Author Archives: James Lindblad

Bill Proposed To Remove Bail Setting For Some Defendants

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A Maine lawmaker has drafted a bill that if passed, would replace the state’s cash bail system with  a risk assessment model.

Bail sign.

The bill is similar to one that was passed by New Jersey last year, he said, and could reduce the annual operating costs of many of the state’s lock ups; housing fewer inmates should, in theory, save taxpayers money.

The idea behind it is simple- free up some of the jails’ bed space by allowing low-risk, low-level offenders to be released without needing to post bail bonds.

Prosecutors disagree with that theory and say it’s a bad, bad idea.

Less likely to go to court

Defendants who are released without needing to post bail bonds have a much higher failure to appear rate than those who do, thy said, and when the failure to appear rate climbs, that leads to increased court administrative costs.  It also leads to an increase in warrants and that can strain the resources of police departments.

They believe that many of the state’s pre-trial inmates are behind bars for a reason; they have either re-offended or have violated their previous terms of release.

Law enforcement officials agree that while a bail, and jail reform is needed, this is not the way to do it.

Rewarding the rich, punishing the poor

Some allege the current bail system unfairly targets poor defendants, most of whom can’t afford to post bail.  When someone is charged with a low-level crime but can’t afford to post bond, they are often held behind bars for weeks or months on end.

This can lead to a loss of income and in many cases, the loss of a job. Proponents of bail reform say that passing it

The conversation surrounding reform

Another component of the mix relates to public safety; while freeing up bed space may save taxpayers some money there is concern that the mass release of pre-trial defendants could lead to upticks in crime rate.

On the other hand, county jails say they are expecting a mass budget shortfall before the close of 2015 and are already asking the legislature to support emergency funding for their facilities.   The governor said he doesn’t support the request.

The risk assessment proposal

Supporters of the bill say this won’t be a wide-reaching get out of jail free card for all pretrial defendants.  Each will need to be evaluated to determine whether their release will pose a risk to public safety and whether they are likely to return to court when they are supposed to.

Although it’s still too soon to know whether the bill will pass, supporters say that if nothing else, it’s spurred some healthy discussion.

via – thebailblog.com

Bail Industry Wants Oregon to Return to a System it Once Rejected

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Representatives of the commercial bail bonds industry make no bones about it: They think Oregon would be better off to revert to the bail system the state ran before 1974.

“Absolutely,” says Jeremy Hubbard, a bail agent in Vancouver, Wash., corporate manager of A-Affordable Bail Bonds and president of the Washington State Bail Agents Association. Like other bail bondsmen across the country, he contends that a commercial surety bail system saves taxpayers money and protects public safety to a greater extent than a government-based system such as Oregon uses.

Hubbard and his colleagues may have a tough sell. An indication of that is that Oregon’s legal community and the state’s public safety system stand virtually united against going back to a commercial bail system. Such a move has been proposed in several bills in different years, most recently House Bill 2548 in the 2013 legislative session.

Although the United States is almost alone among nations to allow commercial bail bonds, 46 states use such a system. The remaining four, rather disparate states — Oregon, Kentucky, Illinois and Wisconsin — forbid bondsmen. What’s more, the Oregon Criminal Defense Lawyers Association and the Oregon District Attorneys Association both oppose bringing back bail bondsmen. Agreement is uncommon between these two groups on many issues. And in some other states, either or both of these type of practitioners may support having commercial bail, notes Gail L. Meyer, lobbyist for the Oregon criminal defense lawyers group.

“I am keenly interested in keeping bail bondsmen out of Oregon,” says John Henry Hingson III, a past president of the National Association of Criminal Defense Lawyers and a past president of the Oregon Criminal Defense Lawyers Association. The OCDLA likewise is against commercial bail, Meyer says.

“The Oregon District Attorneys Association is adamantly opposed to the return of bail to Oregon, for some very good reasons,” says Doug Harcleroad, executive director and a former Lane County district attorney. “We’re opposed to it because we’ve gotten a better system. We have a system that works.”

“The district attorneys association is opposed to going backwards in time, for all the reasons [a commercial bail bonds system] was abolished,” adds Joshua Marquis, district attorney for Clatsop County. “We’ve had robust discussions about that.”

The Sheriffs Weigh In

Although the dearth of law enforcement resources in many counties in Oregon has been spotlighted in the news media, law enforcement officers don’t see commercial bail as a solution, but instead something that would add complications.

“We do not support the bail bonds industry, and we haven’t ever supported the bail bonds industry,” says Sheriff Jason Myers of Marion County, who chairs the legislative committee for the Oregon State Sheriffs’ Association. “There are a lot of issues with bail bonds that we believe would jeopardize the system we’ve developed in Oregon.”

He says the association has looked at how bail bonds operate in other states and, as a result, has concerns such as violation of “individual rights, the training of bail bondsmen and how they operate in the community. It’s safe to say that we have confidence in our system,” and in the training and experience of professional law enforcement officers.

Aaron D. Knott, legislative director for the Office of the Attorney General, says the Department of Justice also remains opposed to the return of commercial bail bonds.

“I am reacting primarily to HB 2548 and cannot speak prospectively about legislative proposals which I have not seen, but I can state generally that HB 2548 left DOJ with very serious concerns,” he says. “We have worked tirelessly as a state to develop a system where decisions on all levels of the justice system are made via an evidence-based, deliberative process. Our system of pretrial release is no different.”

Knott also cites the potential for loss of judges’ discretion and revenue to the state as reasons not to endorse bail bonds. “It is badly out of pace with the careful strides we’ve made across the criminal justice system to allow our pretrial release process to be governed by financial incentives in lieu of judicially driven release decisions meant to address recidivism, victim protection and offender rehabilitation,” says Knott. “I also retain concerns that our system of restitution and the rights of victims may be subordinated under this proposal.”

Susan Grabe, public affairs director for the Oregon State Bar, explains that the statutory changes previously proposed by the bail industry would significantly reduce child support and restitution collected from criminal defendants; limit the court’s ability to protect the public through the use of release conditions; and increase the court’s workload while simultaneously reducing revenue. “These changes provide little of value to Oregonians that is not achieved by the current pretrial release system,” she says. “The bar strongly supports a criminal justice system that protects the public while ensuring victims and children receive the support they deserve.”

Scott Winkels, lobbyist for the League of Oregon Cities, says his organization opposed the most recent legislation, as well. “We would have some concerns about changing the system,” he says. “We had looked at some examples of how things work in other states. We weren’t overly impressed with what we saw.”

Winkels stresses that lobbyists make decisions about specific bills, and he never would rule out a bill without first examining its merits. But with the 2013 proposal, “the butcher, baker and candlestick maker” came out against it. “I never identified any public-safety interest in Oregon that was supportive of the concept.”

Washington bail agent Hubbard maintains that victims’ rights advocates “would love to see bail bondsmen” in Oregon, because under the state’s current system, victims are not getting assurance that the defendant will show up. They are much more likely to appear in court if they have put money down to the bondsman, he says.

But Rosemary W. Brewer, legal director for the Oregon Crime Victims Law Center, says she has not heard any organizations similar to hers endorse commercial bonds systems. “I can’t speak for all victims’ rights advocates, but I can tell you that personally I think Oregon’s system is better for victims than a private bail system would be.”

Oregon’s pretrial release system includes criminal fines, fees and assessments, which means a portion of what a defendant pays the court can be used for victim restitution if the defendant is found guilty. Brewer says restitution is hard to get no matter what, so at least Oregon’s system “does give the victim the possibility of restitution,” whereas under a commercial bail system, the percentage of bail paid by the defendant stays with the bondsman and never is returned to the court.

The 1973 Legislature abolished commercial bail and gave Oregon its current security release system beginning Jan. 1, 1974, Hingson points out (Oregon Laws 1973 c.836 §146). The American Bar Association’s standards on pretrial release served as the model for reform in Oregon. The ABA standards were developed in a joint effort by judges, prosecutors, defense attorneys, law enforcement officers and correctional officers, he says.

Oregon lawyers colloquially refer to Oregon’s system as “deposit bail,” because some defendants who are released must pay a 10 percent deposit of the total security release to the clerk of the court. But in Oregon’s statutes, the term “bail” technically is not part of the state’s pretrial release system; the term was purposefully “retired,” as lawmakers phrased it, to disassociate Oregon’s system from the connotations connected with commercial bail.

Doug Bray, trial court administrator for Multnomah County, says the legislature established the authority for the presiding judge of a judicial district to delegate release authority to pretrial release officers. The law also laid out three options for release from pretrial detention:

Security release, with a 10 percent deposit required for release.

Conditional release, a release without security, but on supervision and conditions.

Personal recognizance, a release without supervision but on conditions.

Advocating for Bail

Nicholas Wachinski, executive director of the American Bail Coalition, a trade group for the industry, says bail bondsmen have a place in every state because they provide the best bet that a defendant will show up for a court appearance and not flee, which he says protects the public and “certainly benefits law enforcement.”

In addition, Wachinski says, “We have a great relationship with defendants,” many of whom “come to appreciate our help. Bondsmen have been especially effective in getting drug and alcohol treatment if they need help.” He also maintains that states such as Oregon that don’t use bondsmen experience “tremendous jail overcrowding problems. We could be part of that solution.”

An investigative article in the May-June issue of Mother Jones magazine disputes that latter contention. “In 2011, Attorney General Eric Holder said commercial bail was a major obstacle to reducing inflated prison populations,” the article reported:

Of the nearly 750,000 people in America’s jails at any given time, two-thirds are awaiting trial. Of accused felons held until case disposition, 89 percent are there because they can’t afford bail. The American Bar Association, the National Association of Counties, the International Association of Chiefs of Police, the National District Attorneys Association and others have condemned commercial bail as a system that discriminates against the poor and places Americans’ liberty at the mercy of private businesses.

Hubbard says Washington bondsmen and bounty hunters have no jurisdiction in Oregon over defendants from other states who fail to appear in court. As a consequence, he says he knows anecdotally that Oregon has become a haven for “bail jumpers,” who potentially are in a position to commit additional offenses without having answered to their original charges.

Likewise, Oregon lobbyists James and Lynda Gardner, representing Aladdin Bail Bonds, argued in trying to pass the 2013 HB 2548 that the bill “would help address two serious problems that have plagued the Oregon criminal justice system for years” — a high failure-to-appear rate on the part of defendants, and “Oregon’s unique status as the only state in the nation that does not permit out-of-state bail recovery agents to operate within its borders.”

Like Hubbard, the Gardners claim that the latter prohibition creates a public safety hazard because it allows defendants from other states to flee here unlawfully. “There are no statistics on the topic,” James Gardner acknowledges, but he adds that Aladdin has reported many instances in which bail agents are told by officials in Oregon that the agents should not call into the state about fugitives.

The defense lawyers’ association’s Meyer contests the assertion that Oregon experiences a high no-show rate by defendants. “We really question their contention,” she says. “They won’t show us evidence.” Besides that, because appearance compliance is a county-based function, data on that are kept by each county, she adds. National statistics may come from states or jurisdictions within them, so Oregon’s numbers would be like comparing apples to oranges, she says.

Both proponents such as Hubbard and opponents such as Meyer agree that a major part of the controversy behind the issue of commercial bail versus a government pretrial release program revolves around which system offers the most protection, both to the public as well as defendants. Meyer says Oregon’s pretrial release statutes allow a lot of variability and discretion by a judge to weigh flight risk, except for Measure 11 crimes, which require a money deposit for pretrial release. Because Oregon jail management is a county duty, counties vary in how they handle decisions about release. Some do it through the local county jail under supervision of sheriffs’ departments, others through the courts. Some have formal pretrial release programs and staff, others do not.

Multnomah County trial court administrator Bray emphasizes that prelease trial services are dependent on adequate funding, and many Oregon counties have had to cut the amount of money going to them and are unable to afford pretrial release officers.

“That’s why you have such a wide difference on how each county approaches this,” he says. “Every circuit court in the state would like to have a pretrial release program staffed by one or more pretrial release officers, but in times of scarcity these positions are usually the first to go, and once lost are very difficult to replace.”

Sheriff Myers explains that Marion County uses risk assessment tools to determine each individual’s risk to commit a new crime, and then makes a decision based on that person’s charges and risk to re-offend to decide whether to release him or her by either requiring a deposit of the total security amount, to release on recognizance, or not to release.

“The big divide is, what’s the primary concern?” says defense lawyers’ lobbyist Meyer. “The primary goal of bail bondsmen is to make money. The primary goal of pretrial release programs is public safety.” Bondsmen work on commission and don’t lose any money if a defendant re-offends, only if the defendant doesn’t appear in court, she says.

The sole purpose of the commercial bail industry is to make money, adds the district attorneys association’s Harcleroad. “They’re not altruistic at all. That’s what insurance companies do.”

Resisting a Return to the Past

Criminal defense attorney Hingson entered law practice in 1971, three years before Oregon’s Legislature ditched the commercial bail system. He remembers what he calls “the bad old days” and the abuses of bail bondsmen in Oregon.

“The bail bonds system brings the potential for the corruption of the judicial system,” he says. “The bail bonds system has the real potential of polluting Oregon’s waters.” He cites that type of system as an “example of poor people getting milked of their money” by people “who focus on profit rather than on justice.” It’s “a way to make money off indigents accused of crime.”

Bail bondsmen “prey on poor people,” agrees prosecutor Marquis. There is not much incentive to bring back that system, except by those who would profit from it, he says.

“There are too many abuses with bail bonds and the possibility for corruption. I’m very opposed to privatizing public safety — bail bonds, private police or private prisons. … In fairness, most people don’t have the historical memory” to recall what it was like before.

Raymond M. Rask does. A veteran trial lawyer, he was admitted to the Oregon bar in 1961 and handled a number of criminal defense cases throughout the 1960s. During that time, downtown Portland hosted both a district court and a municipal court, the latter for criminal cases.

“It was a zoo down there, a madhouse,” he says of the municipal court. “Bail bondsmen running around trying to find lawyers” they could pay a few dollars to to ensure that defendants showed up in court, even if those lawyers weren’t representing the particular clients the bondsmen sought.

The atmosphere was “anything but professional,” Rask says. “It would be a travesty” to return to a bail bonds system, and it “would lower the dignity and professionalism of the courts down to the gutter again. I am unalterably opposed to returning to a bail bonds system.”

According to the Justice Policy Institute, which advocates for the abolition of for-profit bail, approximately 15,000 bail agents work in the United States, writing bonds for about $14 billion annually. The industry does an estimated $2 billion in revenue annually and is supported by about 30 insurance companies that underwrite them. The institute says the bail industry conducts multimillion dollar lobbying efforts to “attack and defund” pretrial services and increase profitability by reducing regulation and financial risk.

“Backed by multibillion dollar insurance giants, the for-profit bail bonding industry maintains its hold in the pretrial system through political influence,” says Spike Bradford, senior research associate for the institute. “The industry’s political influence also perpetuates the use of money bail instead of other alternatives that allow people deemed low risk of re-offending or failing to appear in court to remain free until their trial.”

The institute singles out Multnomah County as having a model pretrial release service.

In a 2010 report, NPR noted that the regulation of bail agents varies widely across the country. Many, but not all, states require bondsmen to be licensed. To receive a license, agents generally must undergo eight to 16 hours of training, submit to fingerprinting and a background check, and be a resident of the state. Washington state requires bondsmen to obtain licenses from both the departments of insurance and licensing, undergo a specified amount of hours of training and submit to a background check, Hubbard says. All bail bondsmen carry guns, too, he adds.

NPR calls the bail bonds system one that:

rewards the wealthy and punishes the poor. It exists almost solely to protect the interests of a powerful bail bonding industry. The result is that people with money get out. They go back to their jobs and their families, pay their bills and fight their cases. And, according to the Justice Department and national studies, those with money face far fewer consequences for their crimes. People without money stay in jail and are left to take whatever offer prosecutors feel like giving them.

Portland victims’ right advocate Brewer, a former prosecutor, says the jurisdictions she previously practiced in, Baltimore and Atlanta, where commercial bail existed, were “rife with corruption.”

The Justice Policy Institute states in a report:

That for-profit bail bonding introduces money and profit into the pretrial process and gives bail agents complete control of an accused person’s liberty has led to numerous instances of abuse and corruption in the industry. Cases abound of bondsmen bribing jailers and inmates for increased access to potential clients, employing brutal and illegal methods to extort money and information, and even using their extralegal powers to coerce people into sexual acts.

Preparing to Make Their Case

The industry recognizes and acknowledges that it has an image problem. Hubbard’s A-Affordable Bail Bonds is a member of ExpertBail, a national network of bail agents created by AIA — the largest group of bail bond insurance companies — to try to repair public perceptions. ExpertBail bail agency members must follow “established professional standards of integrity and conduct,” its website states, adding:

When people run into life’s unpredictable moments, we know they need comfort and direction. They need an expert to help them navigate the unfamiliar bail bond process. We are here to help. You can be confident that when you choose an ExpertBail agent, they will do just that. Our agents will go above and beyond any expectations you may have to make sure you and your loved one are taken care of.

ExpertBail agents probably aren’t who you expect. They don’t have mullets or wear bulletproof vests. They don’t run through alleys or jump over parked cars leaving a trail of destruction behind them. ExpertBail was created to separate the high-quality bail bond agent from the low-quality bail bond agent. …We want to educate the public on how we support the criminal justice system and increase public safety. …We want to spread awareness about the positive side of bail bonds. After years of being misrepresented by the news media, the movies and a few bad apples in the industry, we have finally had enough. Hollywood has made billions of dollars by positioning bail bond agents as delinquents, scumbags and criminals. This is not the case, and we want to set the record straight.

Oregon’s legal community is bracing for the 2015 session, when it expects the commercial bail industry will return to the legislature to argue once again for changing the state back to bail bonds. “It’s going to be a big deal,” says Marquis. “It was a big deal in the 2013 session.”

The American Bail Coalition and its lobbyists “came close to re-legalizing” bail bondsmen in the 2013 session, according to the article in Mother Jones, which says the organization “spent $250,000 to promote the idea.”

Marquis thinks some legislators are in favor of changing Oregon’s system and that the arguments the bail bonds industry uses “can sound reasonable.” But lobbyist Meyer says, “I never saw a legislator adopt this issue and own it. There was an odd sense that people who would be opposed are not saying anything.”

Opponents of commercial bail might presume that because the attorney general’s office and the state’s associations representing lawyers, as well as many other organizations such as the sheriffs’ and cities’ associations, oppose reverting to that system, proponents stand little chance of success. Meyer doesn’t buy that proposition.

“I take this industry very seriously,” she says. “Now that it’s backed by surety companies, it has bucks.” Even in some states where the entire array of public safety agencies was against it, she says, bail bonds legalization legislation still passed anyway.

 

ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin. Reach him at tundra95877@mypacks.net.

via osbar.org

Police Commission chair should resign in wake of yesterday’s extraordinary action in federal court

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Yesterday’s extraordinary events in Honolulu’s Federal District Court, and the response of the chairman of the Honolulu Police Commission, demonstrated again that “police accountability” is a contradiction in terms here in our fair city.

It’s time for the commission chairman to step down, and for new leadership to shake up the commission and its approach to its duties. The City Council and the mayor also have to be held to account about the sad state of affairs.

Yesterday’s major shock was the decision by federal prosecutors to throw out charges against Gerard Puana, uncle of the wife of Police Chief Louis Kealoha. Puana had been accused of stealing the mailbox from the chief’s former house in Kahala, following an investigation by HPD.

The move, according to news reports, was taken after prosecutors reviewed evidence collected by Puana’s attorney, Alexander Silvert, who has publicly alleged police misconduct in the case.

According to the Star-Advertiser:

Silvert said he met with prosecutors following the mistrial because he and Puana decided to put their faith and trust in the integrity of the U.S. Attorney’s Office. “We presented our entire case, from top to bottom, to the prosecutors,” Silvert said. He said that included evidence he and investigators from his office uncovered during their own investigation.

Silvert said he also told federal prosecutors what eight of the jurors told him after Kobayashi had discharged them.

“All eight had said to us that after they saw the videotape (of the theft), they had already decided (Puana) was not guilty,” Silvert said.

Here’s the top of the title page from the docket of Puana’s federal court case, stamped simply, “Closed”.

But the story isn’t that simple.

The dismissal is a big deal on its own. But prosecutors went further, dismissing the case “with prejudice,” meaning that charges cannot be refiled, and asking the FBI to review the evidence, presumably to consider whether crimes were committed by police.

According to Hawaii News Now:

“This is the first time I’ve ever seen this happen,” says legal expert Ken Lawson, a University of Hawaii law professor, “The prosecution… not just dismissed it, but dismissed it with prejudice. And ‘with prejudice’ means not only are we dismissing your case, but we’re never bringing it back.”

Lawson is not involved with this federal trial, but has worked many federal cases in various states.

“There’s cause for great concern,” he says, “If I’m the chief of police, I’ve got a lawyer now.”

Prior to yesterday’s dismissal, there was a flurry of communications between prosecutors and attorneys, all of which were sealed and unavailable for public inspection. Click here for a list of documents filed with the court under seal since the December 4, 2014 mistrial, which was caused by Kealoha’s unsolicited disclosure of information about Puana’s history during his trial testimony. Observers say it was a rookie error, and unusual for an experienced police officer.

Instead of expressing concern about the unusual turn of events, which puts HPD in a very bad light, Police Commission Chairman Ron Taketa came out sounding like a spokesman for Chief Kealoha rather than the head of a panel which is supposed to provide independent oversight of the police on behalf of the public.

Without seeing any of the evidence that prompted the about-face by federal prosecutors and another federal investigation of HPD, Taketa used the opportunity to vouch for the chief.

The Star-Advertiser reported:

Police Commission Chairman Taketa said he believes the commission’s hands are tied in making public statements about the mistrial because a federal investigation is underway and because the department has rules about releasing personal information about police employees, including the chief.

And if the chief were found guilty of any wrongdoing, any discipline would likely be confidential because the case is considered a personnel matter.

Taketa added, however, that the commission holds the chief to a higher standard than other city employees and that he has been forthcoming with the commission, alerting it to his family dispute.

“He was honestly sincere about apologizing for what he said,” Taketa said. “He just admitted that it was error and it was spur of the moment and he regretted it.”

He continued: “The mistrial was the furthest thing from his mind as to what he wanted coming out of that trial. There’s actually in my opinion no reason to believe that he would have benefited from a mistrial.”

At minimum, I would have expected someone in Taketa’s position to express serious concern about the extraordinary circumstances and pledge to take action if the evidence, or the FBI probe, reveals departmental misconduct.

Instead, we had the chairman singing the chief’s praises, as if none of the other events of the day had taken place.

Taketa, the financial secretary and business representative for the Hawaii Carpenters Union, was first appointed to the police commission back in about 1990, and served for at least 15 years, and was appointed again in 2011. It would appear that his relationship is far too cozy with HPD to exert any real oversight.

Via ilind.net

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The ones that get away

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PHILADELPHIA — For a man on the run from charges that he sexually assaulted a 14-year-old girl, Thomas Terlecky has surprisingly little to fear from the law. The police here know exactly where to find him, but they will not go get him.

Terlecky got away by catching a Greyhound bus to Miami.

The police in his new hometown know that Terlecky is a fugitive, and they have tried repeatedly to return him to Philadelphia — both before and after he was convicted of having sex with two other underage girls in Florida. As recently as November, police handcuffed Terlecky and called Philadelphia authorities to tell them their fugitive had been found.

But just like every time before, the authorities in Philadelphia refused to take him back.

Across the United States, police and prosecutors are allowing tens of thousands of wanted felons — including more than 3,300 people accused of sexual assaults, robberies and homicides — to escape justice merely by crossing a state border, a USA TODAY investigation found. Those decisions, almost always made in secret, permit fugitives to go free in communities across the country, leaving their crimes unpunished, their victims outraged and the public at risk.

Each fugitive’s case is chronicled in a confidential FBI database that police use to track outstanding warrants. In 186,873 of those cases, police indicated that they would not spend the time or money to retrieve the fugitive from another state, a process known as extradition. That’s true even if the fugitives are just across a bridge in the state next door. Another 78,878 felony suspects won’t be extradited from anyplace but neighboring states.

Few places are immune. Police in Philadelphia, Atlanta and Little Rock — all among the nation’s highest-crime cities — told the FBI they wouldn’t pursue 90% or more of their felony suspects into other states. Los Angeles police said they would not extradite 77 people for murder or attempted murder, 141 for robbery and 84 for sexual assault.

The FBI refuses to say who or where those fugitives are. But USA TODAY identified thousands of them using records and databases from courts and law enforcement agencies. Among the fugitives police said they would not pursue: a man accused in Collier County, Fla., of hacking his roommate’s neck with a machete during a fight over two cans of beer; a man charged with drawing a gun on a Newport News, Va., store manager during a robbery, and even one of the men Pittsburgh identified as among its “most wanted” fugitives.

Such fugitives should be among the easiest targets in the nation’s fragmented justice system. The police typically don’t hunt them; instead, they wait for officers to come across them again, during traffic stops or when they’re arrested on new charges.

More often than not, the suspects are found locked up in another city’s jail.

But if that jail happens to be in a different state, local law-enforcement officials regularly refuse to get them because they don’t want to pay the cost or jump through the legal hoops required to extradite them. That process can be either swift or surreal: In many cases, it costs no more than a few hundred dollars, but it can also require months of paperwork and the signature of both states’ governors.

The police let them get away instead.

Even Terlecky, wanted in Philadelphia for a first-degree felony, was surprised. “Why would they not extradite on a felony warrant?” he said in an interview. His only guess: “This wasn’t a case where I forcefully grabbed the kid. That’s the only reason I’m thinking why they won’t push to bring me back.”

Thomas Terlecky talks about the charges he’s facing, why he fled Philadelphia, and why officials there won’t take him back.Brad Heath, Jennifer Harnish, Shannon Rae Green, Steve Elfers

Terlecky said that in the 17 years he has been a fugitive, he has lost count of how many times Florida police threw him in jail in hopes of returning him to Pennsylvania. But the arrests all end the same way. In November, Miami-Dade police detained him after he was pulled over for an obscured license plate. A few hours later, Philadelphia officials “asked that (he) be released” because they were unwilling to travel beyond Pennsylvania’s neighboring states to get him, according to police records. An officer drove him home.

Terlecky is wanted on charges that he had what prosecutors called “consensual” sex with a 14-year-old girl in a downtown Philadelphia hotel in 1996, a felony because of her age. He was convicted of having sex with two other girls in Florida — one 14, the other 15 — in the years that followed and is now a registered sex offender. Terlecky said in interviews that he is innocent of the Philadelphia charges, that he fled because he was afraid of being locked up awaiting a trial, and that he would gladly go back if he could be assured that he would not spend time in jail.

Prosecutors said they didn’t chase Terlecky because the woman he is accused of assaulting was uncooperative.

“That’s not true,” the woman said when USA TODAY contacted her this year. She asked not to be identified to protect her privacy.

Her father took her to court on her 15th birthday to testify against Terlecky at a preliminary hearing. “We walked out of there with our heads held high thinking he’s going to jail for what he did to me,” she said. It was the last she heard of the case; she assumed Terlecky was in prison.

Pennsylvania’s Victim Advocate, Jennifer Storm, said victims need to be informed whenever officials choose to let a defendant get away. “It is alarming that there are victims who are further harmed by denying them the opportunity for justice, restitution and safety,” she said.

The woman Terlecky is charged with assaulting said no one told her that he fled Philadelphia or that prosecutors there had decided not to pursue him as long as he stayed in Florida, where he started a general contracting business that he said counts police officers among its customers.

“He got away with it,” she said when she found out. “That makes me sick to my stomach. It’s disgraceful.”

via - www.usatoday.com

Cops can Execute a Warrant in the Middle of the Night in a Public Park

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State v. Williams (ICA September 22, 2014)
Background. Fred Williams was in Cartwright Park in Honolulu after closing time. The signs around the park posted that no one can be there between the hours of 10:00 p.m. and 5:00 a.m. The police found him and cited him for being in the park during the off-hours. In the process, they discovered that an outstanding bench warrant (a judge ordered a warrant for his arrest for failing to show up to court on an unrelated matter) was out for him. He was subsequently arrested for that. After being placed in handcuffs, the police discovered a glass pipe, two lighters, and small baggies on his person. This discovery led to prosecuting him for possession of drugs and drug paraphernalia. The warrant, however, expressly and explicitly stated that it could not be executed between the hours of 10:00 p.m. and 7:00 a.m. “on premises not open to the public.”
Williams moved to suppress on the grounds that the warrant was improperly executed. The circuit court granted the motion. The prosecution appealed.
The Limits of Executing Warrants. Warrants shall “contain a prohibition against execution of the warrant between 10:00 p.m. and 7:00 a.m. on premises not open to the public, unless a judge of the district or circuit court permits execution during those hours in writing on the warrant[.]” Hawaii Rules of Penal Procedure (HRPP) Rule 9(b). The Williams warrant contained this prohibition. And yet the warrant was executed on a premises that was “not open to the public”—Cartwright Park after dark.
Court rules are interpreted like statutes. Molinar v. Schweizer, 95 Hawaii 331, 334-35, 22 P.3d 978, 981-82 (2001). When “the terms of a statute are plain, unambiguous and explicit, we are not liberty to look beyond that language for a different meaning.” State v. Haugen, 104 Hawaii 71, 75, 85 P.3d 178, 182 (2004). But this isn’t always the case. According to the ICA, when a literal construction leads to “an absurd and unjust result,” id., the court can resort to the legislative history to discern the intent behind the language.
“Not Open to the Public” Means Private and Places that the Public can go to. The ICA zeroed in on the part of the rule that forbid the police from executing warrants in places at night that were “not open to the public.” The Judicial Council of Hawaii’s Committee on Revision of the Rules of Criminal Procedure came up with these words in the 1970s. Back then, the drafters used the words “not open to the public” instead of “private” in order to avoid the technical and difficult questions related to title.
The ICA agreed with the prosecution that a literal reading of the prohibition lead to an absurd and illogical result. It concluded that limiting the execution of warrants “on public property only to those hours the property is technically ‘open’ is to make the exception a nullity.”
No Need to Fear Nighttime Warrant Executions Here. Warrants are normally not allowed to be executed at night because there is a “greater expectation of privacy that individuals possess in their homes at night” and a nighttime search creates a “heightened safety risk since people may tend to overreact to an entry by force in the dead of night[.]” State v. Richardson, 80 Hawaii 1, 7, 904 P.2d 886, 892 (1995). This concern, according to the ICA, is absent when the warrant is executed on public property.
And so the ICA vacated the suppression order and remanded the case back to the circuit court for further proceedings.
Rule 9 and the Homeless Hypothetical. The ICA appears to have held Rule 9’s “prohibition against execution of the warrant between 10:00 p.m. and 7:00 a.m. on premises not open to the public” does not prohibit the police from executing a warrant in a public park during off-hours. The details surrounding Williams and Cartwright Park in this opinion are few and far between. Perhaps Williams was standing around and the police approached him for being in the park after dark. That seems to fit well with the ICA’s interpretation of Rule 9.
But what if this wasn’t Cartwright Park? What if this was Aala Park and what if Williams was living in a tent? Or even under a shopping cart? Would the “greater expectation of privacy” still be absent? According to the ICA, the answer seems to be yes. The ICA held as a matter of law that the police may execute a warrant in the middle of the night so long as the person is on public property—even if you’re in a tent on that public property. That strongly suggests that the homeless do not have an expectation of privacy. Now, we will have to wait for such a case to come before the appellate courts to determine that much more difficult question.