Kenosha County DA, court commissioner discuss bond-setting process utilized locally | Local News

And it was about that same time when what Milwaukee County District Attorney John Chisholm admitted was a “ridiculously low” bail was set for Brooks in a previously violent case.

That amount, $1,000, in a case where Brooks is accused of running over a woman with the same vehicle he used in the Christmas parade attack, was posted less than a week before and the man, now accused of killing six and injuring dozens more, was a free man.

Chisholm has been under fire since, with many state lawmakers calling for his removal from the post he has held since 2007. Where that leads to down the road is something that likely will play out in the weeks and months ahead.

The controversy around the low cash bail, which Chisholm said was recommended by an overworked and inexperienced prosecutor, has led to many questions about how bail is set and what parameters district attorneys and court commissioners must follow.

Bail differs from bond, as the former is the cash or amount required to allow a defendant’s release from custody, while the latter includes any number of non-monetary conditions such as no-contact orders and prohibitions from possessing weapons and consuming drugs and/or alcohol.

A signature bond is another option for a commissioner, and that ultimately services as a “promise” by the defendant to abide by conditions or they may be required to post the amount of cash equal to what was imposed on the signature bond.

Kenosha County District Attorney Mike Graveley and Kenosha County Circuit Court Commissioner Larry Keating both said they wouldn’t comment on the specifics of the Brooks’ case, but did offer a glimpse into the bail/bond process.

“We start with the seriousness of the offense charged,” Graveley said. “We are looking at whether the offense is an assaultive or violent offense, we’re looking at what the maximum penalties are, we are looking at whether the offense itself shows opposition to authority or rules that would make a bond a poor risk.”

Community ties also are a factor, both Graveley and Keating said, in deciding if a defendant is likely to continue making their scheduled court appearances.

“That doesn’t mean that someone who doesn’t live in the county of Kenosha or the state of the Wisconsin won’t return to court, but it is a factor,” Keating said. “All these factors, you have to balance. I think it’s important to do that.”

Keating, a former police officer and detective in Kenosha for 20 years and then a private criminal defense attorney before he replaced former Commissioner David Berman, said he reads every criminal complaint that lands on his desk in preparation for the daily intake call that happens at 1 p.m.

Having all the information in front of him is paramount in making bail and bond decisions, he said.

“Everyone is presumed innocent, so these are just allegations at the state that bond is set,” Keating said. “Nonetheless, a very, very strong factor that I take into account is public safety.”

Cases that involve alleged illegal gun activity and high-speed pursuits are two instances that Keating often will take an even harder look at when it comes to setting bail.

Both fall into that category of protecting the public, which is paramount.

“I do not take kindly to alleged unlawful use of firearms,” Keating said. “I spent 20 years in law enforcement; I’m very familiar with firearms, I’m not anti-firearms. I own firearms. I’m a ‘Second Amendment’ guy, so to speak.

“But the unlawful use, I think weapons, firearms in particular, the destruction brought by individuals who use those firearms in an illegal manner has wreaked havoc across this nation in all areas, but especially urban areas. Gun calls are up hundreds of percent in this town alone.”

High-speed chases fall into a similar category, Keating said.

“(Those) put not only themselves, but the passengers in the cars at great risk, and the public at a tremendous risk,” he said. “Because you’re turning your car into a 4,000-pound missile rocketing through crowded urban streets with other traffic.”

And there are many times when a victim will ask Keating for a lower cash bail, and while he takes those statements into account, everything in his decision-making process goes back to keeping the public as a whole safe.

“Part of setting a bond itself involves getting as much information as you can get to help you and you can rely on in setting a bond that is appropriate,” he said. “I try very hard. My goal is to get it right every time, but I’m human. If it needs to be corrected at a later date by me, I will do so, but my overwhelming goal is to get it right the first time, every time.”

Should a motion come before the court to adjust the bond, it can be looked at after the fact, Keating said. Circuit Court judges also have the authority to make any adjustment they see fit.

“They can change it, and the way I look at it, that’s their job, is oversight,” Keating said. “I have no problem ever with a judge changing what I have done. Many times, too, a case will develop with more information later that wasn’t available at the time of the initial appearance. All of that is relevant.”

A defendant’s prior record is a key component of what bail the prosecuting attorney will recommend, Graveley said.

“We’re also then looking at the seriousness of the priors, the number of priors, what have been the outcome of those prior cases, whether they show any rule violation or the inability to comply with rules, whether those are violent, also suggesting that protection of the public in this new offense needs to be a priority.”

In its most simple terms, the bail/bond is a guarantee that a defendant will make all future court appearances, but it can’t be used in a punitive fashion.

And that’s one fact that some seem to forget.

“The statute is very clear,” Graveley said. “Bond is to be set an amount that will guarantee your appearance in court. … You can’t have your bond be your sentence. The bond is essentially set to make sure a person will be back in court and (has) a community safety consideration as well.”

Wisconsin also is not a “10% state” when it comes to bail, which means defendants must post the entire cash amount set by the commissioner during their initial appearance. Just to the south, Illinois not only is a “10% state,” but also a “no-bond” state, Keating said.

“(In Illinois), if the face value is $100,000, a person can post 10% of that or $10,000 and be released,” he said. “Whatever I set (here) is dollar for dollar, here in Wisconsin.”

Prosecutors on the staff have latitude to argue for the bail they feel is required in any particular case, Graveley said, and that number could change again once the case ends up in the intake court, where the bail is set at a defendant’s initial appearance.

“What typically will happen for us is the prosecutor who charges the case will make some recommendation because they are the one who has most thoroughly considered the case,” Graveley said. “Then the intake attorney takes that information and uses it, but also hears out what is going to be said in court (along with) all the other circumstances that might develop in a courtroom.”

Graveley said there normally isn’t any “staff-level” discussions that happen on a daily basis when it comes to requesting a bond, but there may be some dialogue among the staff on a more serious offense.

“That will occasionally happen on a very serious case, where multiple people will speak on a bond,” he said.

In the aftermath of the parade attack, many commenters on social media and in mainstream news not only decried the low bond in the suspect’s other pending case, but called for a “no bond” order for Brooks after the parade fatalities.

Whether the bond in the other case was too low can be debated, but Brooks had to have a bond attached to the multiple-homicide case. That is the law, with only a few exceptions, in Wisconsin, Graveley said.

“Until conviction, you must have a bond,” he said. “There are states with no bond, and there are certain, rare circumstances where you can have no bond, but they are almost always post-conviction.”

There are specific parameters that must be followed when setting a bond in misdemeanor cases. Graveley said that bail can only be as much as what the maximum fine for a conviction would be. In felony cases, the bail can be whatever monetary amount is deemed appropriate.

Keating sees every criminal case in the county as a first step in the process, — he’s had some high-profile ones like Kyle Rittenhouse — and that sometimes leads to some big-time emotions from both sides when they appear before him.

And he’s not immune to those emotions, but Keating takes a professional approach to each case when he sets the bail conditions.

“I’m a human being, I have feelings, I care, but you don’t want to be overly influenced,” he said. “People have different ideas of what justice is. For the victims of a crime, justice is harsh, it’s, ‘I want this person, even at this stage, to be punished,’ which is not the purpose of bond.

“For families of the alleged offenders, it’s mercy. So you’re back-and-forth here, it’s vengeance versus mercy. That’s a delicate balance in the entire system of criminal justice. I understand that. … I have to be professional, and I’m always going to be professional. I was put in this position to use my professional judgment.”

At the end of the day, Keating takes all the information from the criminal complaint to what’s said in court by both sides, to the victims of the alleged crime, into account.

But he also shoulders the responsibility to make that final call when the bail and bond is set.

“I’m a baseball guy, and I’ll make the call,” Keating said. “Just give me the information. One thing that I would be disappointed in is if there was information that was available to me that wasn’t giving to me that would be important.

“I want as much information within a reasonable period of time that’s available. I want to make the right decision. I’ll make the call. I’m paid to make the call. I’m paid to call balls and strikes, and I’ll do that. As long as I have this job, I’ll do that.”