Defense attorneys: Prosecutors angle to boost bonds, keeping poor people in jail

Defense attorneys: Prosecutors angle to boost bonds, keeping poor people in jail

October 1st, 2016 by Zack Peterson in Local Regional News

Judge David Bales confers with an attorney in this 2014 file photo.

Photo by Angela Lewis Foster /Times Free Press.

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She was a bingo player, a naval officer, a mother of three. But now, she stood accused of attempted first-degree murder.

Before April 16, Demonica Embrey never had a criminal record in Hamilton County. The 55-year-old woman had a pension, did insurance work and went to church every Sunday.

Embrey experienced the occasional depression, she said, "like a lot of people do," but otherwise had no mental health problems.

One afternoon of rage, though, changed all of that.

After learning her husband had spent a substantial amount of their money on an affair, Embrey invited him to their Hixson home, where an argument led to her firing a bullet that traveled through a wall and into his shoulder, according to court testimony and authorities.

Arrested and given a $100,000 bond, Embrey was entitled to a preliminary hearing in Hamilton County General Sessions Court, where one of five judges would decide if the evidence in her case merited a trip to the grand jury.

But when the time came, Embrey waived her right to a hearing. She chose to remain in jail on an attempted first-degree murder charge. She proceeded to the grand jury, and possibly Criminal Court, without much information in her case.

Why?

Because otherwise she would have had a hearing before David Bales, the Sessions Court judge most likely to raise her bond even higher.

And that was one thing Embrey couldn't afford.

***

A dozen defense attorneys say they believe prosecutors are manipulating specific judges into increasing bonds to gain an upper hand in criminal cases. And a review of nearly 650 preliminary hearings in Hamilton County's five General Sessions courts shows one judge increases bonds more than all four of his colleagues combined.

A bond is the fixed amount of money a judge sets to ensure someone's appearance in court. Except in cases where a defendant faces the death penalty, a bond should be reasonable to pay. And most of the time, judges do not increase the bond, data shows.

But defense attorneys say bond practices in Hamilton County ensure more people are incarcerated on pending charges, eroding their constitutional rights with increases they can't afford.

Though it's difficult to draw a straight line between overcrowded jails and bond increases after preliminary hearings, data show that 55 percent of the 1,600 inmates in Hamilton County Jail and Silverdale Detention Center are incarcerated for charges that haven't been resolved yet. Break those numbers down further, and one in five inmates is sitting there for pending misdemeanors, which generally carry lower bonds than felonies.

"If you start setting bonds people can't make, forget about building one jail," said Hank Hill, an area defense attorney of 38 years. "It's many jails. And see what the taxpayer thinks about that. Everybody's in favor of higher bonds until it's your nephew, your niece, your aunt."

Sessions Court judges counter that bond increases are justified when new facts paint the defendant in a more dangerous light.

Those facts often arise during preliminary hearings, a legal mechanism that defense lawyers relish because of the unique ability to question witnesses under oath and get official statements before trial.

If a case then moves to Criminal Court, defense lawyers use those statements to win more favor for their clients by tripping up witnesses who tweak or recant their original narratives.

"If we get upstairs and people start changing their stories, that aids my defense," said attorney Jason Fisher. "I want to have a preliminary hearing."

Without it, defense lawyers say they have to lean on prosecutors for information, most of whom don't want to unveil their strongest facts that early in a case.

Defense lawyers say they can tell which judges are prosecution-friendly with a simple question.

"Frequently, when we're at the end of a preliminary hearing, I'll ask the prosecutor, 'Is there a problem with the bond set to go to the grand jury?'" said General Sessions Court Judge Gary Starnes.

This is a sign to prosecutors that judges are open to raising the bonds — specific judges, defense attorneys say.

"It doesn't happen in front of [Judge Clarence] Shattuck," said defense attorney Brandy Spurgin-Floyd. "And the [district attorneys] know it."

Though defense attorneys like preliminary hearings, they say prosecutors use them as leverage in a case.

"They will tell you, 'I will bind your case over on the same bond," said defense attorney Jason Fisher. "'But, if you make me have a preliminary hearing, I'm going to ask for a higher bond.'"

The end game, defense attorneys say, is defendants either disadvantage themselves by skipping preliminary hearings, or risk going back to jail just for having one.

And once they're in custody, clients are more likely to plead to reduced charges just to get out, defense attorneys say.

"After a guy's been in jail for a year, it's much easier to convince them to take a plea," said Hermann Walz, a practicing attorney, former prosecutor, and an adjunct at the John Jay College of Criminal Justice.

"That's much different than approaching the guy who's never been in jail and saying, 'Hey, you want two years?'"

***

District Attorney General Neal Pinkston declined to comment for this article.

But a member of his office said prosecutors are probably behaving more strategically than maliciously.

As Steve Crump, the 10th District attorney general who is not involved in Hamilton County, pointed out: "Our job is to get at the heart of what's been charged, then figure out who needs to stay in jail, and who needs to go forward to Criminal Court."

The Hamilton County district attorney said local prosecutors have been practicing long enough to know how certain judges will exercise their discretion.

"I haven't seen where a district attorney says, 'Hey, judge, I want you to increase this person's bond without giving notice to the defense,'" the prosecutor said. "But I have heard complaints where some judges will more often than not increase somebody's bond."

A Times Free Press analysis shows Bales, who has been on the bench nearly 11 years, increased more bonds after preliminary hearings than all four of his colleagues combined.

From Jan. 1, 2015, to July 1, 2016, Bales ordered 37 bond increases in 114 hearings — which is nearly one-third of the time.

It's unclear whether prosecutors asked Bales to increase the bonds. Presented with the data, Bales said he often asks for more information about defendants on his own.

"What I'll do is say, 'Are there any factors I need to take into consideration?' Or, 'What's the defendant's prior record criminal convictions?'" he said.

During a recent interview, Bales pointed out that he didn't raise the bond in 77 cases.

"In those cases, what you'll find is, defendants had little criminal record or no threats of violence," Bales said. "If there's no threat to community, we just go right on."

But records show he didn't increase bonds for 40 defendants who either had lengthy criminal records or violent charges like aggravated assault, rape and robbery. About 50 percent of the time, Bales let them slide without an increase.

In his defense, Bales said witnesses in court often are more compelling than facts in a criminal affidavit.

"The witnesses are telling you what was going on during the alleged crime," he said. "When you have somebody saying, 'Give me your wallet,' versus someone coming up and saying, 'I'm going to blow your head off,' it's very different than seeing a statistic on the paper.'"

***

On most Friday nights, Randy Russell isn't busy until 2 a.m., when DUI cases start sliding across his desk in a brick cubicle in Hamilton County Jail.

As the county's chief magistrate, Russell sets the first bond for many defendants. So if you imagine bond as a ladder, his office is the first rung to climb.

"In every criminal case that is committed, [defendants] see us first," he said. "We determine, 'Is there probable cause for this person to be charged?'"

And if there is, Russell arranges a hearing to quiz defendants about their criminal record, job history and community ties. After reviewing the facts and weighing a combination of factors, he then sets an individual bond aimed at ensuring their appearance in court.

Bonds increase based on the seriousness of the offense.

"Let's say we have a defendant charged with aggravated assault and their criminal history is only traffic tickets," Russell said.

The minimal record helps — unless a criminal affidavit in the case says the defendant locked his partner in the apartment, put a gun to her head, and held her hostage for an hour.

"That would be a lot more serious," Russell said.

Russell depends on a complete criminal affidavit to judge the severity of the charge.

The next step is a preliminary hearing in General Sessions Court, where a judge can alter the bond if new facts arise.

"The magistrate won't hear all the facts," explained General Sessions Judge Lila Statom. "They look at the defendant's record, but it's not as thorough as what we do. We have the defense attorney, the witnesses and the prosecutor, who usually has all the information in front of them. And so we have a duty, after a preliminary hearing, on what should be an appropriate bond."

Data for the other Sessions judges showed Statom raised the bond 13 times in 107 hearings. Meanwhile, Starnes raised the bond 12 times in 157 hearings.

Both judges tended to impose special bond conditions such as ankle monitors, no contact orders with victims, or drug and alcohol restrictions instead of increases.

The two other judges, Shattuck and Christie Sell, were more hands off. Shattuck raised the bond four times in 147 hearings; Sell raised the bond three times in 121 hearings. That's about a 2 percent increase rate for both of them.

"I cannot speak for what goes through their minds," Bales said of the data that shows his colleagues raising the bonds at a lower rate.

"I just know that I take very seriously protecting the rights of defendants but also protecting and ensuring the safety of the community," he said.

Times Free Press archives show Bales took a similar stance nearly 10 years ago, when he and another Sessions Court judge, the late Bob Moon, opposed an alternative bond program that aimed to alleviate overcrowding in the jail by releasing non-violent offenders who couldn't afford bail.

"My main concern is the safety of citizens of Hamilton County," Bales said in 2006, before saying that the first inmate released on the county's program was arrested days after being let out of jail.

Though many defense attorneys said they consider steering clients away from Sessions Court because of prosecution-friendly judges, Statom disputed the claim.

"That doesn't necessarily involve the judge," she said. "It could be that the prosecutor in a particular courtroom isn't making them the offer they want, and they're hopeful to get a reduced offer by a DA upstairs."

The Hamilton County prosecutor said he hoped other prosecutors weren't using a defendant's bond as leverage in Sessions Court. Still, he described a scenario in which a prosecutor used the apprehension of appearing before specific judges to persuade a defense attorney into moving the case along.

It's not a binary situation where "if you do this, I'm going to do X," the prosecutor said.

The conversation is more suggestive: "Well, you know what this judge does "

***

Rather than go through Sessions Court, Embrey's defense used a different strategy.

After Bales sent her case to the grand jury, her attorney filed a motion to reduce bond before Criminal Court Judge Barry Steelman.

Then, one morning in April, prosecutor Kristen Spires and defense attorney Brandy Spurgin-Floyd gathered in his courtroom to swap arguments.

Was Embrey, the 55-year-old woman with no prior criminal history, a danger to the community? And if her bond was reduced, and she was released from jail, how would she return?

Spurgin-Floyd called several friends and community members. They promised to house her, drive her to court and provide a support network.

She also argued Embrey could not afford a $100,000 bond because she had filed for divorce, then pointed out a few other factors.

First, Embrey's partner had approached Spurgin-Floyd about representation. Second, the officer was not clear in his affidavit that the bullet traveled through a wall first before striking Embrey's husband. And third, the affidavit seemed to suggest that Embrey lured him over. Her husband had agreed to meet her, Spurgin-Floyd argued at the time.

Eventually, Steelman called them to the bench for a private conference about the state of the case.

Was Embrey's charge still pending in the grand jury? he asked.

"Yes, sir," Spires said. "And it was bound over from Sessions Court without hearing."

Steelman paused.

"You waived it without a hearing?" he asked Spurgin-Floyd.

Spurgin-Floyd explained: "That was purely calculated because of the risk of a hearing the particular forum may not have been —"

Before she could finish, Steelman cut her off.

"I understand," he said, and ordered to slice the $100,000 bond in half.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow on Twitter @zackpeterson918.


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