This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The Utah Association of Criminal Defense Lawyers (UACDL), along with the rest of the criminal justice system, was saddened to learn of the death of Officer Doug Barney and the injuries to Officer Jon Richey.
UACDL expresses its deepest condolences to Officer Barney's family and its continued gratitude to the state's law-enforcement officers. But this gratitude extends further — to federal Magistrate Judge Evelyn Furse, the federal prosecutor and the federal defense attorney involved in the release of Cory Lee Henderson.
After the tragic shootings last week, suggestions were made through media channels that the parties involved in the pretrial release of Henderson, and specifically Furse, had somehow erred. The shooting death of Barney was a profound tragedy. It is all too easy for both the public and the media, when faced with such tragedies, to search for someone to blame.
But the suggestion that Furse or the federal prosecutor erred ignores their obligations under the law and the Constitution and the careful consideration of public safety given to each and every release decision. It also implies the parties should be capable of the impossible: unerringly predicting a person's future choices.
One of the most basic and critical tenets of America's criminal justice system is the presumption of innocence. No person is guilty of a crime simply because she has been arrested or charged with it. A person is only guilty if found to be guilty beyond a reasonable doubt after a jury's full review of the government's evidence. This constitutional right protects each and every one of us.
This right also requires judges to release criminal defendants who have not yet been convicted unless there are specific grounds, established by evidence, for detaining them. The default position under the federal Bail Reform Act is to release accused persons — as it should be. A court's very ability to detain someone who has not yet been convicted raises critical constitutional questions.
Any time the right to liberty is implicated — the right of a charged but unconvicted person to remain in society, working, obtaining rehabilitative treatment, and continuing to support his or her family — courts must carefully follow the legal and constitutional protections in place. The transcript of Henderson's hearing shows Furse did exactly that, making a carefully considered decision consistent with the law and the Constitution, while still accounting for concerns of public protection.
It would be a profound mistake to accept the premise that because something went terribly wrong, it is anyone's fault other than the wrongdoer. Blindly pointing fingers at a judge or a prosecutor or a defense attorney — parties working in tandem to protect each defendant's rights (and, thereby, everybody's rights) — will never help.
Blaming will never undo the tragic events of last week. And it will never (and should never) change the presumption of innocence or the presumption of release.
In addition to these constitutional requirements, releasing most accused persons pretrial is simply good public policy. Just last week, Utah Supreme Court Chief Justice Matthew Durrant in his State of the Judiciary address before the Utah Legislature promoted the many societal benefits of releasing arrested persons before trial.
Specifically, extensive research has shown that the vast majority of arrested persons will appear in court and not re-offend while on pretrial release. More importantly, exposing people to criminal elements in jails encourages them to commit additional crimes and results in more criminal conduct.
Further, taxpayers would save millions of dollars in reduced incarceration costs if more people were released pending trial rather than being locked up. Pretrial release also benefits society as a whole because people maintain employment, families remain intact, and government assistance is not needed to aid family members left behind. In sum, presuming pretrial release is a win-win situation for all.
The truth is that each and every player in the criminal justice system — the judge more than anyone — work hard every day to follow the law, honor constitutional protections, and make decisions in good faith.
Not only does UACDL thank all law-enforcement officers for their service, we thank judges, prosecutors, and defense attorneys for theirs.
Randall Richards is president of the Utah Association of Criminal Defense Lawyers.