Judges: Shaming the court is foul ball

Nov. 8—Judges in the 2nd District make decisions on bonds of defendants, but some of those court orders have been called into question by the Nez Perce County Prosecutor's Office and judges are speaking out on the issue.

In recent months, Nez Perce County Prosecutor Justin Coleman has issued several news releases regarding cases of reoffenders who have been released without bail or who made bail and are out of custody.

Judges are elected and retained by the voters — with several judicial races on today's general election ballot — and under Idaho law, judges aren't allowed to comment directly on their decision to the public or media. However, former 2nd District judge and director of the judicial council Jeff Brudie, and soon-to-be retired 2nd District Judge Jay Gaskill shared their concerns about the news releases and how the bond process works.

Brudie said that as prosecutor, Coleman can send news releases but "when he's impugning the integrity of judges saying that they're not considering the protection of society, that's not factual."

He also said that the news releases name and shame magistrate judges, which is not appropriate considering elsewhere in the state magistrate, judges have been targeted for their decisions. In Boise, for example, some magistrate judges were targeted by Ammon Bundy regarding a child custody case.

"On social media, everybody does get worked up and judges are prohibited from responding so it makes it kinda unfair," Gaskill said. It can be hard for judges' staff too.

"I don't know why the press releases are coming out. I haven't been in court for 10 months but I can't imagine things have changed that drastically with how the court or the prosecutor's office operates," Brudie said. "There's no law enforcement purpose in questioning the integrity of judges."

Gaskill also questioned the criticism regarding the bond amount judges were ordering in the news releases. One case involved a man who was arrested twice for possession of a controlled substance with fentanyl and was not given bail in both cases. Another involved a man who was given a $5,000 bond for methamphetamine possession, made bail and was arrested again and given a $10,000 bond. In that case, the prosecutor's office argued for a $30,000 bond on the first arrest and $50,000 in the second.

"I'm not sure how coming up with $5,000 makes the community any safer than coming up with $1,000," Gaskill said. "So to say the amount of the bond makes the community safer is only saying it should be used to keep (defendants) in jail even though they're presumed to be innocent."

In an email, Coleman said he respects Brudie and Gaskill, but wished to clarify the issues are with the magistrate court, not district court. The goal of the news releases is to educate the public because people can't come into the courtroom and see how the judicial system operates for themselves. Coleman said the public needs to be educated about what happens in the courtroom and how multiple offenders with felonies are being released and committing more crimes.

"This isn't about the integrity of the judges, it's about career criminals being released and the Court's reasoning for doing so. The Prosecutor's Office answers to the citizens of Nez Perce County, not the judges," Coleman wrote. "This is a matter of public safety and I disagree with the way our Magistrate Judges have been approaching it."

When defendants are released on bond and commit more crimes, Coleman said it doesn't help the defendants either because they receive more charges, which makes it harder for their cases to move forward. It also creates more cases for the judicial system, and potentially more victims. He also said Idaho law allows judges to consider reoffending as a factor when deciding bond. Coleman said public safety should be a concern with all cases regarding bond, especially with drug cases like fentanyl.

"Public Safety isn't political and I'll keep fighting on this issue long after Election Day. My office has had increasing concerns about this over the last couple years, and there are many cases to point to," Coleman said. "When a career criminal is arrested twice in two weeks for fentanyl and then released back into our community, it was time to point out these facts. We've seen many cases where I believe public safety wasn't considered enough and this felt like a breaking point."

The most recent cases the prosecutor's office sent news releases on were related to drug charges. Gaskill said there's not enough help for people with both substance abuse and mental health struggles in Idaho. What resources there are require the person to be released on bond to get treatment.

"Probably 90% of cases we get in district court are in some way drug-related, whether it's on a drug charge or it's property crime to support a drug habit," Gaskill said. "If we try to set unreasonable bail on those cases so we could keep them in jail — in the first place, you're not supposed to do that, that's not what the purpose of bail is — but even if it were done, the system would collapse."

"You can't lock up everybody," Brudie added.

Brudie and Gaskill said bonds are to serve two purposes: protection of the community and help ensure defendants show up for their court dates.

"And that is all bonds are supposed to do," Gaskill said in reference to bonds holding people in jail before a conviction, when a person is presumed to be innocent.

Brudie also said bond is not supposed to be used as a plea bargaining tool to pressure defendants to resolve their cases.

"Bail is not a guarantee that the person is not going to reoffend," regardless of the bond amount, said Roland Gammill, trial court administrator for the 2nd District. Judges make decisions based on the information they have at the time and "even when you set a bond, you still have people who reoffend."

The Eighth Amendment prevents judges from imposing "excessive bail" — instead they have to set a reasonable bail, and reasonable for one person isn't reasonable for someone else.

"That's why we have judges," Brudie said.

Bonds are first set at initial appearances, which happen within 24 hours of the arrest or 48 hours if it's over the weekend. At the hearing, a prosecutor and a defense attorney are both present, and the defense attorney presents a judge with information about whether the person is employed and has family in the area, which works in the defendant's favor for no bond or a lower bond. Then the prosecutor provides information on the person's criminal history, concerns about safety to the community and if they have any failure to appears, which means they didn't show up for a court date and would work against the defendant's favor.

"It's all pretty much factual based and the judge just has to be the one who decides where to go with it," Gaskill said, and that makes the decision harder. "Pre-conviction is a fine line to walk, again, because that dang constitutional presumption of innocence keeps poking its ugly head up."

However, the more failure to appears the person has, the more likely the bond will be set higher.

"If they have not appeared on prior occasions you're probably not going to trust their promise as much," Brudie said. "So that would mainly, I think, go into the fact that you're going to require some security for this person."

Judges also look at how long ago the failure to appears were. Gaskill said that five failures to appear from 10 years ago isn't treated the same as if they was in the last year or two. He also said that sometimes people didn't appear in court because they were being held in jail somewhere else.

Judges can also choose not to require a bond at all. If not, the person is released on their own recognizance, which means they aren't given a bond and have agreed to come to court. Some people charged with a crime aren't given bail at all, but are given a book and release, where they are taken to jail, booked into the system then released and given a court date. Those crimes are decided by law enforcement, prosecutors and the court.

There is no minimum requirement for bail, but in Nez Perce County, prosecutors often ask for similar amounts for charges, such as $1,000 for a failure to appear, the judges said. However, a judge determines bail on a case-by-case basis and the severity of the crime.

To get out of jail, 10% of the bond has to be posted by a bondsman, which can be any friend or family member of the defendant. It means that the person pays 10% and the bondsman agrees to pay the rest in full if the defendant doesn't appear in court. Most bonds are cash bonds but there are property bonds, so instead of money, personal property or real estate is offered to ensure the person arrives in court. If the person doesn't show up to court, then either the bondsman has to find the person or pay the full amount.

"It gives the bondsman a certain period of time to either produce the person or produce the money," Brudie said. "Probably more often they get found by law enforcement, not necessarily because they're looking for them, (but because) they come across them."

If a defendant doesn't show up for their court date then the judge issues a bench warrant to arrest the person charged with failure to appear in court.

The bond stays at the level that was set by the judge but it can be increased or lowered until the case is resolved.

If someone is released on bond, there are pretrial conditions that are determined by the judge, such as not committing another crime, not leaving the district, or being placed on probation. There are three levels of pretrial supervision, 1-3, with three being the highest. If those terms are violated, the judge will receive a report and can increase the bond amount.

Brewster may be contacted at kbrewster@lmtribune.com or at (208) 848-2297.