Mecklenburg County judge says fixing bail bonds is up to legislature

We spoke with Chief District Court Judge Elizabeth Trosch Tuesday morning just hours after James’ initial bond was revoked. She couldn’t comment on James’ case, but she did make it clear what a bond is for.

“Bond under the Constitution in North Carolina is not punishment,” Trosch said. “It’s not about accountability. It’s about I need to see you in court, and you need to stick around until this case is over.”

But sometimes that doesn’t happen. Magistrates and judges have the discretion to set bond for any charge. We asked if that discretion gives too much power in the bond process.

“I don’t think that magistrates and judges have too much power in the bond process,” Trosch said. “I just don’t think we have all the tools that we need.”

That can include the full scope of the crime that was allegedly committed. Trosch said that information “is not always immediately available.”

Some in law enforcement have been outspoken about the bond process. Charlotte-Mecklenburg Police Chief Johnny Jennings has complained that judicial officials have too much discretion. Jennings pointed to the case of Toddrick McFadden, who allegedly shot a CMPD officer last year in NoDa -- he was given a $170,000 bond and only had to pay 10% to get out of jail.

[ SEE MORE: Man facing more charges in connection with NoDa shooting that left officer hurt ]

“Now I may be missing something, but your lives are worth a lot more than $17,000 to let someone back out on the streets,” Jennings said at the time.

Trosch said she thinks Jennings “is concerned about the fact that we don’t have great tools to use preventive detention.”

“I think there are problems with the statute,” Trosch said. “I think that the conversation that we’re having in this community about low bonds is really a conversation about Aren’t there some people who should not be released pending trial because of their conduct, because they demonstrated themselves to create a risk of harm and our community. And I agree that there are some people who meet those criteria. But the statute doesn’t empower me to do anything more than set a bond.”

Trosch says she, Jennings, and Mecklenburg County District Attorney Spencer Merriweather are talking with each other and with state lawmakers to see what can be done to change the law regarding the bail process. Trosch says all three of them are on the same page, but it’s something that will take time to fix.

In response to Channel 9′s interview with Judge Trosch, the president of the Charlotte-Mecklenburg Fraternal Order of Police, Daniel Redford, issued a lengthy statement claiming that Trosch was “casting blame on someone else.”

Redford also called on Trosch to resign from her position on Thursday. It’s the first time the FOP has called on a judge to resign. You can see the full statement below our Q&A with Judge Trosch.

See the interview with Channel 9′s Hunter Sáenz in this video, or you can read the judge’s answers below.

Sáenz: Take us through the process of what happens when somebody gets arrested goes before magistrate - what is the process of setting a bond here?

Judge Trosch: Under North Carolina law, once a person is arrested, the first place they go is to a magistrate, one to determine whether there is probable cause for the offenses alleged and second, to set conditions of release. In North Carolina, we have a presumption that everybody’s entitled to release. And it’s really a matter of what conditions will have to be met in order to be released. So starting with the least restrictive, there’s written promise to appear all the way from there to an unsecured bond to a secured bond. And a secured bond means you got to pay money, you have to secure the that that value that’s set by the judicial official in order to be released. So a magistrate at an initial appearance, which is conducted at the jail immediately after arrest is going to be looking at criminal history. Information provided by the officer about the offense, any specific allegations that are made against the defendant. And then they, during some hours with will receive a pre trial safety assessment and additional synthesized information about criminal history. And then determine what conditions of release to set using our local bail policy and conditions of release matrix. Generally speaking, like I said, people are entitled to conditions and reliefs ranging from promise me I’ll see you in court, too, you gotta pay some money, and have some skin in the game to make sure you come back to court.

Are there suggestions that the magistrates are supposed to follow or do they have discretion in this?

Magistrates are independent judicial officials who have discretion to follow the law of North Carolina and our local bail policy in the setting conditions of release.

The first day that court is in session, the defendant sees a judge for first appearance.

Sometimes the bonds will change - What is taken into consideration differently than at the magistrate level to change those bonds.

there are some things that are different about a first appearance than the initial appearance in front of the magistrate. First, we always have the public safety assessment and a report that synthesizes some key criminal history information. In addition to that, we have a prosecutor in the courtroom, and we have a defense attorney in the courtroom, and they’re able to provide additional information to the district court judge at first appearance to inform that judge’s decision making.

Now, oftentimes, we don’t have all the information we want, because it’s not available. Sometimes we want more information about specific involvement of a defendant in the offense. We might want more information even about prior crimes, to help determine how to apply the law. And that information is not always immediately available.

With the sole discretion of the judicial officials setting the bond, would you say that discretion given gives magistrates and judges a bit too much power in the bail bond process?

I don’t think that magistrates and judges have too much power in the bond process. I just don’t think we have all the tools that we need. When we’re operating under a statute that creates a presumption of release with or without conditions. We don’t really have the tools to effectuate detention for those people that we really believe should not be released because they -- their facts and circumstances that demonstrate -- they pose a real risk of committing acts of violence or causing harm in our community. We don’t have that tool available to us most of the time.

I want to also ask, I know [CMPD] Chief Jennings has really criticized some of the low bond set some of the bonds that have been set and then lowered once they go before a judge, and has called judges and magistrates out fairly numerous times for some alleged heinous crimes. We have Toddrick McFadden who shot at the officer, granted a $170,000 bond and chief Jennings came out and said, all he has to pay is $17,000 and he walks free. What do you make of these criticisms from our chief?

[ RELATED: CMPD chief decries low bond for suspect accused of shooting officer in NoDa ]

I think that Chief Jennings is concerned about the fact that we don’t have great tools to use preventive detention. And to your question earlier about discretion of judicial officials, we do have discretion. And while it would, I think, be clearly unconstitutional to intentionally set a bond for purposes of detaining a defendant, reasonable minds could disagree about what constitutes a really high bond, and what constitutes a low bond. And the circumstances of an individual defendant will differentiate between what constitutes a high bond and low bond. Some people, a $5,000 bond is a detention bond because they cannot make it. For some people, a $2 million bond is a release bond because they can access resources to purse that bond. I think the conversation we’re really trying to have is around whether there are some people who should be detained prior to trial prior to being found guilty, because there are facts and circumstances that demonstrate their risk to our community pending trial. I think that’s the conversation we’re really trying to have. And Chief Jennings and the district attorney, Mr. Merriweather and I think are very much on the same page, that we we believe that every person, every individual and every neighborhood, and Mecklenburg County deserve to experience the conditions of safety and well being. There’s a lot that goes into creating those conditions, and it’s, you know, responding to the criminal acts of individuals doesn’t alone, create those conditions. That the rise in violence we’re seeing, I think, is demonstrably caused by a deterioration of the social fabric that has held people connected to emotional supports, economic supports and opportunities to thrive. And we have to have a serious investment and it as a community as as a city and creating those conditions of safety and wellbeing for everyone. I think that Chief Jennings and Mr. Meriwether and I are on the same page that there are some people that if we had the tools, we would want to be able to have to use those tools to detain pretrial. I think that unfortunately, we can’t do that locally. That’s not a Mecklenburg County fix. That is something that has to happen in Raleigh with the legislature. We have to follow a law that says set conditions of release.

You say you’re on the same page that three of you, would you then say that there are problems with our bond setting process?

I think there are problems with the statute. I think that the conversation that we’re having in this community about low bonds is really a conversation about: aren’t there some people who should not be released pending trial because of their conduct, because they demonstrated themselves to create a risk of harm and our community? And I agree that there are some people who meet those criteria. But the statute doesn’t empower me to do anything more than set a bond.

So what I hear you saying is the magistrates and judges shouldn’t be to blame for this low bond issue. You guys are following the state Law

Correct.

After the criticisms, of course, you’re sitting down talking with them about solutions. What are those conversations like with people in Raleigh with your other officials here in the DHS office and the chief of police? You all are on the same page? What are the solutions that you would like to see them? What are those tools?

I know that Chief Jennings has been working with the North Carolina Association of Chiefs of Police to advance some efforts at some legislative change. I think that New Jersey is a really great example of a state that moved from a statutory framework that looked like ours, presumption of release with the most restrictive release conditions being secured money bond, to a release or detained system. New Jersey created a narrow exception for detention, for the kinds of conduct and histories of violent conduct that I think we all would agree, justify consideration of detention, right? And then create some other due process protections to ensure that that doesn’t lead to incarceration for three years, pending a determination of guilt, or even a year prior to a determination of guilt, which I think also advances the interests of victims -- victims want a resolution. They don’t want people’s cases spinning in circles in the court system for years awaiting a resolution. So I think what New Jersey did and creating an expedited discovery and trial process for people who are being detained for violent offenses and violent criminal histories, and creating the tool of detention in those situations is a really good example of an effective framework.

To have mandatory limits for certain crimes to set bond, you would probably be opposed to that method, then?

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I think that it would be very difficult to craft a bail schedule that takes into account all of the factors that are relevant, right? So for example, the bail schedule that existed in Mecklenburg County previously, which was not prescriptive but a guide, would say if someone is charged with possession of firearm by a felon, the starting bond is at $25,000 secured and ranges up to 50,000, for example. And then for assault on a female, which is a misdemeanor offense, the starting bond is $2,500, to cure it up to 5,000. But in my experience in 14 years as a district court judge, that assault on a female in the context of an intimate partner relationship could be the more lethal situation with the highest risk for reoffending and death than the person who is charged with possession of firearm by a felon. Because in the context of the intimate partner relationship, assault on a female may be one incident in a constellation of behaviors that demonstrate that this person is very likely to kill their intimate partner. So $2,500 - does that make this victim feel safe? No. Does it make me feel good about this person being out in the community and returning home? Absolutely not. So I think bail schedules are as irrational as sort of this individual discretion results in a wide range of bail setting practices.

One thing happened just Tuesday morning, Willie James was a man who allegedly cut off his ankle monitor and they were searching for him for quite a number of days. They arrested him as part of the previous bond order. He was supposed to get no bond once he was caught -- a magistrate last night set it at $250,000 before a judge today. Reset to no bond. What are the conversations like should that have happened first off?

I can’t comment on a pending case and I don’t have all the information. So I can’t answer the question whether that should have happened.

What are your conversations like with the magistrates then that I believe you supervise according to the NC Courts website? What are those conversations like when they are under the scrutiny of doing what allegedly took place today and in the past of these lower bonds or miscommunications?

The chief District Court Judge supervises magistrates, they retain their independent discretion as judicial officials to make decisions. So I’m not the Court of Appeals for magistrates’ decisions. However, I do have a responsibility to ensure that they understand the statute that they understand the bail policy and that they’re following. So last year, I did some pretty intensive training and education with our magistrate around the law of pretrial release in North Carolina around our local policy, provided we’ve worked through some different scenarios and examples. I’ve created some tools to really try to help structure their thinking and decision-making around setting conditions every release, worked with pretrial services to get them the pre the public safety assessment and the CJ leads report during most hours, not the wee morning hours. And then when issues arise or complaints are made, I do follow up with magistrates, to discuss any performance issues, and to provide additional coaching and training on the law and the policy.

So in other words, there are some times in which not necessarily they’ve got it wrong, because they have that discretion. But where you understand the criticism and you intervene.

Yes. And if I see that they have not followed the statute or followed the local policy, then I have an opportunity to address that and correct it.

Judges and magistrates have really been under fire with this. It is my understanding from what we just talked about that you understand the frustration. When these cases happen, and an alleged low bond is set, you get that?

I understand the frustration. I think we’re confusing. What the problem is, when I hear that phrase, low bond, what I perceive is underneath that is one, this person did something really bad, and should be punished and held accountable, and their bond should reflect that. And then the second thing that I think is underneath, that’s a low bond, what’s going on here is this person should be detained. And one: bond under the Constitution in North Carolina is not punishment, it’s not about accountability. It’s about I need to see you in court, and you need to stick around until this case is over. And then two, we don’t have detention. So I think we do have an opportunity to strengthen and improve the framework, the statutory framework. And I think we have an opportunity to increase the tools available to judicial officials in North Carolina to deal with people who really, frankly, scare us.

The Fraternal Order of Police Responds

Daniel Redford, the president of the local fraternal order of police, issued the following statement on Thursday:

“On March 21, 2023, WSOC-TV Crime Reporter Hunter Sáenz sat down with Mecklenburg County Chief District Court Judge Elizabeth Trosch over concerns on how bonds are administered to violent, and often, repeat offenders. It is a disgrace to hear that Judge Elizabeth Trosch is blaming the legislature when the bail policy in each county is, in part, administered by Chief District Court Judges (her). Last updated in 2019, the “Bail Policy for Twenty-Sixth Judicial District” [Mecklenburg County, NC], states that “protecting victims, witnesses, and the community from threat, danger, and minimizing the unnecessary use of secure detention” is the purpose of this policy.

Our community is suffering from a significant spike in homicides, and violent crime is reported daily. Judge Elizabeth Trosch is not relying on the legislature to fix this problem – because it is a problem occurring only in counties and states that cater to criminals – and is a problem she helped create. Look around North Carolina and you will see a clear difference in how bonds are issued despite following the same rules the legislature currently allows.

Judge Elizabeth Trosch is doing what every failed leader does – casting blame on someone else.

The Charlotte-Mecklenburg Fraternal Order of Police has never opposed unsecured, low, or no bonds for minor, non-habitual offenses and believes them to be appropriate in many cases. Our issue is, and always has been, low and unsecured bonds for violent and heinous criminal offenders, especially those with a history of violence along with improper decisions made by magistrates.

For example, on June 1, 2022, a Mecklenburg County Magistrate erred when they issued a bond for Jacob Lawler, an 18-year-old student who made a threat of violence against students at Bradford Preparatory School days before graduation. The Magistrate had no legal authority to issue a bond since § 15a-534.7 states that bond conditions for this charge shall be set by a judge, not a magistrate. An emergency hearing was held to correct the magistrate’s mistake.

On March 19, 2022, Tyler Drew retrieved a rifle from a vehicle and shot it repeatedly in the direction of several nearby Charlotte-Mecklenburg Police Officers and many more innocent citizens. Luckily no one was injured and CMPD Officers heroically arrested him without firing a single shot. After his arrest, Drew was released from jail in less than twenty-four hours because his bond was set at only $67,000; despite him being a convicted felon, a charge that legally prohibits anyone from possessing a firearm at all.

On February 1, 2023, Demont Forte was released from jail after posting a $5,000 bond for assault by strangulation, felony stalking, assault on a female, assault with a deadly weapon, and assault on a government official. Forte was on pre-trial release at the time for having committed similar acts to the same female victim. Forte is a convicted habitual felon and was convicted of manslaughter.

On March 7, 2023, Akingbiwaju Joseph Opadele, was arrested and accused of sexually assaulting a 17-year-old female patient. Opadale was an EMS Worker and the victim relied on his care as a medical professional. While alone in the back of an ambulance, he placed his hands inside her pants and violated her. He was arrested and, despite known forensic evidence, was given a $15,000 unsecured bond, which allowed him to walk from jail in just 37 minutes since no monies are required to be paid when a bond is unsecured.

Just this week, Willie James Jr. was arrested after he cut off a court-ordered ankle monitor while out on pre-trial release for a pending first-degree murder charge. James Jr. had cut off his monitor in February just as his trial was beginning and had been on the run for almost a month before being re-arrested. After being recaptured a magistrate gave James Jr. a $250,000 bond which was later revoked by a judge because the magistrate overstepped their authority by issuing a bond.

We have highlighted only a few recent cases; unfortunately, there are many more. When the Charlotte-Mecklenburg Police Chief speaks publicly about his frustration with the bond policy you know it is an issue. When the Mecklenburg County District Attorney speaks publicly about his frustration with the bond policy, you know it is an issue. When Sheriffs from surrounding counties speak out about crime from Charlotte spilling into their communities, you know it is an issue.

We would be remiss to not say that we have some amazing judges and magistrates in Mecklenburg County. However, there is grave concern over the pro-criminal social bond policy that places at risk the lives of people in this county every day. Added are errors by magistrates failing to know they cannot issue bonds in certain matters. Judge Elizabeth Trosch is the overseer of both, and she has failed Mecklenburg County. We cannot wait for the legislature to do what our current laws will allow while violent offenders prey on our citizens. It is time for Judge Elizabeth Trosch to resign and push her social agenda outside of the courtroom.”

Channel 9 reached out to Judge Trosch for comment after the Fraternal Order of Police called for her resignation, and she sent us the following statement:

“The Honorable Elizabeth Trosch, Chief District Court Judge for the 26th Judicial District, categorically denies promoting a social agenda from the bench. Any claims made to the contrary are false. The 26th Judicial District and its judicial officials operate according to the U.S. Constitution, North Carolina Constitution, North Carolina General Statutes and Local Rules.

Calls to impose excessive bail are in violation of the Eighth Amendment of the U.S. Constitution and Article I, Section 27 of the North Carolina Constitution (which prohibit the use of excessive bail). The U.S. Supreme Court has held that “[bail set at a figure higher than an amount reasonably calculated to fulfill the purposes of [assuring the presence of defendant at trial] is ‘excessive’ under the Eighth Amendment.”

Under North Carolina law, the decision to detain an individual before conviction of a crime depends on many factors, which center on risk of causing harm and failure to appear in court. The assessment of these factors by magistrates and judges is only as good as the evidence presented by law enforcement agencies. Magistrates and District Court Judges making pretrial release decisions rarely receive testimony from the law enforcement officers directly involved in the investigation of these cases. The 26th Judicial District continues to work with local law enforcement agencies and the District Attorney’s Office to ensure judicial officials have the necessary information to make informed decisions about bond determinations and conditions of pretrial release.”

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