“The Constitution presumes people charged with a crime to be innocent, but it also allows for bail to be set. This inconsistency is considered by judges across the country every single day.”
I Set a Defendant Free And Got Blamed When He Raped Someone
When a judge’s photograph appears on the front page of a newspaper, it’s probably because he died or is getting an award. But when a judge’s photograph appears on the front page along with a felon’s photo, it’s bad news every time.
The last week of March 2013 began as a routine one for me. As chief criminal judge for King County, Wash., I had arraigned and heard bail motions for a hundred or so men and women newly charged with felonies. I’d also had a brief, seemingly routine conversation with a reporter for the Seattle Times about a defendant, Ricky Lee Lewis, whom I had recently released pending trial but who had subsequently been rearrested.
On Saturday morning I had a semi-working breakfast planned with a friend and law professor and then, if it wasn’t raining (it’s Seattle), my wife and I planned to take a short hike.
I woke up late, padded to the front door to pick up my Times, and there, above the fold, was the headline:
“Freed sex offender accused of rape days later”
The subhead below the headline was: “‘I’m sorry I was wrong,’ judge says.” And there was Ricky Lee Lewis’ mugshot, right above my own.
Neither of us were smiling.
When I went to the online version, I saw that the comments were vicious: I was pro-rape; I was also incompetent and a “vermin.”
My stomach clutched.
At breakfast in a neighborhood café, a woman approached and asked if I was Judge Kessler. She had no weapon in her hands — I checked. With some trepidation, I acknowledged that indeed I was. The woman said she wrote a neighborhood crime blog, recognized me from court, and was just stopping by to say hello. She hadn’t seen the Times, I guess.
But that evening, my uncle, a retired personal injury lawyer living in Florida, called to ask me what the hell I thought I was doing. Apparently, I had made national news. (Someone told me that Bill O’Reilly commented on the situation; not being a Fox fan, I missed it.) Then a local right-wing talk radio host, John Carlson, attacked me in two separate shows. He interviewed a representative of the King County Jail corrections officers’ union, who urged listeners to remember this crime at the next judicial election.
Saying sorry isn’t good enough, the union guy said: Think of the victim. Judges, and “so-called judges,” get criticized publicly. That’s the nature of the beast. But a decision I made may have resulted in a woman being raped.
A month before I made that decision, in February 2013, a deputy prosecutor had filed a charge of “failure to register as a sex offender” against Ricky Lee Lewis. Hundreds of these are filed every year, and the prosecutor always asks for high bail — in this case, it was $30,000 cash.
The prosecutor’s request indicated that Lewis was convicted of forcible rape in 1993 and statutory rape in 1985, in addition to several nonviolent offenses, and concluded that his “failure to register… demonstrates an unwillingness to comply with court orders and presents a threat to community safety.”
Another judge had already issued the arrest warrant, and arraignment was scheduled for March 14.
When the day came, Lewis showed up in court, along with about 30 other defendants scheduled for the hearing. He was a bit wild-looking — compared to those of us in suits and ties — and was animatedly whispering to his attorney, whom he had just met. But that’s hardly unusual for people charged with felonies. It seemed telling that he stayed in the courtroom even after his new lawyer told him that if I didn’t order his release, he would be detained. It’s not uncommon for people in his situation, after hearing from counsel that there is a warrant, to quickly leave the premises, unwilling to chance a judge’s whim.
Here was my dilemma: The Constitution presumes people charged with a crime to be innocent, but it also allows for bail to be set. This inconsistency is considered by judges across the country every single day.
To me, the records showed Lewis had not been convicted of a violent offense in more than 20 years. And failure to register is not itself a violent crime.
So after hearing from both lawyers, I decided to follow the constitutional presumption of release.
A week later, Lewis was arrested on suspicion of rape and kidnapping. On March 25, he was charged with both crimes in the first degree. The court set bail at more than $1 million.
The probable cause declaration asserted that Lewis had kidnapped a woman, dragged her to his trailer, held her against her will, and raped her. (Lewis, who faced life in prison as a “persistent offender,” later pleaded guilty to lesser charges in exchange for a 7-year sentence.)
As chief criminal judge, when I learn that someone with a pending charge or who has recently been sentenced to probation has been arrested on a new felony, I let the judge who made the release decision know about it. That way, he or she can be prepared for a possible inquiry by the press.
This time, I didn’t need to call anyone.
On Friday, March 29, Christine Clarridge, a reporter for the Seattle Times, left the message at my chambers asking me to call her.
Judges rarely speak on the record to reporters, often ducking behind the Code of Judicial Conduct. But unlike most of my colleagues, I always return calls to newspaper reporters. (I don’t speak with local TV reporters, because they report all crime, all the time.)
I returned the call. Clarridge recounted to me what the initial police reports said and asked for my comments. I quickly reviewed the online court file of Lewis’ failure-to-register case as I spoke with her. She asked if I thought I did the wrong thing by releasing him. I acknowledged that the result was wrong and that I was sorry if he had re-offended, but I did what I thought was the right thing to do at the time.
The Saturday morning front page story began:
Less than a week after a King County judge allowed a convicted sex offender to walk out of jail without having to post bail, prosecutors say the man kidnapped and raped an 18-year-old woman in North Seattle...
She quoted me as saying:
“I’m sorry I was wrong, but that was my judgment at the time,” Superior Court Judge Ronald Kessler said on Friday. “Judges take risks every day. The only way to avoid that would be to keep everybody in jail as long as possible, but that’s the easy way out.”
On Monday morning, I called Clarridge and left her a message: the New York Post* *would be proud of her, I said. She quickly called back. I told her that while I knew she had little to do with article placement in the newspaper or the content of the headline, the story itself sought to blame me for the new crime, and nothing she wrote actually described the law that I was supposed to follow: the presumption of pretrial release.
After some semi-polite back and forth, she agreed that the article’s headline and placement and the photo of me next to the perp weren’t fair. She asked what she could do to make it right.
So I invited her to sit next to me on the bench at a normal high-volume arraignment calendar — to see what I see, to view the documents I consider, and to hear the lawyers and clients as I hear them. After consulting with her paper, she agreed.
A few weeks later, at 8:45 a.m., when the bailiff shouted “all rise, court is in session,” I climbed onto the bench as usual, in a black robe, and Clarridge joined me. A Times photographer was swooping around the bar and bench, snapping hundreds of photos.
One of the defendants being arraigned that morning happened to be a man charged with failure to register as a sex offender. Bail had been set at $30,000, and, like Lewis, he had appeared in response to the mailed summons.
As his lawyer argued for release, Clarridge and I whispered back and forth. I explained what we were looking at: the charging documents, the man’s criminal history and details of prior King County cases showing his appearance history. It moves quickly, I told her, but we have a lot of information to consider.
After Clarridge heard what the lawyers said and read the documents, I think she understood that I had to let him go. I did.
She sat there for another couple of hours, until the morning recess. As we walked back into chambers, she said “wow.”
On June 5, 2013, above the fold, across four columns, the headline read: “A VIEW FROM THE BENCH; As cases fly at him, judge must weigh public safety vs. rights of defendants.”
There were two photographs. One was from behind the bench, looking out to the bar. The other was from behind a lawyer and client, looking up at me.
Ronald Kessler is a retired King County Superior Court judge.
Story Source: https://www.themarshallproject.org/2017/08/31/i-set-a-defendant-free-and-got-blamed-when-he-raped-someone