Anyway, to recap "from our last episode": John was denied bond by a magistrate following his arraignment on July 2nd. Last Thursday, his attorney filed a motion for a District Court judge to review the magistrate's ruling. On Friday, the District Court judge looked at the case, acknowledged a few obvious facts, and promptly upheld the magistrate's original ruling denying him bond. John's attorney immediately filed an appeal to the Circuit Court, and a hearing was scheduled for Wednesday morning.
And now for the continuing saga: The hearing was Wednesday morning. Nobody thought he'd be given bond. But, lo and behold, the Circuit Court judge granted his request. That was very surprising (and dismaying) to a lot of us. People are now going into hiding.
Evidently this Circuit Court judge was a former defense attorney, which may or may not have been a factor in his decision. He might simply have been bored, out-to-lunch, drunk, smoking pot, or just plain stupid. Who knows? Dad says the hearing lasted about ten minutes, and that most of that time was monopolized by John's attorney. He went on and on, claiming that John was a wonderful guy with ties to the community, that the shooting was done in self-defense (which isn't true and should not have been considered relevant in a bond hearing anyway), and that the prosecution didn't have any evidence to support the notion that John is an obsessed, stalking sociopath, and thus a danger to himself or others. The prosecution was given very little time to say "actually, yes, we really do have evidence, starting with..." etc. etc. etc.
Most people charged with crimes in America are granted bond -- in other words, they're given the option of putting up collateral in the form of bail with an agreement to stay in town and otherwise behave themselves -- in exchange for being able to spend their pre-trial days/weeks/months/years out of jail. The idea is that you're innocent until proven guilty, so the government shouldn't ruin your life prior to conviction. Most people, however, aren't being charged with first degree murder.
In the Commonwealth of Virginia, first degree murder is a class 2 felony, punishable by 20 years to life. Under Virginia statute, a judge making a bond ruling in such a case is required to operate with a bias against granting the defendant what's called "admission to bail" (i.e., setting a bail amount).1 That's subject to rebuttal by the defense, of course, but they're supposed to start with the presumption that the person is a flight risk and/or a dangerous person, which are the legal criteria for holding someone without bond. The judge is not to attempt to assess the merits of the criminal case itself, but simply determine if the person is too dangerous or too slippery to let out of jail prior to trial.
Personally, I think the judge made a grave professional error, that he ignored the statute, ignored the facts presented to him by the prosecution, and is placing innocent people in danger as a result. I think he ought to be reprimanded. I'm biased, of course, but evidently, so was he. The detective and the prosecuting attorney (who have at least half a century of professional experience between them), plus another attorney I spoke to, were all agog.
HOWEVER...
...NOTWITHSTANDING THE ABOVE...
...John is, as of this moment, still in jail. What's that you say? He was granted bond on Wednesday morning, has loads of cash, and is still sitting in the tank?!! Why, yes! He is! (The cash, by the way, also makes him a flight risk, pardon my peeve...) Anyway, he's still in jail for now -- that could change. But in the mean time, we're grateful. We're not sure of the exact sequence of events following Wednesday's hearing, but we do know the following:
- Katie Swart (our prosecutor, whom we love) quickly filed an emergency appeal which hasn't been ruled upon yet.
- John has been having trouble finding a bail bond agent who's willing to sign him up. The reason for that is not public information. But given the fact that they'll lose $400,000 if he doesn't behave himself during his release, I'm thinking that might be a factor. (Observe the subtle hint of sarcasm.)
The moral of this story is that sometimes bail bond agents are smarter than Circuit Court judges. Go figure. I'm just grateful he's still in jail, and I hope he doesn't get out.
Sooner or later, we'll see how this soap opera plays out. That is to say, "Join us next time for more thrilling drama (as we rip our hair out) in "As the Bail Turns!" Yadda, yadda, yadda...
~ Lisa
1 The statute regarding admission to bail reads as follows: "The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with...an offense for which the maximum sentence is life imprisonment..." (Code of Virginia, §19.2-120.B, emphasis added).
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And now for the exciting conclusion to "As the Bail Turns!"
[Cue music.]
Judge Stanley P. Klein, the genius described above, decided he would hear Katie Swart's emergency appeal in a second hearing, which took place last Friday. That is to his credit. He could have dismissed her request without another word.
Prior to the hearing, I sent a brief letter to Judge Klein (with copy to Katie and John's attorney, in an effort to keep with ex parte rules), requesting that he please keep the defendant locked up. Whether or not that was appropriate for me to do is questionable. I have been told that people send letters to judges all the time, and judges (at least those who are worth their salt) read and consider their contents. But since sending the letter, I have also read parts of the Canons of Judicial Conduct for the Commonwealth of Virginia, which leave me thinking it probably wasn't appropriate. But what did I know? I thought I was satisfying the rules by copying the two attorneys. So, for better or for worse, I sent it. Anyway, that's another discussion for another day.
The letter, as it happens, was comprised of a bulletized list of reasons why John should stay in jail, starting with the statute (which I quoted directly) and continuing with facts regarding John's situation that make him both a dangerous person and a flight risk. It was succinct and to the point. It focused on practical information to move forward with, and said nothing about my opinions of the judge himself or his performance in the prior hearing. (I won't post the letter here because it contains facts regarding the case that we don't want made public prior to the trial.)
At any rate, the follow-up hearing on Friday was brutal. I think it is safe to say that Judge Klein threw a right little tantrum. Dad described him as "a bully on the bench." He was rude and demeaning (in opposition to Canon 3.B.4, but I won't press that point), and blamed everybody and their Aunt Mildred for not presenting the facts clearly for him the last time. (Was he deaf the last time?) He lambasted Katie for letting me send him a letter, as if she had put me up to it. Katie isn't ruler of the free world; she isn't even my personal counsel. It was entirely unreasonable of him to think that she had control over my activities.
Eventually, he dragged out an enormous tome, which turned out to be the Code of Virginia, and read aloud the very same statute I had pointed out in the letter. (Consulting the statute -- now there's a thought!) And finally, after pontificating in a manner to suggest that he alone among mortals cares about truth, justice, and the American way...
...[DRUM ROLL]...
...he denied bond! Hooray! He had seen the light! It just goes to show that even judges who behave pompously can occasionally do the right thing.
What still nags at me, though, is that he apparently reached the conclusion that John should be held without bond because of testimony that he (John) might be a danger to himself. He (Judge Klein) went on for some length about how the system needs to protect John's safety (which it does). My conscience says that is a perfectly valid reason, as does at least one phrase in the bail statute -- but not the one he quoted. The paragraph he quoted from the statute (i.e., the one prescribing a presumption of inadmissibility to bail because of the severity of the charge) does not mention the safety of the defendant, only the safety of the public. So why did he bring it up? I don't know. Whatever. He reversed his prior decision, which is what I care about most.
But it does still bother me. Did Judge Klein ever, at any point, express any degree of concern for the safety of Carrie and other material witnesses? What justification did he ever offer for totally ignoring the very specific and compelling evidence presented in the first hearing by the prosecution? The District Court judge acknowledged it readily. Was Judge Klein waiting for the motion to come engraved in stone? Perhaps he was waiting for the defense to stand up and exclaim, "Yes, Your Honor, my client is a danger to society!" How does a man of Judge Klein's responsibility say to himself, "I don't see any risk in letting loose a man who's on record as being an obsessed stalker, who's being charged with first degree murder and has everything to lose, and who might feel inclined to threaten person(s) preparing to testify against him. I refuse to acknowledge the legitimacy of the People's concern, despite the specific nature of the facts they present, and despite what the law itself recommends." To me, that goes beyond personal disagreement. It's the stuff that erodes public confidence. Maybe I'm wrong. What do I know about being a judge? But he seems awfully one-sided. Perhaps he was a defense attorney for too long.
Okay. Breathe. On a more positive note, I will say that we are all extremely relieved and grateful that the issue of bond is *finally* settled, and favorably. I slept more soundly Friday night than I had since Todd passed away, and enjoyed life over the weekend more than I had in years. An enormous load has been lifted off our minds, more than I know how to describe. We are now free to continue the business of sorting through our grief and moving on with our lives; fear over John's release had prevented that. Only now that the stress has been lifted can we see how hard it really was on us. I would never wish such anxiety on anyone. Our next big hurdle: the trial. But that's still months away. Thank goodness those months can now be spent in relative peace.
Judge Stanley P. Klein, may you balance out soon or retire early.
The end.
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