, at some point, members of both the Commonwealth and from the defense point-of-view are going to be considering talking to experts, people that are experts in how inmates are handled in jails, what you do under certain circumstances to have them come to court and, perhaps, educate the jury.”

Otieno’s family has also retained noted civil rights attorney Ben Crump, who worked with the family of George Floyd after his death.

“They’re looking into whether or not they can sue the County of Henrico, Central State Hospital, Commonwealth of Virginia, whoever they can think of to sue, and then possibly get some kind of recovery for the family of the victim,” Stone said. “That would be a completely separate trial that would occur most likely after the criminal trial is over with, because they would want to know what happens in the criminal trial first. If the criminal trial were to result in convictions of everybody, then they would probably feel that their civil cases even better.”