Bail Policies Discriminate Against the Poor
The attorneys for Steven Avery have argued that policies that allow recording of inmate conversations discriminate against poor suspects unable to make bail. Suspects kept in jail are recorded, and their words scrutinized for phrases than may be considered incriminating.
There is merit to this claim. When bail is set per schedule, there is an amount that suspects can pay if they have the resources or not pay for lack of resources as is more often the case. A disproportionate number of poor are kept in jail and denied free access to community resources. To make things worse, suspects are charged fees for staying in jail. This is a classic case of pile on played by legislators, prosecutors, and judges.*
In felony cases, there is a somewhat greater variation in bail amounts than misdemeanors, but my observation is that there is still much uniformity. The $750,000.00 bail placed on Avery, appears to be a standard in murder cases in Wisconsin although Dassey’s bail is $250,000.00.
Ken Kratz, Special Prosecutor, argues that a rich person would have a much higher bail simply because the flight risk is higher. Yet, the argument for the wealthy is their greater community and family ties dictate a lower bond.
Avery’s history would indicate a lower flight risk although he was indigent at the time of his arrest. Before the case that lead to his false imprisonment, he was home on bail after conviction and awaiting sentencing for his January 1985 assault and firearm conviction. He remained working and remained a family man.
Kratz also argues that Avery knew he was being recorded and that trumps any claim of discrimination. But, this argument has flaws as well.
First, there is the likelihood of creative editing. Former Winnebago County Prosecutor Joe Paulus is a shining example of this type of misconduct. The prosecutor in the trial of Michael Skakel for the murder of Martha Moxley played a very heavily edited recording of Skakel against a backdrop the gruesome photos of the victim. In this case, words were removed and rearranged like cutting words from a newspaper to make a ransom note. The longer a suspect is recorded, the greater the ability to cut and paste their words.
The second problem is that family members (besides the accused) can easily make statements that can be turned into incriminations. Innocuous behaviors and statements turn into evidence because the prosecutors and investigators often attach meanings to words that were different from the intent of the speaker.
The prosecution also argued that Avery could have used his settlement with Manitowoc County as partial bail. This argument is plainly dishonest. The settlement was accelerated by the need for an attorney who would vigorously defend. Kratz was constantly arguing for an increased bail amount and fought the used of Avery properties as bail surety. The amount of the settlement was not even a third of the bail amount and with nothing to supplement the settlement, there was no way Avery would have been released. Any prudent attorney would be aware of this.
There is a valid reason for making these kinds of recordings. Some people held in jails are dangerous and manipulative. The idea that a crime can be prevented is a compelling argument for the recording of jail house conversations. This requires that ALL recordings are reviewed in a timely fashion.
So one issue here is whether these recordings can be used as evidence since there is no level playing field between well to do and poor. And how can the recordings be prevented from being used in a deceptive way. After all, jailers and prosecutors have total access.
* Women kept indentured because jail assessments outstripped her income
by Brian McCorkle
in category Criminal Justice,Steven Avery
