Retired Judges Weigh In
A remarkable Guest Opinion appeared in the Thursday, Sept 29th, Spokesman Review. A hallmark of our system of criminal justice is that a person accused of a crime is presumed innocent unless proven guilty. As a practical matter, it takes time for the judicial system and the judges who preside over the system to render a verdict on that question of guilt. In the meantime, the goal of the system should be to minimize risk to the community while at the same time assuring that the accused makes all the required court appearances for the system to work properly. Being incarcerated as a presumed innocent while waiting for the wheels of justice to turn is inevitably disruptive of a person’s life, the more so the fewer resources an accused person has at their disposal. Lives are put on hold, families and children are left on their own, and jobs are lost.
Whether the accused is returned to the community or detained in jail while awaiting judgement is determined by a judge. That judge relies on the quality and completeness of the information presented by law enforcement, the prosecutor’s office, and the counsel of the accused.
Sitting judges in our system rarely (if ever) speak out publicly. Their focus is on the case before them, in which context they may offer criticism of the quality or completeness of the case presented, but a sitting judge does not weigh in or push back on public statements and accusations tendered by the prosecutor and law enforcement about the overall function of the legal system. A sitting judge who takes a side in such a public controversy risks losing the public’s trust in the fairness of their judgement.
When three retired local judges write a guest opinion calling out the Prosecutor and the Sheriff for making false public statements it deserves to make news, in part because judges still sitting on the bench are constrained.
Remember Judges Murphy, Peterson, and Rodgers’ critical voice when you cast your vote in the Spokane County Prosecutor’s race in November.
Keep to the high ground,
Jerry
Sheriff, prosecutor claims about bail unsubstantiated
By Judges James Murphy, Vance Peterson and John Rodgers
In recent months, Sheriff Ozzie Knezovich and Prosecutor Larry Haskell have criticized our courts regarding bail decisions. They have failed to produce evidence. They have relied upon unsupported accusations and have stated, “It is maybe time to clear the bench.” Under the Washington Constitution, all accused persons are guaranteed a right to bail.
The bail may not be excessive.
Bail set at a figure higher than an amount reasonably calculated to assure the defendant’s compliance is illegal.
The day-to-day mechanics of bail decisions ensure that fair, legal decisions are made. The decisions are made in public, recorded hearings. A neutral judge makes an individualized decision based on the facts presented at the hearing. The prosecutor and the defendant each have a right to present evidence.
The judge must release the defendant if no charge is filed or if the evidence presented is not sufficient. The rule is carefully drawn to honor the presumption of innocence and to ensure public safety.
In joining Knezovich’s criticism, Haskell has publicly stated that the Constitution does not provide for the presumption of innocence. He disingenuously omits that our laws certainly do. RCW 9A.04.100 states that “Every person charged with the commission of a crime is presumed innocent unless proven guilty.”
The prosecutor also omits court rules which require judges to release charged persons if they promise to return for court.
There are two exceptions.
First, if the judge determines that release without conditions will not reasonably assure the accused person’s future court appearance, the court is required to impose the least restrictive condition that will assure appearance. Second, if the prosecutor shows a substantial danger that the accused will commit a violent crime, intimidate witnesses or obstruct justice, the judge may impose conditions to prevent those, and a violation of those conditions is cause for immediate arrest.
A bail bond may be required only if the judge determines that other conditions are not sufficient.
But Haskell requests money bail in every case, without support of individualized evidence, and relies instead on a rote, check-box form.
This is laughably inadequate and risks the credibility of the prosecutor’s office. It is not a reasoned legal argument but only weak political cover.
While Knezovich and Haskell complain about bail decisions, they have never sought review in the Court of Appeals. Never. Approximately 75% of the persons in jail are being held while waiting for trial.
The argument that the court is releasing too many persons is false.
Knezovich makes scatter- gunned accusations on pretrial release decisions. We have been able to find only four in which he actually identified a case. In two, the defendants were fully compliant with court orders. In one, the prosecutor agreed to release. In the fourth, Knezovich complained that a judge released a known thief. But that information was not given to the judge.
Knezovich told the reporter more than he told the judge.
Nevertheless, Knezovich has continued with theatrical outrage rather than facts.
A file-by-file examination of the first 450 criminal filings from 2021 has shown that six, or 1.3% of the defendants, have been arrested for violent crimes during pretrial release, resulting in one minor injury.
In Federal Court, 183 persons had detention hearings in 2021. Only 1.4% were re-arrested with new charges.
Our court system is a wonder. Both sides present evidence. Proceedings are open to the public. Records are kept.
Decisions are made according to law. Appeals are available.
Bail hearings are difficult.
Honorable judges are whipsawed by the commands of law, the liberty of citizens presumed innocent, and the real concerns of protection of the community.
But Knezovich and Haskell show contempt for the courts.
They criticize without facts.
They fail to get evidence to courts. They fail to appeal but instead make public announcements, free from fact checking and accountability.
In their world, an arrested person should be kept in jail on their say so. Woe to a judge who applies the law. In their world, there is no presumption of innocence, only a presumption of guilt. Good luck to the citizen who is caught in their clutches.
Judges James Murphy and Vance Peterson are retired from the Spokane County Superior Court. Magistrate Judge John Rodgers is retired from U.S. District Court, Eastern District of Washington.
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