Commentary: In 2016 we amended the state constitution to change long-standing bail rules. Under those rules, a poor defendant who wasn't a danger to the community or a serious flight risk could linger in jail because s/he couldn't post bond. A wealthier defendant, even a dangerous one, could post bond and be out on the street again. The new rules aimed to change that.
Bailbondsfolk complained that the change threatened their livelihood – and was unconstitutional. (A court challenge failed.)
Prosecutors complained that to hold a dangerous felon required an immediate evidentiary hearing, which could be hard to manage so quickly and represented significant extra work without added resources. They also said that judges, by strictly construing the “clear and convincing evidence” requirement, were still releasing obviously dangerous people. But civil liberties proponents reasonably claimed that if judges eased up too much on the rules of evidence, they'd be holding folks in jail on hearsay, rumors, or a bad reputation, rather than facts.
Everyone was asking the state supreme court for clarification.
This week, in two opinions written by Justice Daniels, the court unanimously held in three cases that a dangerousness hearing “is not bound by formal rules of evidence but . . . focuses on judicial assessment of all reliable information . . . in any format worthy of reasoned consideration. The probative value of the information, rather than the technical form, is the proper focus.”
Any reasonable person would decide (for reasons discussed on my blog, with links to the opinions) that each defendant was certainly dangerous and two were obvious flight risks.
Evidence such as videos, text messages, witness statements, or physical evidence found at the scene supported detention; but evidentiary rules at trial require live witnesses to authenticate such evidence, not just a cop reporting what witnesses said, as would occur in a grand jury setting. The three defendants neither offered evidence nor articulated denials, but merely challenged the strength of the state's evidence without witnesses.
My first reaction was that since the defendants were obviously dangerous, the judge who released two was an idiot.
But I've witnessed and read about police and prosecutorial abuses. I've seen justice take a back seat to southern cops' distaste for civil rights workers and “uppity” blacks or get ignored by northern cops who could see only our antiwar politics. I haven't personally suffered extreme abuses, but I've been close enough to know that procedural protections for defendants are in place for damned good reasons.
Justice Daniels wrote that defendants and prosecutor took “absolutist positions” that live witnesses were always required to authenticate evidence or were never required. The Attorney-General, and the court, held that such witnesses weren't always required but that courts may require them where there's doubt regarding the evidence.
That sounds reasonable, given limited funds. I'm not certain it's right. These cases were clearcut, but these questions are troublesome. Will certain judges, for whom each word uttered by a police officer is gospel, take shortcuts in less clearcut cases – violating the rights of people who aren't guilty? But if we required live witnesses a biased judge might ignore devastating cross-examination of those witnesses. On the other hand, if a record is made an appellate court can review that.
I come out with Justice Daniels and with prosecutors I've talked with; but somewhere inside, a younger me is shouting an obscenity at the grizzled old guy writing this.