Mark Dial was released on bail after the Philly DA’s office dropped his first-degree murder charge

The District Attorney’s Office has withdrawn a charge of first-degree murder against former police officer Mark Dial, a decision that prosecutors were effectively forced to make by a judge after failing to tell Dial’s attorneys about a key piece of evidence they intend to use against him at trial.

The decision, made Thursday, allowed Dial to be released from jail on bail to await a new trial date, now with a lead charge of third-degree murder. His case — which had been scheduled to begin in September — will now go before a jury in May 2025.

Dial’s bail was set at $200,000, and he paid the required 10% to secure his release shortly after noon Thursday, court records show.

The development served as the latest twist in the high-profile case, one that has taken an unusually circuitous path through the courts. Dial is accused of fatally shooting Eddie Irizarry during a traffic stop in Kensington last year, and his prosecution has now been tossed out, reinstated, and downgraded over the last 11 months.

The latest issue revolved around the use of an expert witness.

Prosecutors months ago had hired an expert to prepare a report on whether Dial violated Pennsylvania’s use-of-force law for police when he shot Irizarry, a question that goes to the heart of the case and will determine whether Dial should be convicted. But prosecutors told Dial’s attorneys about the expert’s report only this week — something Dial’s lawyers said was unreasonable, and didn’t give them enough time to prepare a rebuttal.

Common Pleas Court Judge Glenn B. Bronson agreed, and said he did not want to delay the case and keep Dial incarcerated for months over an issue that prosecutors had effectively created.

“Why didn’t you tell them you were hiring an expert?” he said in court this week, later adding: “You sat on this for 10, 11 months.”

Still, Bronson identified something of a compromise. He said he would permit the case to be postponed if prosecutors downgraded the lead charge to third-degree murder.

In that instance, the judge said, prosecutors could go on to present their expert to a jury, Dial’s attorneys could have enough time to prepare a response, and Dial could become eligible to post bail while awaiting his new trial date — something he was barred from doing while facing a first-degree murder charge.

Assistant District Attorneys Clarke Beljean and Karima Yelverton said that, after consulting with District Attorney Larry Krasner, the office opted to withdraw the highest charge. They did not explain the decision Thursday in court, and declined to comment after the hearing.

The prosecutors asked Bronson to hold Dial on house arrest ahead of trial. The judge denied the request, agreeing with Dial’s attorneys that he is not a flight risk.

Dial’s attorneys — Brian McMonagle, Fortunato Perri Jr., and Charles Gibbs — declined to comment after the hearing. But in the moments after the decision, they gathered outside the courtroom and called Dial’s mother to let her know her son would be home today.

The decision outraged some of Irizarry’s relatives. His aunt, Zoraida Garcia, said that she didn’t know about it until she was contacted by a reporter Thursday, and that she was shocked and furious.

“An officer can kill somebody here and get away with it,” Garcia said Thursday. “That’s how I’m feeling now.”

She said she and her family had been told they didn’t need to attend recent hearings in the case, but she now regrets missing out on them, and thinks she and her family and their supporters could have shown up in force.

“If it was somebody else, they would have roofed him and thrown away the key. Forever,” she said.“... You think any of us get bail if we kill somebody?”

On the day of the shooting, police said Irizarry had lunged at Dial while holding a knife, leading the officer to shoot him. But video later showed that Irizarry, 27, had been sitting in his car, with a knife in his hand and the windows rolled up, when Dial opened fire just seconds after arriving on the scene.

Dial’s attorneys have said the officer thought he heard his partner yell that Irizarry had a gun, and that he was fearing for his life when he opened fire.

Dial was fired several days after the shooting, and charged with murder a few weeks after that.

In the months since, his prosecution has bounced in and out of the courts: A judge dismissed all charges after a preliminary hearing last September, but another judge reinstated each count months later, paving the way for the case to head toward trial.

The latest decision, to withdraw the first-degree murder charge, eliminates the possibility of a life sentence if Dial is found guilty — the mandatory penalty for anyone convicted of first-degree murder in Pennsylvania. And it may change how prosecutors present their case: First-degree murder is considered a premeditated, intentional killing, while third-degree murder is an unintentional homicide that happens when a defendant exhibits “malice,” which in legal terms indicates a significant disregard for human life.