Violent pasts, serious charges — but out on bond

Luke Skywalker · Mar 6, 2016

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Closed bars(Photo: fotokon, Getty Images/iStockphoto)

When a man with paranoid schizophrenia showed up at the Ambassador Bridge with a loaded gun in his shoe*and claimed he**sometimes hears* voices telling him to hurt people,*an arrest and criminal charges quickly followed.
Prosecutors urged a federal judge in Detroit to lock him up until his trial.
But the judge set him free on bond, even after conceding*the defendant had*“one of the longest prior (criminal) records I’ve ever seen."*The man had cancer, so the judge*sent him to live with his mom in Pittsburgh in January*to make sure he gets proper medical care pending the outcome of his gun case.
Eyebrows went up in the courtroom. Observers shook their heads. Prosecutors appealed to a judge across the hall*but lost.
This is what prosecutors often face*in the Eastern District of Michigan, which prides itself as having*one of the highest bond release rates in the country, setting about *two-thirds*of criminal defendants free on bond annually.*Over the last decade, the district's release rate*has ranged between 60% and 79%. Comparatively, less than half of defendants nationwide get bond, with*last year's national rate dipping about*31%.
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The region's judges — and many in the law enforcement community —*consider this a bragging point, noting the district also has*one of the highest bond success rates: About*90%*of those released on bond return to court and stay out of trouble,*compared with the national average*rate of*72%.
For prosecutors and victims rights advocates, however, the release*numbers*are a source of growing frustration, particularly considering the Eastern District of Michigan covers three of the most violent cities in America —*Detroit, Flint and Saginaw*— and has one of the heaviest dockets for violent crime.*They argue*federal judges*are gambling*with the public's safety when they let certain repeat offenders accused of serious crimes out on bond.
"Part of the problem in America today is a general belief that we just need to give people more chances. But I think a lot of prosecutors are frustrated," said Joshua Marquis, a 19-year-member of the board of directors of the National District Attorneys Association, who believes too many*repeat offenders get the benefit of the doubt*when they should be locked up. "When you look at a person's rap sheet ...*the best predictor of future behavior is past behavior."
It's a philosophy that the U.S. Attorney's Office in Detroit plans to use more often,*particularly in light of its*escalated war on*violent gangs in Detroit.

Buy PhotoBarbara McQuade*(Photo: Romain Blanquart Detroit Free Press)

"While reasonable minds can disagree about a legal decision, we are sometimes frustrated by decisions to grant bond to dangerous defendants whose release may cause witnesses to feel intimidated, contributing to the no-snitch culture," U.S. Attorney Barbara McQuade told the Free Press. "In light of our recent focus on more dangerous offenders, such as violent gang*leaders, we expect to seek detention more frequently.
"We have a duty to protect not just the public at large, but also the victims and witnesses in a particular case."
[h=3]'A good thing'[/h]Chief U.S. District Judge Denise Page Hood said she understands that prosecutors often challenge judges' decisions*"and*they should." But she believes the high release rate "is a good thing" because it lets defendants keep their jobs and family ties*and remain*a productive part of society pending trial.

Denise Page Hood*(Photo: U.S. District Court)

"I don't feel that the number of people getting pretrial release is just judges exercising their discretion willy-nilly,"*Hood said, stressing the presumption of innocence carries great weight with the federal bench. "These are people*accused*of crimes. They have not yet been convicted."
"Other districts look at us and*say, 'How do they do that? They have a high release rate and a high return rate.' We're a role model."
Prosecutors and victims rights advocates aren't convinced. Over the last six months, federal judges let out several defendants who prosecutors believe are too dangerous and/or flight risks, including*an accused*high-level heroin dealer with eight prior arrests and five*criminal convictions, a drug fugitive who had been on the run for 15 years,*an*accused child pornographer who allegedly took*nude photos of young boys at camp*and posted them on a Russian website and*a*mentally ill drug user with multiple convictions.
In granting bond,*judges have concluded*that there are conditions that can be set to ensure that a*defendant won't*flee or hurt anybody, including*tether use, curfews and family supervision. It's*the cheaper alternative to detention.*According to the Administrative Office of U.S. Courts,*locking someone up in jail pending trial costs roughly $27,800,*compared with*the $3,200 it costs to supervise them while they're out on bond.
[h=3]'Never embarrass you'[/h]Standing before a veteran federal judge with a reputation for giving people second chances,*Damon Burnett, an accused heroin dealer*with five prior*criminal convictions, promised he wouldn't mess up if released on bond.
"You know, if I release you and you screw up who is going to get the blame? ... I'm going to get the blame. I'm the one that is going to be embarrassed," U.S. District Judge Avern Cohn told Burnett during an October hearing.
The defendant responded: "I would never embarrass you."
Cohn*granted bond. Prosecutors appealed.
"Damon Burnett is a high-level drug trafficker with the*means to flee to avoid a potential lifetime in prison," federal prosecutors argued in court documents. "He is a clear danger*to the community."
Prosecutors*have sought intervention three times from a federal appeals court, arguing:

Burnett,*who is not allowed to possess guns, was caught with*11 firearms*in his house, including*six loaded handguns that were*stuffed in shoes and*three semiautomatic rifles.*FBI agents also found "wanted" posters for snitches hidden under his mattress, heroin,*crack cocaine,*a kilogram press*and*masking agents to throw off drug-sniffing dogs at two homes tied to Burnett.*

FBI agents also found “wanted” posters for snitches hidden under Burnett’s mattress, heroin, crack cocaine, a kilogram press and masking agents to throw off drug-sniffing dogs at two homes tied to him.*(Photo: U.S. Sixth Circuit Court of Appeals)

"Burnett is no run-of-the-mill trafficker. ...*Burnett distributed*heroin as part of a large organized drug organization. Plus, Burnett had*access to an arsenal of weapons in his home and a history of continued*criminal activity while on release from other charges," prosecutors argued.*"It is doubtful that his mother or aunt —*both of whom lived there at the time of the search —*will ensure now that he does not commit another (crime)."

“Damon Burnett is a high-level drug trafficker with the means to flee to avoid a potential lifetime in prison,” federal prosecutors argued in court documents. Burnett, who is not allowed to possess guns, was caught with 11 firearms in his house, including three semiautomatic rifles.*(Photo: U.S. Sixth Circuit Court of Appeals)

The U.S. 6th Circuit Court of Appeals sent the matter back to Cohn for further review.
Cohn continued bond,*concluding*that there's no proof that Burnett ever used any of the guns that were found in his home in an illegal manner*and that there is no history of violence in his criminal record.

Evidence seized in a major drug case involving Damon Burnett included several handguns that were found tucked in shoes. Burnett, accused of being a heroin dealer, promised he wouldn’t mess up if released on bond. He was released against the wishes of prosecutors.*(Photo: U.S. Sixth Circuit Court of Appeals)

In a Feb. 16 decision, Cohn wrote: "The government has not shown by clear and convincing evidence that defendant on release under the circumstances here stated is a danger to the community or a flight risk."
On Feb. 29, prosecutors filed their third appeal. Burnett remains free on bond.
[h=3]'I'm giving you a break'[/h]Asking a judge to lock up a man with cancer wasn't exactly a high point for*Assistant U.S. Attorney Andrew Yahkind.
But the federal prosecutor said he had no choice given what the defendant had done: He*allegedly tried to cross into Canada with a loaded gun in his shoe*and told border officials that he has heard voices telling him to hurt people.
"I get no joy in standing in this courtroom arguing*for the detention of a man with lymphoma. But ... I don't think we have a choice," *Yahkind*argued during a tense Jan.*29*detention hearing.
Yahkind cited the defendant's lengthy criminal history, which included multiple drug and DUI convictions, a cruelty to animal conviction, a weapons conviction*and numerous arrests.
"When we look at that man's criminal history, it paints the portrait of an individual who has little respect*for the criminal justice system," Yahkind*argued.
The case involves Duwane*Hayes Jr., 32, of Pittsburgh, who was arrested on Jan. 23 after he and two family members tried to cross into Canada on the Ambassador Bridge. Hayes*was denied entry because of his criminal history and lack of identification — he had no passport.*At a secondary inspection, a drug-sniffing dog detected marijuana on Hayes, who was asked to remove his boots. That's when a*.22-caliber revolver fell out — loaded with six rounds —*triggering his arrest.
According to courtroom testimony, Hayes was*diagnosed with schizophrenia in 2005*but has*self-medicated with marijuana.*He currently*has Stage 2 lymphoma,*a slow-growing cancer,*and has been receiving*radiation and chemotherapy three times a week.
"I*am skeptical that he would get adequate treatment at one of the local county jails; this is a potentially fatal disease," said*Hayes' court-appointed lawyer, Loren Khogali, who argued for bond. "All of his assaults and convictions occurred when he was quite young — a decade ago."
Khogali*also cited the defendant's*family ties, noting he has lived with his mom in Pittsburgh for the last 10 years and has two children with a long-term girlfriend.
Magistrate Judge R. Steven Whalen*conceded that this was "a difficult case."
"This is a terrible record, a terrible criminal record," Whalen*said in addressing the defendant.*"You've got a lot of problems. One of the problems: You use drugs that aren't prescribed; you don't use drugs that you are prescribed. And you drink and you drive."
But in the end, Whalen released him on bond*on the conditions that he*live with his mom in Pittsburgh, follow a curfew, get mental health treatment and comply with electronic monitoring.*No guns. No travel.
"I want to stress —*you need to comply," Whalen*told the defendant. "I'm giving you a break. I want you to get the treatment that you need."
Prosecutors appealed*to*U.S. District Judge Arthur Tarnow, who upheld Whalen's decision.
[h=3]*15 years on the run[/h]More than a decade ago, in a South Carolina courtroom,*Elizabeth Vazquez-Gonzalez pleaded guilty to drug charges.*But she fled before*sentencing, triggering a years-long search.
After 15*years on the run, living in Mexico for three years and then moving to Michigan,*the woman was arrested in Dearborn Heights in October for a traffic violation.*She wound up in federal court, where a federal prosecutor urged a judge to lock her up pending extradition to South Carolina.
"Your*honor, Miss Vazquez-Gonzalez is a fugitive from justice … She was charged with a fairly*serious offense … and she fled," Assistant U.S. Attorney John Neal argued in pleading*for detention. "I think in this circumstance, the best indicator of future behavior is past behavior ... (she's) been a fugitive for 15 years."
Defense attorney Andrew Wise disagreed,*arguing conditions could be set to ensure his client wouldn't flee.*He noted she has strong family and business ties to*metro Detroit — two minor children, a grown daughter and a landscaping business — and "realizes that she has to face this matter."
Magistrate Judge Anthony Patti admitted*that he was troubled*by the fact that the woman never turned herself in. But he concluded that she was a mother who loved her children, wouldn't risk abandoning them by fleeing*and that conditions could be set to make sure that didn't happen.
"She has essentially been on the lam for over 10 years," Patti said in court. "On the other hand, she does now have strong roots and ties to this community.*“
So he granted her bond. He*released her to the custody of her 23-year-old daughter, ordered her to wear a tether, abide by a curfew*and report to South Carolina's federal court.
The woman did as told. But when she arrived down South, she got a much colder reception.
Vazquez-Gonzalez*asked that she be allowed to remain on bond, citing her ties to her children in Michigan, including an autistic minor son who relies on her.
The South Carolina judge didn't budge.
"Although the court is very sympathetic to the defendant's family circumstances," the federal magistrate in South Carolina wrote, "the court finds that the defendant is a risk of flight. She has been a fugitive*since 2000.*She admits that she fled to Mexico ... then moved to Michigan ... It is therefore ordered that the defendant be detained without bond."
In December, Vazquez-Gonzalez was sentenced to two years*prison.
[h=3]'A*duty to the victims'[/h]When West Bloomfield camp counselor Matthew Kuppe appeared in court last summer on child pornography*charges —*accused of photographing nude boys in a locker room and posting the images on a Russian website —*prosecutors sought detention.

Matthew Kuppe*(Photo: West Bloomfield Police Dept.)

"I have a duty to the victims in this case," Assistant U.S. Attorney Sara Woodward said in court, arguing there was no condition that would guarantee Kuppe wouldn't harm anyone if freed on bond.
Judge Cohn disagreed and released*Kuppe to the custody of his parents.
The parents of the alleged victims cried foul, claiming the judge sympathized more with a child porn suspect than their kids and “diminished the profoundness of his crimes.”
“It’s sad to believe that an esteemed judge could draw this disturbing conclusion*and sympathize with the defendant and his family … inconsiderate of the turmoil of the victims in this case and their families,” the parents argued in a*statement.
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Despite all the hype and controversy surrounding the case,*Cohn concluded that Kuppe*was*not dangerous and deserved the presumption of innocence.
"The government has not established by clear and convincing evidence that he is a danger to the community,”*Cohn said from the bench, quoting his written order. "There is a presumption favoring pretrial release. Pretrial release is the norm, not the exception."
Cohn said that while Kuppe is facing "extremely serious" charges, they are not violent crimes, nor do they involve drugs — both of which are factors in deciding whether someone is*a danger to the community. He also said that the children photographed in this case "were not engaged with*other persons and ... did not know that they were being photographed."
He noted that Kuppe has no criminal record, completed a bachelor’s degree in three years and has strong*family ties.
Cohn also cited the opinions of two psychologists who concluded that "it is highly unlikely that Matthew David Kuppe would pose a danger to any person or the community should he be released pending trial."
And Cohn noted that*Kuppe has never faced pedophile charges in Oakland County, writing:*“This is of significance in light of speculation that defendant has committed a touching offense.”
Prosecutors argue that given the children's ages, "if he sexually abused them, they may not know ... This is really every parent's worst nightmare."
[h=3]'We're not infallible'[/h]On paper, prosecutors argued Eric Powell was*a large-scale drug trafficker with a lengthy criminal background and access to loads of cash**— and couldn’t be trusted not to flee.
Still, Powell was*released on bond. Magistrate Judge Mona Majzoub*placed him on house arrest and ordered him to wear a tether. Prosecutors didn't object until Powell fought*to have the tether removed.

Eric Powell*(Photo: U.S. Attorney's Office)

The tether stayed put. But Powell did not.
In 2014,*shortly before a federal jury delivered multiple guilty verdicts in one of the largest drug cases in metro Detroit history, Powell, his brother and a third codefendant disappeared, triggering a manhunt for three convicts in a case involving $21 million in laundered money and massive amounts of cocaine, heroin and marijuana.
Within a month, the U.S. Marshals captured all three men:*one in Atlanta, the other two in St. Louis. The Powell brothers got life sentences.
That same year, another criminal*defendant delivered a similar blow to another federal judge.
In January 2014, convicted child pornographer*Michael Mazel, 38,*cut his tether and fled the state in his dad's car, just three days before he was to be sentenced for downloading more than 400 images and videos of child pornography and asking preteen girls for sexual favors via e-mail.*Mazel, who had pleaded guilty to child pornography charges, had his bond continued*after his plea and was trusted to show for sentencing.
The Highland Township man was caught almost two months later in Casa Grande, Ariz., trying to sneak into Mexico with camping gear, loaded guns and survival equipment.*U.S. District Judge George Caram Steeh sentenced*Mazel to 17½ years in prison for his crime.
Perhaps the most controversial bond case in Detroit federal court in recent years is that of Dwayne Ballinger, a convicted killer who persuaded a federal judge in Detroit to release him on bond during an appeal, but then cut off his tether and fled the state in 2013.

Dwayne Ballinger*(Photo: Michigan Department of Corrections)

Ballinger was convicted in 2006 of fatally gunning down two men in Detroit on the Fourth of July because they crossed into his drug territory. He was sentenced to life in prison without parole, but persuaded U.S. District Judge Arthur Tarnow in 2012 to release him on bond, arguing his lawyer was ineffective at trial.
Ballinger was granted temporary bond while the case was being reviewed by the U.S. 6th Circuit Court of Appeals.
Michigan Attorney General Bill Schuette*fought numerous*times to keep*Ballinger*locked up,*arguing he was dangerous and plotting revenge on witnesses. Ballinger denied it. His lawyer vowed his client would stay clean. Tarnow released the defendant, noting: "I'm not a lie detector."
A*year later, after learning from the 6th Circuit that he would not be granted a new trial, Ballinger betrayed the judge. He*removed his*tether and fled.*He was arrested*a month later in Ohio.
"We're not infallible," conceded Judge Hood. "Judges make mistakes."
But, she stressed, "they're very conscientious."
"We all know the ramifications of someone being released who might pose a threat," Hood said.
[h=3]Presumed innocent[/h]Bill Swor, vice president of the American Board of Criminal Lawyers, said pretrial release should be the norm in federal court.
"Remember, someone who is accused of a crime is presumed innocent. And to detain someone ... to physically*restrain someone ... runs counter to that presumption of innocence," said Swor, a defense lawyer who has handled many high-profile cases in the Eastern District of Michigan.*"Our district takes that presumption quite seriously. I, for one, agree with it."
Swor*has seen the downside of detention,*when defendants get*locked up and end up acquitted.*For example, he*represented David Stone Sr., the lead defendant in the 2012*Hutaree militia trial, in which he and six others were accused of*plotting to*overthrow the*government with weapons of mass destruction. A federal judge ended up acquitting all of the defendants,*concluding the government failed to prove its case. Swor's client, however, spent more than two years in prison before that decision was made.

Buy PhotoDavid Stone, Sr.*(Photo: Patricia Beck Detroit Free Press)

That's mainly because Stone Sr.*was charged with a serious crime that carries a presumption of detention — that's where the burden is on the defendant to prove why they shouldn't be detained.*Under the Bail Reform Act, which sets the guidelines for bond,*there are several crimes for which detention is presumed.*They include:*terrorism cases;*drug crimes carrying a maximum penalty of 10 years or more; conspiracy to murder, kidnap*or maim persons in a foreign country;*slavery and human trafficking, and any offense*involving a minor victim or child pornography, excluding*possession.
Under federal law, however, federal prosecutors can seek detention for any defendant if they fear the person is a flight risk*or a threat to the community. They have to convince a judge that no conditions can reasonably assure the community's safety, or the appearance of the defendant,*if the defendant is released.*A detention hearing is held, during which judges weigh several factors,*including*the seriousness and nature of the crime, the defendant's criminal history, family ties, employment, any history of drug or alcohol abuse*and*the weight of the evidence against them.
A key player in this process is Pretrial Services, the agency that interviews the defendants after arrest,*researches their past, and makes a recommendation to the judge based on what they've learned. The judge has the final say.*If bond is granted,*Pretrial Services*is tasked with making home visits, helping*defendants get drug treatment or mental health treatment if it's ordered, and communicating with them and their family members.
Chief of Pretrial Services Alan Murray, whose office of 33 officers oversees about 1,000-plus defendants a year in the Eastern District, said in his 29 years of working in Detroit's federal court, he has rarely seen defendants cause problems while on bond.
"Out of 1,000 cases last year, I don't think we had more than 20 people not show up for a court date," said Murray, who considers the district's high-release rate "a model" for others. "This is not a perfect world situation ...*But it*does work. And it can work in places where you don't think it can work ... It's a model situation."
Murray said his office doesn't track how often it recommends detention, though*he admits it's not an easy issue to deal with.
"It’s not pleasant or easy to recommend detention for someone," Murray said. "These are allegations. They haven’t been convicted of anything."
Swor, meanwhile,*believes the federal judges in Detroit get it right the majority of the time, locking up the dangerous, while releasing most on bond.
"We do not have problems. We don't*have people being released and then running out and committing crimes. We don't*have people not showing up for court," Swor said. "It works."
Contact Tresa Baldas: [email protected].

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Violent pasts, serious charges — but out on bond

Luke Skywalker

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