Sunday Commentary: $1 Million Bail Remains Unfair in Hate Crime Case

How to handle the matter of Lauren Kirk-Coehlo was always going to be a difficult call.  On the one hand, according to declarations from the police detective and Deputy District Attorney Ryan Couzens, she made statements in tweets and text messages threatening to kill people and professing support for mass shooters like Dylann Roof.

On the other hand, her actual crime of vandalism with a hate crime enhancement at the Islamic Center of Davis, while deplorable and vile, carries with it a maximum sentence of six years, is probation eligible, and the threats, while chilling, do not seem to have been close to being carried out.

How does one balance the danger of those statements against the lack of evidence of a more serious crime?

One way is to put a high bail on her – and I would argue that that is exactly what is wrong with the bail system.  True, a higher bail makes it less likely that a person is going to be able to make it.  But it also tacitly means that someone who can raise $100,000 for bail is somehow less dangerous than someone who cannot.

In a Friday column, Columnist Bob Dunning writes, “I have long thought that we are blessed in Yolo County to have Superior Court judges who consistently apply the law in a fair and even-handed manner.”

I don’t think most defense attorneys who practice in Yolo County, if they are being candid, would agree with this.  My observation after eight years in the courtroom is that, when it comes to making big calls, Yolo County judges nine times out of ten will side with the prosecution.

Now, in fairness, Judge Dan Maguire that Friday when he made the decision in the hate crime, actually sided with the defense two times out of three.

First, he denied the prosecution’s motion for no bail.  That turned out to be an easy call as the California Constitution grants the right to bail except under very specific circumstances.  Deputy DA Couzens attempted to stretch greatly to get to those circumstances, but his argument was frankly ludicrous, trying to call the vandalism of the Islamic Center an act of violence on a person.

Judge Maguire, in a separate case that we covered, did grant the defense a mistrial in the Eric Lovett case.  How rare was that?  We had never seen a jury verdict overturned by the judge who had presided over the trial in the time we have covered cases, and no one we had talked to had seen it in a good deal more time.  Given the thousands of trials over the years, this was a truly unique circumstance and it took a major supreme court case in the intervening time between the trial and the hearing to make it happen here.

I am still rather appalled by some of the motions in which the judges in Yolo County ruled for the prosecution over the defense.  One that sticks out is Judge Dave Reed allowing the interrogation, that led to the confession, of 15-year-old Daniel Marsh for hours without an attorney or parents present, and allowing a general request for counsel to stand.

So, no, I don’t agree that judges in Yolo County are particularly consistent or fair in applying the law.

On the issue of bail itself, there are uneven standards.  Frank Rees, who is charged in connection with the death of Baby Justice, is held on half a million dollars bail.  So too is the wife of the Orlando shooter.  A defense attorney told me she recently had a case in another county where bail was $250,000 on a kidnapping where the individual faces 27 years (4.5 times longer than the maximum sentence in the Rees case).

While Mr. Dunning is correct that the higher bail brings with it a lesser chance that the accused will make bail, he also correctly points out that “some people will make bail and will be back in the community, despite the presumed danger that led to the high bail in the first place.”

But it is more than that in this case.  This is not a life sentence case.  The individual will be out of custody at some point, whether it is after getting probation or after completing a prison term – even the six-year maximum sentence.

The defense made the point during the bail hearing that the judge could impose conditions to reduce the risk to the public.  In fact, because the judge granted bail in this case, he imposed them.  Is GPS monitoring, no weapons, and no communication with the Twitter users enough?  If not, the judge could have put more conditions on.

The chance that she was going to get out on a reduced bail and follow through on her threats seemed minimal.

And yet, the judge was not inclined to reduce bail here.  Why?  Well, because if the judge held her in custody unnecessarily, all he had to deal was with a few self-righteous opponents of monied bail complaining about fairness.  If he released her on a lower bail and the unthinkable happened, he’d have to deal with thousands if not tens of thousands of people second-guessing him.

I get it, he took the risk-averse path that most judges would take, but I don’t think he made the right call here.

The biggest problem that we will have to deal with is that some day in the next six years, probably a good deal less, Ms. Kirk-Coehlo will be out of custody and the most important question will not be what her bail was, but rather what we did to make sure that she would not be inclined to follow through on those unthinkable threats.

—David M. Greenwald reporting

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