Duncan’s legacy

No Kootenai County judge wants to be the next Thomas Schroeder.

In Minnesota’s 7th Judicial District, Judge Schroeder is feared by defendants and their criminal attorneys. The judge is regarded as so tough on crime that defense attorneys asked that he be removed from their cases 98 times in the 12 months after July 1, 2004 – the most among the district’s 20 judges. Yet, the nation in general and Kootenai County in particular consider him soft on crime.

Schroeder will be remembered as the judge who allowed convicted child molester Joseph Edward Duncan to go free by setting bail in an unrelated molestation case at only $15,000. After Duncan posted the bail, of course, he slaughtered Mark McKenzie, Brenda Groene and Brenda’s son, Slade, at their Wolf Lodge Bay home and allegedly kidnapped and abused siblings Dylan and Shasta Groene before killing Dylan, too.

Now, defense attorneys Tim Gresback and Jim Siebe claim that Kootenai County judges are setting bail so high because of the “Duncan effect” that clients are in effect being held without bond. The two attorneys, who represent defendants throughout the state, say Idaho’s bail rates are highest in Kootenai County.

It’s hard to blame local judges for being affected by the Duncan murder case. Everyone around here was. Many citizens would applaud them for being extra careful in setting bail, especially in cases involving suspected child molesters and flight risks. The recent return of Whitman County fugitive Frederick Russell after extradition from Ireland underscores the risks a judge takes when he sets bail in a major felony case. Two of the many factors that a judge should consider in setting bail, however, are the U.S. Constitution and the guiding principle of the legal system: a defendant is innocent until proved guilty.

Excessive bail is prohibited by the Eighth Amendment. The purpose of bail, of course, is to provide incentive for the defendant to appear for court hearings and trial. Judges consider several other factors before setting the amount of bail: the defendants’ work histories, relationships, characters, prior criminal records, ties to the community, and the nature of charges against them. Despite denials, judges are affected by politics, too. They’re human. They don’t want to be second-guessed publicly for setting bail too low in a high-profile case.

Defendants also are humans – often with jobs and families. They’re more likely to lose their jobs and destroy personal relationships if they’re stuck in jail unable to raise bonds. Moscow, Idaho, lawyer Gresback claims they’re also more likely to confess to a crime they didn’t commit to resolve their case. In a Spokesman-Review story, staff writer Taryn Brodwater reported that a staggering 70 percent of Kootenai County inmates are awaiting trial, not yet convicted of any crime.

Beginning next year, the county will help judges screen inmates for posting bail under a new program funded by a $162,000 Idaho State Police grant. Minnesota Judge Schroeder might have set bail much higher if he’d known that Duncan was a dangerous level 3 sex offender. Unfortunately, no program or judicial scrutiny will catch every potential time bomb. As long as judges are human, the potential to free the next Joseph Duncan exists.