The University of Baltimore's legal clinic is challenging a ruling by a Baltimore circuit judge who was recorded saying that she set a high bail knowing it likely would keep the defendant behind bars.
Maryland law requires that bail be used only to assure a defendant shows up for trial, though many defense lawyers believe judges routinely skirt that standard. The comments by Judge Yolanda Tanner and the challenge by the UB Pretrial Justice Clinic come amid an emerging debate about whether the state's cash bail system is unfair and should be scrapped.
State Attorney General Brian Frosh released an opinion this month saying Maryland's system of holding defendants in jail when they can't afford to pay cash bail would likely be found unconstitutional. Judges and court commissioners must take into account the accused's ability to pay before setting bail, he said.
The candid discussion between Tanner and one of her clerks was captured Sept. 2 by courthouse recording equipment after Tanner set a $750,000 bail for Nicole Easley, who was charged with attempted murder for allegedly stabbing her boyfriend.
"She can't make that bail," Tanner was recorded saying, according to a transcript. "She's not employed, she's got six kids, she doesn't seem to have the assets. It's not going to happen."
After hearing had concluded, Tanner continued to discuss the case with her clerk, saying bail should be based on the offense regardless of someone's financial status.
"It does mean that poor people wind up in jail, it does mean that," Tanner said. "Which is why everybody is talking about reforming the cash bail system."
Easley remains in jail, unable to pay.
Zina Makar, co-director of the University of Baltimore clinic, and Adam Shareef, a law student, wrote in their challenge that Tanner "set bail knowing that the amount was out of reach … and she would remain incarcerated." Tanner also refused to take into account any other factors, such as Easley's ties to the community and prior record, they said.
A clerk said Tanner was unavailable for comment.
Judges can order a defendant held without bail if they believe he or she poses a danger to the community or is a flight risk. A bail amount is intended to ensure a defendant's appearance by imposing a financial incentive to make a court date.
At daily bail review hearings across the state, attorneys regularly argue about defendants' work histories, ties to the community and prior records in hopes of gaining their release. But in practice, the crime often dictates whether an arrestee is granted bail, attorneys and other legal observers say.
"In my experience and the experience of many if not most of my colleagues in the bar, the judiciary is not following the statute or the rule" on setting bail, said Del. Erek Barron, a Prince George's County Democrat who is a former prosecutor in Prince George's and Baltimore. "Often times, even when a bail is set, they're setting a bail that they think the individual can't make."
Barron said in some cases, the decision can backfire: Sometimes a defendant a judge intends to be detained on a high bail can come up with the money and is released. Other times, Barron said, people who should be released are given a bail they can't afford and remain held.
The delegate said arbitrary numbers are often set. "Where does $750,000 come from? That cannot be explained," he said.
In Baltimore County this month, a District Court judge set a $250,000 bail for a 56-year-old man charged with killing his wife in 2006. The suspect, Michael Amick, who had been living in Hawaii, was able to post the bail and is free pending trial.
Easley is accused of stabbing her boyfriend in the stomach with a butcher knife in May. Police said in charging documents that she had looked through her boyfriend's phone and become upset after seeing contact with other women. Her attorneys say that is only one side of the story.
She was initially ordered held without bond by a District Court commissioner, in part because the court was concerned that she and the alleged victim lived in the same home, her attorneys say.
Her public defender, Marci Johnson, sought a new bail hearing to inform the court that Easley and the victim did not in fact live together, alleviating that concern. Johnson argued for Easley's release as the caretaker of six children, and noted Easley had no prior convictions and had not failed to appear in court before.
Tanner, a judge since 2010 who was a juvenile master for six years before that, told the attorney that those weren't factors for her to consider.
"I set a bail based upon the nature of the charges. I don't set it upon the nature of the defendant," Tanner said, according to a transcript.
Makar and Shareef argue in court papers that not conducting an "individualized assessment" amounts to a rigid "bail schedule" which is not allowed under Maryland legal rules.
"Reliance on a bail schedule results in faulty bail determinations that lead to the erroneous deprivation of liberty for individuals who have not been convicted of a crime," they said. "While the nature of the offense is one of many factors that a judicial officer can consider," they wrote, the court "ignored other important factors."
Frosh in his opinion said current Maryland rules specify that judges and court commissioners use the "least onerous" means to ensure that defendants show up for trial and avoid committing new offenses before they're due in court.
"Ignoring one's financial means and setting pretrial release conditions based on assets alone creates a criminal justice system that discriminates against those less wealthy," Makar and Shareef wrote.