Judge was recorded ex­plain­ing high bail

Le­gal clinic chal­lenges set­ting a fig­ure de­fen­dant will be un­able to pay

Baltimore Sun - - FRONT PAGE - By Justin Fen­ton

The Uni­ver­sity of Bal­ti­more’s le­gal clinic is chal­leng­ing a rul­ing by a Bal­ti­more cir­cuit judge who was recorded say­ing that she set a high bail know­ing it likely would keep the de­fen­dant be­hind bars.

Mary­land law re­quires that bail be used only to as­sure a de­fen­dant shows up for trial, though many de­fense lawyers be­lieve judges rou­tinely skirt that stan­dard. The com­ments by Judge Yolanda Tan­ner and the chal­lenge by the UB Pre­trial Jus­tice Clinic come amid an emerg­ing de­bate about whether the state’s cash bail sys­tem is un­fair and should be scrapped.

State At­tor­ney Gen­eral Brian Frosh re­leased an opin­ion this month say­ing Mary­land’s sys­tem of hold­ing de­fen­dants in jail when they can’t af­ford to pay cash bail would likely be found un­con­sti­tu­tional. Judges and court com­mis­sion­ers must take into ac­count the ac­cused’s abil­ity to pay be­fore set­ting bail, he said.

The can­did dis­cus­sion between Tan­ner and one of her clerks was cap­tured Sept. 2 by court­house record­ing equip­ment af­ter Tan­ner set a $750,000 bail for Ni­cole Easley, who was charged with at­tempted mur­der for al­legedly stab­bing her boyfriend.

“She can’t make that bail,” Tan­ner was

recorded say­ing, ac­cord­ing to a tran­script. “She’s not em­ployed, she’s got six kids, she doesn’t seem to have the as­sets. It’s not go­ing to hap­pen.”

Af­ter hear­ing had con­cluded, Tan­ner con­tin­ued to dis­cuss the case with her clerk, say­ing bail should be based on the of­fense re­gard­less of some­one’s fi­nan­cial sta­tus.

“It does mean that poor peo­ple wind up in jail, it does mean that,” Tan­ner said. “Which is why ev­ery­body is talk­ing about re­form­ing the cash bail sys­tem.” Easley re­mains in jail, un­able to pay. Zina Makar, co-di­rec­tor of the Uni­ver­sity of Bal­ti­more clinic, and Adam Sha­reef, a law stu­dent, wrote in their chal­lenge that Tan­ner “set bail know­ing that the amount was out of reach … and she would re­main in­car­cer­ated.” Tan­ner also re­fused to take into ac­count any other fac­tors, such as Easley’s ties to the com­mu­nity and prior record, they said.

A clerk said Tan­ner was un­avail­able for com­ment.

Judges can or­der a de­fen­dant held with­out bail if they be­lieve he or she poses a dan­ger to the com­mu­nity or is a flight risk. A bail amount is in­tended to en­sure a de­fen­dant’s ap­pear­ance by im­pos­ing a fi­nan­cial in­cen­tive to make a court date.

At daily bail re­view hear­ings across the state, at­tor­neys reg­u­larly ar­gue about de­fen­dants’ work his­to­ries, ties to the com­mu­nity and prior records in hopes of gain­ing their re­lease. But in prac­tice, the crime of­ten dic­tates whether an ar­restee is granted bail, at­tor­neys and other le­gal ob­servers say.

“In my ex­pe­ri­ence and the ex­pe­ri­ence of many if not most of my col­leagues in the bar, the ju­di­ciary is not fol­low­ing the statute or the rule” on set­ting bail, said Del. Erek Bar­ron, a Prince Ge­orge’s County Demo­crat who is a for­mer pros­e­cu­tor in Prince Ge­orge’s and Bal­ti­more. “Of­ten times, even when a bail is set, they’re set­ting a bail that they think the in­di­vid­ual can’t make.”

Bar­ron said in some cases, the de­ci­sion can back­fire: Some­times a de­fen­dant a judge in­tends to be de­tained on a high bail can come up with the money and is re­leased. Other times, Bar­ron said, peo­ple who should be re­leased are given a bail they can’t af­ford and re­main held.

In Bal­ti­more County this month, a Dis­trict Court judge set a $250,000 bail for a 56-year-old man charged with killing his wife in 2006. The sus­pect, Michael Am­ick, who had been liv­ing in Hawaii, was able to post the bail and is free pend­ing trial.

Easley is ac­cused of stab­bing her boyfriend in the stom­ach with a butcher knife in May. Po­lice said in charg­ing doc­u­ments that she had looked through her boyfriend’s phone and be­come up­set af­ter see­ing con­tact with other women. Her at­tor­neys say that is only one side of the story.

She was ini­tially or­dered held with­out bond by a Dis­trict Court com­mis­sioner, in part be­cause the court was con­cerned that she and the al­leged vic­tim lived in the same home, her at­tor­neys say.

Her public de­fender, Marci John­son, sought a new bail hear­ing to in­form the court that Easley and the vic­tim did not in fact live to­gether, al­le­vi­at­ing that con­cern. John­son ar­gued for Easley’s re­lease as the care­taker of six chil­dren, and noted Easley had no prior con­vic­tions and had not failed to ap­pear in court be­fore.

Tan­ner, a judge since 2010 who was a ju­ve­nile master for six years be­fore that, told the at­tor­ney that those weren’t fac­tors for her to con­sider. “I set a bail based upon the na­ture of the charges. I don’t set it upon the na­ture of the de­fen­dant,” Tan­ner said, ac­cord­ing to a tran­script.

Makar and Sha­reef ar­gue in court pa­pers that not con­duct­ing an “in­di­vid­u­al­ized as­sess­ment” amounts to a rigid “bail sched­ule” which is not al­lowed un­der Mary­land le­gal rules.

“Re­liance on a bail sched­ule re­sults in faulty bail de­ter­mi­na­tions that lead to the er­ro­neous de­pri­va­tion of lib­erty for in­di­vid­u­als who have not been con­victed of a crime,” they said. “While the na­ture of the of­fense is one of many fac­tors that a ju­di­cial of­fi­cer can con­sider,” they wrote, the court “ig­nored other im­por­tant fac­tors.”

Frosh in his opin­ion said cur­rent Mary­land rules spec­ify that judges and court com­mis­sion­ers use the “least oner­ous” means to en­sure that de­fen­dants show up for trial and avoid com­mit­ting new offenses be­fore they’re due in court.

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