DETROIT LAKES, Minn. – Attorney Stuart Kitzmann made a point of dropping by his town’s courthouse early April 5 to get a look at the stranger accused of molesting two boys in a busy playground, in broad daylight on one of the busiest days of the year.
Kitzmann, who has four young sons of his own, said he was the only person in the courtroom gallery. He was surprised when bail for the registered sex offender was set at only $15,000. And he was sickened when he saw the tall, lanky man with the protruding Adam’s apple walk out of the courthouse moments after the hearing.
“He was walking down the sidewalk talking on his cell phone. I saw him throw his head back, laughing,” said Kitzmann, who spent the last 12 years as a public defender in this town of about 7,500 people. “I was freaked out by the whole thing. It just disturbed me. I wanted to get out of my car and tackle the guy.”
Joseph E. Duncan III, who had already spent more than half his life behind bars for predatory sexual behavior, had almost been snared again by the legal system. But after writing a personal check for $15,000, Duncan was still a free man. The Fargo, N.D., resident checked in with his probation officer twice, but then skipped town.
It might always be a mystery if a higher bail would have saved the lives of four Coeur d’Alene residents Duncan is suspected of killing, or protected a little girl Duncan is accused of kidnapping and assaulting six weeks after he walked out of the Detroit Lakes courthouse. But many fingers are pointing at the Becker County judge and prosecutor.
The Minnesota judge who set the bail, Thomas Schroeder, is not talking about how he determined the amount. Attempts to reach him last week at his office and lakeside home were unsuccessful. Clerks at the Becker County courthouse have directed questions about the judge’s decision to John Kostouros, spokesman for the Minnesota Court Information System.
Judicial ethics prevent Schroeder from commenting about a pending case, Kostouros explained to a Spokesman-Review reporter Friday. “The judge would love to talk to you, but clearly he’s not allowed.”
A week ago today, one day after Duncan had been arrested in Coeur d’Alene, a television news crew from St. Paul, Minn., knocked on Schroeder’s door and asked him to discuss the bail amount. Schroeder told the reporter from KSTP-TV that he was given only limited information about Duncan’s history. “I don’t recall what I recall. I don’t exactly recall setting the bail,” Schroeder told KSTP-TV, while standing on his front doorstep.
Kostouros said Schroeder’s memory was hazy because the television crew had awakened him from an afternoon nap. Critics of the judge should also consider the role of the county prosecutor, Kostouros said. “It’s the prosecutor’s role to make a case. … The record suggests the prosecutor treated this with a relatively low level” of concern.
Nonetheless, Schroeder “regrets” the low bail, Kostouros said. “This is every judge’s worst nightmare.”
Becker County Assistant Prosecutor Michael Fritz originally requested $25,000 bail, but even this is low for a man with a history of violent sexual offenses against children, admitted Fritz’s boss, County Attorney Joe Evans, in an interview at his Detroit Lakes office Thursday.
“In retrospect, there’s no way to defend it,” Evans said.
Fritz was taking time off last week. Evans was handling the considerable volume of phone calls from reporters. He explained that several factors were considered by Fritz before the bail request was made. Duncan’s most recent, known criminal activity was 25 years old, and that offense occurred when Duncan was a juvenile, Evans said. Duncan was employed in nearby Fargo and was just weeks away from earning a college degree. During his five years in Fargo, authorities say, Duncan showed every indication of being an ex-con who was trying to repair his life.
Minnesota judges are not allowed to hold a suspect without bail, but even if the bail was $150,000 Duncan would have likely been able to pay the 10 percent required to secure a bail bond, Evans said. “He had $15,000 available. How much more would he have available?”
Evans strongly disagreed with critics, including television commentator Geraldo Rivera, who have suggested Duncan jumped bail because he was facing at least 25 years in prison. Minnesota sentencing guidelines, which are considered in every case, would have likely put Duncan behind bars for 13 months for the two sexual assault charges, Evans said. If Duncan had been facing a lengthy prison sentence, the bail request would have been higher, Evans said.
The sentencing guidelines give judges a highly detailed formula for probation and prison terms, Evans said. “Is that right? Are those numbers good numbers?” Evans asked. “That’s another issue.”
After nearly a half hour of defending the $25,000 bail request made by Fritz, Evans clasped his hands and leaned forward over his desk.
“We’re thinking like ordinary people would. We’re not dealing with a mind that’s ordinary,” he said. “This is a horrible, horrible situation. This is a terrible tragedy. There’s no other way to say it.”
Kitzmann, the private practice attorney who attended the bail hearing, said the bail amount was “unusually low,” but he also defended the prosecutor’s office. Evans has a “stellar” reputation and the assistant who prosecuted Duncan, Fritz, has an even tougher reputation within the county’s tight-knit legal community, Kitzmann said.
Fritz’s German surname and his penchant for strict punishments even earned him something of a nickname. “They used to call him Brownshirt,” Kitzmann said. “Our county attorney’s office has never been known to be lenient, in particular with sex crimes. That’s why everybody is so floored.”
Duncan might have fooled much of the town’s legal community, but his presence raised the suspicion of at least one mother. Kris Manning said her niece and her niece’s children were at the Detroit Lakes playground that July morning. Manning’s niece spotted a tall, skinny man with a video camera at the edge of the playground watching children. “She just got weirded out by him,” Manning said Thursday, as her own children played on a nearby slide at the playground. “Jesus was looking over them that day.”
As Manning told the story, she never once took her gaze from her own children.
“This whole thing has us talking more to our kids about strangers and keeping a better eye on them,” she said.