To bail or not to bail: Which King County judges are making crucial decisions?

Last March, Federal Way police responded to an altercation in an apartment parking lot involving a man pointing a loaded gun.

They arrested the suspect, searched his car, and found multiple handguns and narcotics in the rear seats, where three children had been riding. The man told cops he had been released from federal prison just days prior.

At Blake Kirvin’s first appearance hearing, King County prosecutors asked for $100,000 bail. Besides Kirvin posing a danger to the community, they argued that he was unlikely to return to court if released because of his nine warrants since 2009.

A King County District Court temporary judge released him with only his promise he would come back to court. Kirvin was picked up hours later by U.S. Marshalls on a federal probation violation.

With violent crime spiking in recent months, courts have come under increased scrutiny. Local television reporters and radio hosts lambasted the decisions of specific judges, including the one in the Kirvin case.

This has consequences, eroding public confidence in a judicial system buffeted by criticism of the U.S. Supreme Court on down.

Here’s a way to provide more consistency and greater faith in decision-making: Move these so-called first appearance and bail hearings for serious charges from District Court to Superior Court where more serious felony cases are charged and tried.

Right now, people arrested on suspicion of felony crimes — including aggravated first degree murder — have their first appearance and bail hearings in King County District Court, which handles misdemeanors that carry jail time for up to one year.

King and Snohomish counties are among the few if not the only jurisdictions in Washington to have this court procedure. No one I talked to knew how or why the practice started, or how long it’s been used.

A complicating factor: District Court judges are much less likely to have experience with serious charges and the crucial calculation of risk to the public if a defendant is released. With 25 judges, District Court often relies on 37 pro tempore (“for the time being”) judges — unelected fill-ins — to run these felony first appearance hearings, such as the one with Kirvin.

To be considered for a pro tem position, an attorney must be an active member in good standing with the Washington State Bar Association and have a minimum of five years of civil or criminal experience.

“Is that the best system, and how did we arrive at such a system,” wondered Dan Clark, King County’s chief criminal deputy prosecutor. “Because if there’s going to be critiques about who’s being released and who is remaining in custody on very serious felonies, one would think that should be in the hands of elected or appointed Superior Court judges who are most familiar with the felony statues and the law.”

King County Superior Court Presiding Judge Patrick Oishi agrees: “There is quite a bit of merit in a consideration for Superior Court to actually conduct a first appearance calendar. Our judges are very experienced in dealing with felony level cases. As far as level of complexity, level of seriousness, level of violence — it’s much more heightened in a Superior Court case.”

Reforming the system so that Superior Court handles felony first appearances won’t stop second-guessing of local judges. But it would provide confidence that the most experienced, most accountable people are making these tough calls.

First appearance hearings resemble a judicial assembly line, with upward of 50 cases in an afternoon. Most take under 10 minutes.

At this stage, a judge determines whether there is reason to believe the defendant committed the crime. The judge also advises the accused of their rights and is the first to set bail or release, pending a trial. That could include extra conditions such as electronic home monitoring.

State Supreme Court rules direct judges that the first option should be to release people pending trial.

There are exceptions if the judge determines the accused is likely to commit a violent crime or intimidate witnesses. If the judge believes the person won’t come back to court, the rules say the judge must impose the least restrictive conditions.

Prosecutors want high bail, defense attorneys seek immediate release, and judges make quick decisions. The outcomes are sometimes head-scratching, made all the most disturbing when the judge isn’t full-time.

In March, a District Court pro tem released a woman accused of assaulting her two-month-old daughter, even as police objected because the woman had another child at home. That same month, another District Court pro tem released a man with a criminal history after he was arrested for breaking into two homes on the same night.

Also in March, prosecutors noted that judges set bail for several of those swept up in the Seattle Police Department’s “Operation New Day” emphasis in Little Saigon and downtown that was much less than what prosecutors asked for.

Of the 16 people arrested, judges released nine at first appearance hearings over the objection of the Prosecuting Attorney’s Office. Among them was a suspected drug dealer with a loaded 9mm handgun.

Prosecutors say they lack confidence in the experience of District Court judges, particularly the part-time replacement pro tems, and say the judges and pro tems are rotated in court without any set schedule.

“The real wild card in our first appearance calendar is the quality of the bench that reviews those hearings,” said Senior Deputy Prosecuting Attorney Dana Cashman, co-chair of the Violent and Economic Crimes Unit at the Maleng Regional Justice Center in Kent.

“On any given day, the same kind of case could be in Seattle or Kent and we could get different bails or no bail, and there’s very little predictability.”

For the first six court days in April, six different pro tem judges heard felony first appearance cases in Seattle. For April and May, 10 different District Court judges or pro tems made decisions in felony cases.

In the Kent courtroom, there was even less consistency. The assigned District Court judge was there less than half the time in April and May. Five different pro tem judges made decisions in felony cases.

District Court Presiding Judge Matthew York disagrees with prosecutors and says there is a mostly predictable rotation of judges.

York said he would be fine with Superior Court handling felony first appearances. While he didn’t know when or why the practice began, York guesses that it was a financial decision: it’s cheaper to have one judge and one courtroom devoted to the first appearance calendar than create a split between misdemeanors and felonies.

If money is needed to make the change, the Metropolitan King County Council would have to approve it.

Chair Claudia Balducci said she had not considered the notion of switching felony first appearances to Superior Court until I asked about it. She said any of her council colleagues was welcome to explore the issue, but made no commitments.

The criminal legal system continues to be buffeted by three historical forces: pandemic disruptions, the George Floyd murder and the county’s rethinking of public safety approaches, and a sharp increase in violent crime.

Cops, courts and jails are under immense stress.

For public confidence in the judicial system to be maintained, decisions must seem rational, predictable and transparent.

For those reasons, the Metropolitan King County Council should delve deeply into how the courts could be improved.

Having Superior Court judges make the initial decision on whether someone arrested on a felony crime should return to the community or remain in jail is a good place to start.