By Jason Riley | jriley@courier-journal.com | The Courier-Journal
In the weeks after Michael L. Wilson was charged with domestic violence after allegedly attempting to strangle his wife in late January, prosecutors had a warrant taken out for his arrest, arguing he had threatened to kill the woman.
But a day after the warrant was issued on Feb. 17, Wilson’s attorney, without a full court hearing, had a Jefferson District Court judge set it aside and instead issue a summons for him to appear at a future court date.
The practice of setting aside warrants at the request of defense attorneys, without prosecutors being able to argue their case, is common in Jefferson County.
In fact, a judge who refused to reinstate the arrest warrant said in court March 1 that the practice is done “every single day” and called it “absolutely acceptable.”
The office of the Jefferson County attorney, however, wants it stopped and has asked the state Supreme Court to determine if judges have this authority. Prosecutors say it violates local court rules, judicial conduct rules and, in the case of Wilson, a state law that mandates a review of the release of defendants charged with domestic violence or abuse.
And they say it can put victims in danger.
“This is a serious case,” Assistant County Attorney Allyson Cox Taylor told District Judge Sheila Collins on March 1 when discussing the Wilson case and the practice of setting aside warrants. “This is a case of strangulation, threats to kill. Is it OK for a defense attorney to go to a judge with no notice to the (prosecutor), without us having the opportunity to be heard?”
Collins said there was nothing improper about what Wilson’s defense attorney, Paul Gold, had done.
Prosecutors are using Wilson’s case as their example to the high court, noting they were never give a chance to tell District Judge Erica Lee Williams they felt Wilson was a danger and needed to be arrested before the judge set the warrant aside.
But Gold said his client’s case is a perfect example of the benefits of being able to have a judge set aside an arrest warrant.
The alleged victim in the case, he said, told him and another attorney she was not strangled and went to the hospital for a pre-existing back injury, information he shared with the judge before the warrant was set aside. A nurse called police in the case.
Gold said his client has no criminal record and a good job, which he would have missed had he been locked up on an allegation from a hospital worker who may not have had evidence an assault took place.
“Everybody gets arrested, everybody goes to jail, maybe they lose their jobs, maybe they lose their livelihood based on assertions that are nothing more than hearsay and are untrue,” Gold said in a hearing on the issue.
Gold also said prosecutors are able to ask judges to issue arrest warrants without defense attorneys being there to offer a counterargument, so the motions to judges to set aside the warrants are a fair balance for the defendant.
Prosecutors say warrants are important for several reasons, the most important being to make sure the defendant shows up in court and to prevent further offenses, especially in domestic violence cases.
In the Wilson case, prosecutors said they should have had a chance to show the judge evidence this was a strangulation case and that the alleged victim went to the hospital, and they should have been able to provide pictures of the injuries before a judge ruled on whether to set aside the warrant.
Chief District Court Judge Sean Delahanty said the practice of setting aside warrants has been around as long as he has been practicing law, about 30 years, but has been a sore spot for prosecutors more and more in the past decade.
Delahanty said judges are more likely to set aside a warrant when a defendant has hired an attorney, as it generally means the person has taken some responsible steps and is less likely to pose a danger.
“Generally when a person hires a lawyer, it is an indication they are submitting to the authority of the court and are prepared to work the issue through,” he said, adding that defendants are entitled to the presumption of innocence.
Gold said it is unfair for people to have to go to jail before getting a chance to explain their side of the story, and the early contact with a judge ensures they will not be arrested until they are arraigned and in court with counsel.
“I’m amazed at how eager they are to take someone out of the community, place them in jail, with bonds they are not going to be able to post, based on allegations,” he said, noting there is an affidavit in the Wilson case that the woman was not abused.
Commonwealth’s Attorney Dave Stengel, who said his office is considering joining the county attorney’s motion, said having a lawyer doesn’t make someone safe, and defense attorneys have certain judges on “speed dial” to get warrants set aside.
He also noted that judges don’t have all the facts on the arrest warrant when they set it aside, such as whether the suspect has other separate charges or a history of fleeing.
So a judge without the facts lets a defendant out “and then boom, they’re gone,” he said.
Reporter Jason Riley can be reached at (502) 584-2197.