- (female announcer) Production funding for Behind The Headlines is made possible in part by the WKNO Production Fund, the WKNO Endowment Fund, and by viewers like you, thank you.

- Shelby County District Attorney Steve Mulroy tonight on Behind the Headlines.

[intense orchestral music] I'm Eric Barnes with The Daily Memphian.

Thanks for joining us.

I am joined tonight by Steve Mulroy, District Attorney.

Thanks for being here again.

- Pleasure.

- Along with Julia Baker, who covers criminal justice and public safety for us at The Daily Memphian.

Thank you for being here again.

There's been so much focus on lately, in the sort of public discussion in comments we get, guest columns we get around bail, and when, and why bail is, how it's set, when people are released, all those sort of interrelated issues.

- Sure.

- And if you bear with me, I'm gonna give the kind of things I hear, those sort of layperson's perspective on what's going on and then sort of you as both DA and former, you know, law professor and so on.

- Sure.

- Like fill in what is going on because I think there's both a great deal of misinformation, confusion, and frustration, right?

- Sure.

- I think your office has put out a number of statements about issues around this trying to kind of help clarify it.

- A lot of misinformation.

- A lot of misinformation.

So, let me walk through just the basic scenario of bail and the purpose.

I think most people get the sense that, you know, if somebody is accused of, I don't know what, you know, cheating on their taxes or something, they have no prior record.

This person does not go to, needs to rot in jail until they go to trial, right?

They are maybe out on bail or they're out on their own recognizance, they have no prior records.

Say, maybe a disorderly conduct charge of somebody who's never, they had too many drinks on Beale Street.

They have no prior record.

They didn't hurt anybody, they just embarrassed themselves.

This person doesn't need to, could be released on jail or released on bail or something.

- Sure.

- Then, you've got the extreme circumstances.

People, sadly, in the last fall, we had a couple of incidents, you know, Ezekiel Kelly, caught on tape, many witnesses killing people with a gun, prior record.

Of course, that person's not gonna go out on jail.

And everyone gets, I think, where 99.9% of people understand why.

- Right.

- The confusion comes with all these kind of middle spaces, and I don't wanna diminish the crimes, but auto break-ins, carjackings, and situations where people who have many prior offenses- - Right.

- Are arrested.

They go to jail and they are released in some, you know, twenty-four to seventy-two hours on a very small amount, a bail that maybe is set at $100,000 but really that is, they need to come up with 10% of that generally in the way the bonding works, and they're out.

And, again, you know, Ezekiel Kelly was a repeat offender.

He was, I don't know that he was out on bail, but he was a repeat offender.

Clear of the abstinent, other who have been repeat offenders.

People are so focused on that.

For those middle-space kind of offenses, and apologies for that phrasing, and those are the ones that have people, many people so scared right now and angry and frustrated.

- Right.

- They know someone or their car's been broken into, there's an attempted kidnapping, there's an attempted carjacking, what, why?

People ask me and they ask in our comments, "Why would that person ever be released when they were arrested?"

- Sure.

Well, there's a lot there, so let- - Yeah, there is.

- Let me get to it.

So, first of all, quickly, the killer of Eliza Fletcher and also separately, Ezekiel Kelly, weren't in fact released on bail.

They had been, they served sentences and then released, and then re-offended, right?

- Yes, yes.

- Which is its own issue because it shows how if we don't do anything to intervene with rehabilitation and we just put somebody in prison and they come back out, they're likely to re-offend, right?

No one talks about that revolving door.

But let's talk about bail.

So, a couple of things we need to get clear, just from the get-go.

First of all, the DA does not set bail, right?

The bail is set by judicial commissioners.

In fact, in many of these high-profile cases, these middle-ground cases you've talked about that were controversial, the DA's office either had no role whatsoever in the setting of the bail or the pre-trial release or actively opposed what the judicial commissioners did.

The other thing that I think people need to understand is that none of these recent controversial cases, your middle-ground examples have anything to do with the new bail system or bail reform, right?

Because all of the new bail system did was to get in compliance with the law, which we had not been in compliance with, provided a hearing within 72 hours of arrest with counsel for the defendant if the person's still locked up after 72 hours.

So, these controversial middle-ground cases had all been instances in which the judicial commissioner, you know, controversially, set a bail that allowed the person to get out before we even got to the new system.

So, that was a legacy of the old system, right, but I think maybe to get to your point, many people I think seem to think that the amount of the bail is some sort of symbolic expression of how serious the underlying charge is.

- Yes.

- Right?

That's not the way it's supposed to work under the law.

The only reason that we set an unaffordable bail, the only reason that we would detain somebody prior to trial is if we think they're not gonna show up for court again, they're gonna skip town or we think they're likely to re-offend and thus provide a danger to the community.

Because under the law, all of these people are presumed innocent until proven guilty.

Now, what we don't really hear about as much now, but really should be thinking about is that under the prior system we had a lot of the converse problems.

We had far too many people languishing in jail without having been convicted of any crime for 18 months or longer.

We were the leader in the state for that, for the simple reason that they couldn't afford cash bail.

And many of those people were eventually released, right?

But by then, the damage had been done.

We disrupted their lives in their communities.

A lot of, some of them were innocent.

The longer you were there, the more likely you were to be Black, so we have to guard against keeping innocent people locked up, as well as making sure that we keep people locked up who are likely to re-offend and who are a danger to the community.

So, to answer your question, those middle-ground cases, the defining feature about whether they're released pending trial or not, or whether they were released with conditions, daily-reporting, ankle monitors or whatever, it isn't about the seriousness of the underlying charge because they haven't been convicted yet.

It should be based on this person's record and ties to the community, do we think he's likely to re-offend?

If so, let's lock him up to keep the community safe.

- Let, and apologies to Julia.

One more follow-up and we'll hear her in on these, this whole question, this is very helpful.

Your, specific to your office, you talked about the role of the judicial commissioners.

- Yes.

- You talked about the role of the judges because bail is sometimes set by a judge as well.

- Yes, sometimes, mm-hmm.

- Okay.

What is your authority to invoke whatever, you know, pre-trial detention?

- Yes.

- Your, and I'm saying you, it's really your office and the folks who work for you.

I mean they are in before the judicial commissioner saying, "Do not let this person out.

They are dangerous, repeat offenses, and," but it's really just making the argument to that judicial commissioner.

There's no authority you have to say, "Yeah, this one we're keeping."

- That's correct, we have no authority.

We only have the authority to make recommendations to the judges, and I want to emphasize again that a lot of these controversial decisions were made at the initial hearing by the judicial commissioner before our office gets to it.

We don't get involved until that 72-hour hearing.

Until then, we're not involved.

The judicial commissioner makes the decision.

- Okay, so, again, apologies to Julia, then I'm gonna shut up.

So, for that first part, who is in that room in general?

- The judicial commissioner.

- And the accused.

- And the accused and that's it.

- Maybe their lawyer.

- No, no.

They usually don't have a lawyer at that point.

So, you know, this could happen.

Like these judicial commissioners work 24/7.

Someone's arrested at 2:00 AM, they're brought into the sally port at the jail.

You know, there's a judicial commissioner on call and pretrial services, which is a county agency will do an interview.

They will, you know, provide basic information about the person's background.

They'll provide this to the judicial commissioner and the judicial commissioner will make an initial decision about setting, you know, bail.

If the person's able to make that bail right away, then we never touch the case, I mean, later on for trial.

But if they're still in jail three days later, within 72 hours, then there's an actual hearing.

They've gotten themselves a lawyer appointed.

One of my prosecutors is down in there and there's an argument, should we allow this person to be out pending trial or do we keep them?

- Okay, Julia.

- One of those, you know, middle-ground cases that we were referring to is Chase Harris who is accused of shooting at an off-duty officer at Huey's back in April.

- Mm-hmm, mm-hmm.

- Since then, he's been out on bail and I think before then, he's been out on bail and rearrested over and over again for prior alleged crimes.

- A couple of times.

I mean, the- - Yeah.

- Media has reported it as like four or five times and that's not really the case.

But yeah, go ahead.

- Correct, yeah.

Just under a handful of times.

But he never got to that 72-hour point where he got that bail hearing.

- Correct.

- Is there something that could have been differently to keep him detained and keep him from, you know, getting bail and then getting rearrested several times?

- Right, so on the Chase Harris thing, again, there's some misinformation about that because there was some email newsletter that was sent out that was incorrect.

- From the mayor, from the mayor of Memphis.

- Yes, yes, and we eventually corrected it, although there was still some inaccuracies in the correction, but in any event, within a week of him being arrested for the Huey's shooting, we filed a motion to revoke the bond.

And then, within a week after that, we went ahead and filed an indictment.

And at the indictment stage we can make a recommendation for bond that is more likely to be accepted by the judge.

And so, as a result of those actions, Chase Harris got back into custody and he remains in custody, right?

Thanks to what we did.

Now, you're asking, "Well, is there something that could have been done at that earlier stage?"

Yes, I think in that particular instance, that's an example where I think the judicial commissioner, based on the prior arrests, probably should have set an unaffordable bail, right?

And so, we disagree with the decision that was made by the judicial commissioner in that case.

And there are a handful of high-profile cases where our office did disagree with the judicial commissioner, so I would advocate for the judicial commissioners being a little bit more willing to lean into unaffordable bail, i.e.

pretrial detention, in cases where there's a long-repeat history of crime.

But lest my comments be read as dumping on the judicial commissioners who I think by and large do a good job, I wanna say, although there are some high-profile cases where we disagree with what they did, I consider those to be the exceptions, not the rule.

Most of the time, I think they act appropriately.

And I will also say this, we're spending a lot of time talking about bail and I understand it because there's a lot of people talking about it.

But I wonder whether we're focusing on it maybe more than it deserves for this reason.

The vast majority of people who are let out on bail do not, in fact, re-offend, right?

Less than about 20% or so do, only less than four percent re-offend violently.

And then, if you were to take all those cases of people re-offending before their case was disposed of, while they're on bail, and you add 'em all up, it's still less than one-eighth of the total amount of crimes that occur every year.

- Is that some hundreds of people or some thousands of people, that when you boil it down that way, which is I think really useful?

- Yes, yes, yes.

Well, you know, we're talking about over 100,000 cases every year in Shelby County.

So, the number of re-offenses is probably in the hundreds or it may, maybe go over a thousand.

but I think that the point is, since it's such a small fraction of the total number of crimes, even if we were to shut down bail entirely and just say throw the constitution out, we would still have an unacceptably high crime rate.

But I guess what I'm trying to say is bail is a little bit of a problem, there is room for improvement.

It's this much of the problem, and it's getting this much attention.

- What about small percentage of people who do re-offend?

Is there any chance at rehabilitation for them?

- Yes, I think there is.

I mean, obviously, it depends on the facts.

Some of those people who've re-offended, if they're just a serial re-offender and all rehabilitative efforts have tried and failed, you know, there is a small percentage of those that I guess maybe we need to give up on and just talk about long-term incarceration.

But I think for a lot of them there is a chance for rehabilitation, and that illustrates how little we try with rehabilitation.

You know, I mean we put, we lock people up, we don't really do much with them.

They eventually get out and they return to the only life they've ever known.

And we act surprised when that happens.

Like I said before, that's part of the revolving door that we don't really focus on as much as we should.

We really need to be focusing on intervening with these people to try to get them, you know, substance abuse problems, is it an employment issue?

Is it an education issue, what is it?

So, that they have some realistic alternative to life on the street.

That not only is more humane for them, but more important for our purposes, it's more likely to reduce that repeat-offender rate and thus make us safer in the long run.

- For that small number of people, and you're not the only one who said that and that it, when you really boil it down is this small number of people, which can, I mean on some part of me, and I think others think, well, that makes the problem actually a little bit more manageable.

That if we can focus on that relatively small number of people who are doing some of these repeat offenses and these most disruptive of things that we'll get to the arrests that you and the others, the various law enforcement agencies made or people who, a group that have been breaking into liquor stores.

Very high profile, what, some 21 break-ins.

- Yes, yes.

- It's a small group of people.

- Yes.

- And you all, you got them and we'll talk about that.

- Yeah.

- Back to this, to the notion of rehabilitation.

The notion of what do we do if we're not just gonna lock everybody up, this small group up for a long time.

- Right.

- Who takes care of that?

You know, who takes that person and says, "You're a repeat offender, you've broken into 10 cars, "you've attempted carjacking, you have a, you know, you've a, some kind of weapons offense," you know, what happens to that person beyond being released and having an ankle bracelet and a summons to appear in court X months down the road?

- Well- - Who's, who?

Like, who intercedes at that point?

- Yeah, so I think we should really be focusing not just on the period between arrest and ultimate disposition, but just in general what happens to these people.

And it's a good question because the responsibility is diffused, right?

The court has a certain amount of responsibility.

Maybe their counsel, public defender, if they go to prison, Tennessee Department of Corrections theoretically has a responsibility.

But I don't think they do all that much with rehabilitation, and maybe it's a resources issue.

I'm not throwing shade on the TDOC officials.

I think in the past, the view was that the DA's office, that wasn't really their job, their job was to lock people up.

But I take a different view.

I think it's very much our job and I am trying to get my prosecutors to be focusing more and more on, not just how long can we lock the person up, but what interventions can we require as part of the plea deal, you know, you must get your GED.

You must get a job, you must get substance abuse treatment.

You must do anger management, as much of that as possible.

Because I think that's more likely to actually reduce that repeat-offender rate and make us longer-term safe.

- We got 10 minutes left, and I should also note to people that we're taping this on Wednesday morning.

So, just so we know, there's a bit of a delay before this is aired because of my schedule, so Julia.

- You know, what about juvenile transfer?

I know that you had a campaign promise of transferring fewer juveniles.

- Mm-hmm.

- There was a 15-year-old who allegedly shot and killed John Materna, who was also known as the "Watermelon Man".

He sold watermelon in the Nutbush area.

- Right.

- You know, I think he had, you know, some prior charges as well.

- He did, mm-hmm.

- You know, how does someone like that get to that point?

- Well, I mean, that is a great question.

You know, one of the things that Judge Sugarmon, the newly-elected Juvenile Court Judge and I have been talking about doing, is trying to intervene earlier in the process in the, what we call the dependency neglect docket.

So, before they ever get into the delinquency docket, a lot of these kids are, you know, in the, what we call the DNC docket because, you know, the parents aren't taking good care of them.

They've got other kinds of problems at home.

Maybe we need foster care, maybe we need some sort of group home intervention.

And you know, as sure as night follows day, a large chunk of those kids on the DNC docket will end up in the delinquency docket and then a certain percentage of those are gonna end up transferred to adult court.

It's a pipeline and we need to intervene sooner than, sooner to try to prevent that from happening.

And so, we're working with Judge Sugarmon on that.

My policy on transfer is that there are some situations like the "Watermelon Man" killing, you have a first-degree murder, the person's got a record, transfer does seem appropriate, but it should be done as a last resort, not as a first instinct.

- And that is by law sometimes when there is a, you know, a murder case by law you have to file a motion to transfer that juvenile?

- No, no, the law says that for certain offenses at certain ages, transfer is, you're eligible for transfer, but it's still up to the prosecutor to file the petition for transfer.

And it's still up to the Juvenile Court Judge to accept that petition.

And we are gonna talk about Operation Broken Bottles at some point, right?

- Yeah, yeah, yeah.

We certainly are, let's go and go there because I think it is an example, I mean, correct me if I'm wrong, of this small group of people, and trying, who are having a big impact and in this case, a lot of high profile.

So, Operation Broken Bottles is, was what?

- Yeah, so Operation Broken Bottles was a program that the Memphis Police Department did in partnership with the multi-agency Gang Unit, which had representatives, a number of different law enforcement agencies.

But MPD took lead on this, and we all heard about this, you know, repeat smash-and-grab break in retail, you know, twenty-one different stores were violated, you know, over a period of time.

It was an organized retail theft ring.

It was a mob of people who did this over and over again in an organized fashion.

And the Multi-Gang Unit set up a task force on it.

And then, our office set up its own task force where we had a couple of prosecutors, all those cases kept going to the same prosecutors rather than going to the different courts so that they could look for repeat players and patterns, and work closely in partnership with the Multi-Agency Gang Unit to target these repeat offenders.

And it bore fruit.

Twenty-one, twenty-five people have been, you know, identified.

We've recently got indictments against 15 of them.

We're talking about, you know, damage well in excess of a quarter million dollars, you know, dozens and dozens of car thefts and break-ins and gun thefts, some of them leading to violence, you know, eighty-seven different counts, ranging to over 15 indictments.

It's an example not only of what you just said about focusing on the repeat players who have an outside influence as what we call crime drivers, but it's also an example of what I'm trying to emphasize is partnerships between my office and law enforcement.

We did a Cold Case Unit, it solved four cases so far, some leading back as far as 1995.

That's a partnership with MPD.

Operation Broken Bottles is another example of that partnership.

- So... About how many of them have been of, with Operation Broken Bottles, how many people have been arrested and booked?

- Of the 15 that have been indicted, all but two are in custody, there are two still at large, but we expect them to be in custody pretty quickly.

- You know what my question's gonna be.

Are they gonna be released on bail?

- So, this was one of those examples where we did a not in custody, an indictment and under that procedure we get to make recommendations as to bond amounts that very often are accepted by the court, and all of the bond amounts are very, very high.

One is as high as half a million dollars, many of them are well over a hundred thousand dollars.

Given their records, I think those bond amounts are appropriate.

The idea of pretrial detention is appropriate.

I don't expect any of them to bond out.

- Yeah, working with MPD, do you know, how did, you know, the Memphis Police Department find these individuals?

How did they know who was involved and when?

- So, I don't want to go into too much detail about investigative methods because- - Oh, come on.

[everybody laughs] - Well, the investigation is still ongoing, you know.

As we said at the press conference the other day, we expect more indictments to come.

I mean, many more indictments to come and there are still people out there that we're, you know, gonna try to target with this operation.

But you know, there's different forms of surveillance.

There's video, you know, you find cars and you can track the cars to individuals.

You know, once you start getting a few people, then you can check their associates to see what others are.

So, I don't want to go into too much detail, but it was, I think a real case of one of my prosecutors, Forrest Edwards in particular, working very, very closely with the MGU, the Multi-Agency Gang Unit and working collaboratively to follow up on these investigative leads.

- Other efforts like that, I mean are under, I mean like, and some of the things right now that are really, you know, carjackings, auto thefts, auto break-ins, are there efforts like, without giving away too much, are there efforts, these kind of multi-agency efforts focused on those as well?

- Yes, yes, there are.

There are some multi-agency efforts focused on those.

There's also, I'm talking with Judge Sugarmon about a specialized docket for these car burglaries and auto thefts.

- That involve juveniles?

- Yes, that involve juveniles, yes.

And then there are other initiatives like that.

- Coming back with just a couple of minutes left here to the judicial commissioners in the setting of bail.

One thing that changed in February, and you may have touched on this, but I, it's one that people I've heard, people get very fired up about is that in February with the changes to bail, now a person's ability to pay or their income level would be a factor in setting bail.

Critics have said, "Well, now people who go in who don't have any money, they're getting out," you know, because they can't pay and their history, their repeat offenses, their, who they are, all the other factors are being ignored.

It's just about what they can pay.

- That is absolutely not true.

I mean, we really need to clear this up.

In fact, the statistics show that since the new bail hearing has been put in place, average bail amount for violent offenses has actually gone up significantly while average bail amount for nonviolent offenses has gone down.

And I think that's exactly what people expect, right?

So, it's actually the opposite of what I think the critics are saying out there.

And just think about it right now, do you want a situation in which two defendants commit the same crime with the same criminal history?

One of them is making a hundred and fifty thousand a year.

One of them is making twenty thousand a year.

They get the exact same bail, and then, one of them bonds out and gets to live their life for the 18 months it takes for their case to be disposed of.

And the other languishes in 201 Poplar only because one is poor and one is not.

That is not what the Constitution says.

That is not what fairness says.

And I don't think people wants to think about that, really think that's a good idea?

- And that, again, that consideration does not somehow stand above the severity of the act and so on.

- Of course, not.

- No, okay.

- And I think the criminal history is the key thing.

If the person's a repeat offender, then we're more likely to think they're a danger to the community or likely to skip town, we're more likely to do pretrial detention.

- Yeah, and with apologies to Julia, with just two minutes left, the other thing, the focus on the judicial commissioners has been very helpful conversation.

I think Julia did some months ago.

I mean, some people are saying, "Well, no one knows, even knows their names," I mean we, their names are public and you wrote an article about who these people are, and so on, but is there enough transparency around the decision-making and the considerations that the judicial commissioners and the judges above them are making just from your seat?

Does the public have the right to know more, given there's such a focus?

- Sure.

- And maybe would that not help diffuse some of the confusion and misinformation?

- I'm always in favor of more transparency.

So, you know, I'm not opposed to any of that.

I think given the staggering amount of misinformation that's out there right now, then it probably would help.

I also say that, you know, Julia's done a good job, not only about judicial commissioners, but also about judges in general on the trial dock and in the backlog, and I think, you know, it's appropriate that we shine a light on that.

- Can, and part of what the light that Julia at work has shined is that not very many cases get heard or certainly finished every year, is there more that needs to be done and more that your office can do to put either more pressure on the judges to go faster or at least to- Even pulling together the information that Julia pulled together was an immense amount of work because there isn't really, there aren't good records around this.

- Well, that last point is about data, which I think is absolutely crucial.

We don't have good data and I'm, I've hired a new chief data officer, created a position for the first time and I'm in this partnership with this national group called Justice Innovation Labs.

And we are working on getting our data better and that will help with what we call time to disposition.

How can we get the cases resolved quicker?

It's a big focus of our office.

- All right, we are out of time.

Again, thanks very much, Steve Mulroy.

Thank you, Julia.

Again, we are taping on Wednesday morning.

This, obviously, if you're watching it on Friday.

Next week, Mayor of Germantown, Mike Palazzolo is along with Brent Taylor, State Senator.

And after that, a series of mayoral candidates like we did, Frank Colvett last week.

We're trying to get to all of them before early voting in August.

Thanks very much, and we'll see you next week.

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