Nobody wants drug dealers on the streets, but...

Herald columnistOctober 23, 2012 

— Those who sell dope that ends up in the hands of kids – and shoot guns in violence on the streets that wrecks the lives of the rest of us – should go to prison.

We all should applaud the cops who risk their lives to catch them. Fort Mill Police Officer Will Reap and Rock Hill Police Officer Trista Baird were shot just three years ago while trying to arrest an accused dope dealer.

But here’s what happened to that drug dealer.

He was denied bail not because of selling drugs, but because he shot a cop and showed he was a danger to the community and anybody else he saw. A ton of prosecution and evidence fell on top of him later, as it should have. He got 23 years in prison.

It takes a conviction to send a dope dealer to jail for years or maybe for good. The summary court magistrate who first sees an alleged dope dealer after an arrest, under the law, is not there to determine if somebody is guilty or innocent.

York’s police chief complained publicly Monday after a bunch of alleged drug dealers received, in the chief’s view, low bonds. Some of the offenders rounded up in a long investigation have past histories of selling dope.

Chief Andy Robinson slammed the system and the magistrate who set the bonds, calling the system flawed when higher bonds are not set for repeat drug offenders.

He might be right.

His department spent months on the cases, and hard-working people under siege from dope dealers rightly applauded.

Robinson is no shrinking violet. Earlier this year, when three guys were involved in a daytime gun battle on a York street, it was Robinson himself who tackled one of the men after a long chase involving most of the department.

Robinson was a hero that day. He still is. He stood up for the people of York then, and he is doing it now.

But magistrates and other judges who set bonds must be neutral for the judicial system to work, said Gary Lemel, a Rock Hill defense lawyer and former president of the York County Bar Association. Lemel, a former public defender, spent many years as a Rock Hill city prosecutor working directly with police who arrested drug offenders.

He has seen drug dealers locked up for heinous crimes from both sides of the courtroom.

State law requires defendants arrested for anything less than capital crimes to receive a bond, Lemel said. The amount of bond is up the judge.

“The purpose of a bond is to ensure a person’s appearance in court,” Lemel said. “The judge who sets bond takes into account the seriousness of the crime, criminal history, whether someone has failed to appear in court before, and the potential threat to the community.

“Generally, is a person a flight risk and a danger to others?”

The judge must be neutral as the person appearing in court is presumed innocent, no matter how horrible the alleged crime.

“Bond is not punishment,” Lemel said. “Bond judges make no rulings on evidence, or whether a person is guilty or innocent. A judge should never be criticized for being neutral.”

The police are not neutral, Lemel said. Police lock people up and help with prosecution. Defense lawyers are not neutral, either.

“For those of us in the system who are not neutral,” he said, “we should be very cautious about criticizing the part of the system that is required to be neutral, which is the judges.”

Understandably, a public that sees so many people arrested can be unnerved or get angry when alleged dope dealers walk out of jail to possibly sell more drugs to pay for lawyers or fancy cars or whatever.

But until there is a trial or a guilty plea, the accused is just that – accused.

Harsh words from police for a judge setting a bond are far more common than the public might know, said Cotton Howell, the York County emergency management director who was a magistrate for many years. They’re just rarely made public.

Howell is a conservative law-and-order guy, but the Constitution comes first. Even those accused of horrible crimes that outrage the public and upset the police have a right to a bond.

The bond rules are about danger to the community and flight risk – not whether a frenzied public wants somebody hung from the nearest tree.

“Police officers sometimes put weeks, months into an investigation,” Howell said. “They sometimes have had to defend themselves against a defendant, fight and scratch and get hurt, and they certainly believe that person arrested is guilty and belongs in jail.

“But guilt or innocence is not what the bond judge is there to cover. The police are not the judge and jury. The person may be guilty and may need to eventually be sent to prison for a long, long time. But that’s a jury’s call. Not the police.”

The ability of a defendant to get a bond is what separates the United States from other countries, Howell said. Further, he said, South Carolina has a terrible history of “putting people in jail and forgetting about them.”

Few have ever complained that convicted drug dealers do not get long sentences in York County after trials. A few years ago, the sheriff’s office and prosecutors put up a billboard near the state line aimed at Charlotte drug dealers, letting those who peddle drugs know that sentences here are far more harsh than in North Carolina.

The only bond set Tuesday morning in York County at the jail was a single criminal domestic violence case. That bond was $2,130, court officials said. In Rock Hill city court Tuesday, many bonds were set from overnight arrests. Many were felonies.

“The law is clear,” said Diane Anderson, Rock Hill clerk of court. “These people charged have a right to have a bond set.”

Court staff, police officers and others were buzzing Tuesday about Robinson’s scathing words. Many seemed to agree that the bonds set by Magistrate Leon Yard seemed low – especially for repeat drug offenders.

Still, Rock Hill Municipal Judge Lisa Tyburski went through each case for each defendant in a bond hearing. Tyburski re-read each person his rights – right to a lawyer, anything that is said can and will be used against them, a trial by jury, all of it.

She sentenced no one and heard no evidence about whether any of these people were guilty or not.

Tyburski went through, as all magistrates do, the family situation of the accused, if the person has a job, income, criminal history, the severity of the charges, future court dates, applications for public defenders, more.

An 18-year-old charged with possession of painkillers and second offense marijuana possession, both felonies, received a bond of $5,000.

“$500, I’ll pay you back,” the young man told his grandparents in the courtroom.

That guy knows state law dictates that it takes just 10 percent of any bond to get out.

Tyburski ordered two defendants alleged to have been in fights that ended with felony assault charges to have no contact with the victims.

One defendant with a swollen left eye claimed he was the victim, but Tyburski spoke firmly about what a bond hearing is about.

“You get to tell your side of the story when you have your court dates,” she said.

Bond was set for both at $4,000.

One defendant asked in open court, “What happens if you ain’t got no money?”

Another defendant sitting next to him, in a bond hearing for drugs, said, “You stay in jail, what do you think? If you can bond out, you don’t have to sit in jail, but you still have to go to trial.”

Rock Hill officers Tuesday in court took no position on any bail.

The city police officer in court, Paul Myers, told the defendants, “If you can’t make bond, you have to stay in jail until your court date.”

One defendant, whose bond was set at $4,000, said, “Ain’t nothin’ fair about this court.”

The accused can claim the bonds are too high. The cops can believe the bonds are too low. But the judges must stay out of it.

“The ability to get a bond that is reasonable keeps us from being a police state,” said Howell, the former magistrate. “I know Andy Robinson and he is doing a fine job as police chief in York. But I know Leon Yard, a great man, and he is known as a fair and good magistrate.

“There is not a right or wrong answer sometimes.”

Andrew Dys 803-329-4065 adys@heraldonline.com

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