Few easy decisions for Iowa judges

Judges make serious, difficult decisions every day that affect people's lives: a defendant's freedom pending trial, a convicted offender's prison time, the legal strategies used by attorneys, and justice for the victims.

Sixth Judicial District Senior Judge David Remley said all decisions, from setting a bond to sentencing, are important and complicated because the law has both rules and exceptions, and judges must consider many factors including public safety, nature and circumstance of the crime and the offender's criminal history.

"We can't sit down with a cookie cutter for all cases," Remley said. "Not all cases are alike."

Chief Judge Patrick Grady said judges are restricted or limited by the law, and when they have some discretion, it comes down to a judgment call. And many of those decisions will be unpopular, he said.

There have been some of those unpopular judicial decisions made recently that have spurred some discussion in the community.

• Johnathan Mitchell, 33, accused of stabbing and killing cab driver Cathy Stickley, 54, of Cedar Rapids, was free on a previous bond that had been lowered for an assault crime.
• A few weeks ago, a judge lowered bond from $1 million cash only to $500,000 cash or surety for Zyriah Schlitter, 24, of Cedar Rapids, and Amy Parmer, 27, of Hiawatha, accused of killing 17-month-old Kamryn Schlitter, who died of head trauma in 2010. Last Friday, Parmer had a bond review and another judge again lowered her bond, to $100, 000, which she paid. She is free pending trial.
• Daniel Nicholson, 33, accused of robbing four banks within a year, made his $100,000 bond on the same day as a search warrant revealed cash and clothing found in his home which police believe link him to the robberies.

Remley and Grady wouldn't talk about these specific cases because they said it's unethical, but they did agreed to explain in general terms how decisions are made and what they have to consider.

Remley said when setting bonds, judges have to keep in mind that a defendant is innocent until proven guilty and has a constitutional right to bail.

"There are two main factors to assess - reasonably assure court appearance for future proceedings and protection for the people involved and the community," Remley said.

A judge must also consider the nature of the crime and circumstances, prior criminal record, past history of court appearances, family ties and employment and length of residence.

In the Mitchell case, the defense argued last October the $25,000 bond was too excessive for a willful injury charge, a class C felony. A $25,000 bond is usually set for more serious class B felonies, according to the bond schedule in the Iowa code.

District Associate Judge Russell Keast lowered Mitchell's bond to $10,000, which Mitchell paid.

In the Kamryn Schlitter case, the defense attorneys for Zyriah Schlitter and Parmer also  argued the bond was excessive because there was no flight risk, the investigation had been pending more than a year and both remained in the area and have family ties. Defense also pointed out Schlitter had no prior record and Parmer had a minor record.

District Associate Judge Jane Spande agreed with the attorneys and reduced the bonds.

In the Nicholson case, Keast went above the $10,000 bond guideline for each count of second-degree robbery, a Class C felony, and set bond at $25,000 for each charge, which is usually bond for Class B felonies, according to the bond schedule.

After the ruling, Grady said the bond schedule is only advisory and judges have the discretion to increase or decrease based on circumstances and facts.

Remley said judges have to make decisions based on the information they have at the time. That becomes more difficult when the defendant is from out of state. The Department of Correctional Services, who makes a recommendation on bail, may have little history from out of state because facts aren't easily verified.

The department and a judge also took some criticism in the Mitchell case because he was set to plead guilty to the assault charge a few days before Stickley's slaying, but because a pre-sentencing report was late and the defense attorney hadn't seen it, the judge granted a continuance and Mitchell remained free on bond.

A pre-sentencing report, prepared by the department, should be available for the attorneys three days or more before sentencing and if the report hasn't been seen by the attorneys then it wouldn't be uncommon for a judge to continue a case, Grady said.

Remley said the pre-sentencing reports help judges determine sentencing, if they have some discretion in the prison term, by giving them a detailed overview of the offender. The reports include criminal, employment, military, education and financial history, marital status, alcohol and drug abuse, health and mental health issues, information about family dynamics and also allows offenders to give their side of the story.

Grady said they also consider what the victim says in a oral or written victim impact statement and the attitude of the defendant.

"Defendants aren't always sorry, so that could hurt them, but I try to get a read of them when they do speak -- if they have remorse, if they take responsibility," Grady said.

Grady said judges have more flexibility in sentencing for misdemeanors, drunken driving and domestic abuse cases because the some of the penalties are usually days in jail and those can be altered. For felonies, it's prison or probation.

"There is a strong commitment to community corrections in this district, which allows us to consider better options (than prison)," Grady said. "We could say 'lock them all up,' as some say, but that is a cost. I think it's about $30,000 a year (to house an inmate). It might be easy and popular to lock people up but it's not always the right thing to do."