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Lady Justice perched atop the Nevada Supreme Court building in Las Vegas as seen on Wednesday, Dec. 19, 2018. (Jeff Scheid/The Nevada Independent)

An hour of combative and at-times feisty oral arguments between public defenders and prosecutors played out before the Nevada Supreme Court on Wednesday in a case that could have major implications for the use of cash bail in the state.

Attorneys for the Clark County public defender’s office faced off with their counterparts in the Clark County district attorney’s office in Carson City over a pair of consolidated cases that public defenders hope to use to set a major precedent and add substantial restrictions on the use of cash bail for pretrial detention.

The cases revolve around the pretrial detention of two men: 58-year-old Jose Valdez-Jimenez, accused of stealing thousands of dollars worth of merchandise from several Las Vegas Victoria’s Secret stores in 2018, and Aaron Frye, a California man charged with several counts of armed robbery after an alleged bank robbery in 2018.

Both men were assessed cash bail as a condition of pretrial release ($40,000 for Valdez-Jimenez and $250,000 for Frye), and neither have been able to pay, meaning both have been detained in the Clark County Detention Center since their arrest last year.

Although both men have recently reached plea deals with prosecutors, their pretrial detainment and assessed cash bail were the subject of the oral arguments before the seven-member court on Wednesday. 

Nancy Lemke, a public defender and attorney for Valdez-Jimenez and Frye, told the judges at the outset that her arguments were not aimed at convincing the court to find the cash bail system unconstitutional, but rather that she was asking the court to find that the use of cash bail in courtrooms throughout Clark County needs substantial restructuring and guidance from the state’s highest court — especially in cases where a grand jury returns an indictment and no modifications are made to bail settings. 

“It’s a one-sided ex parte presentation as to the need for money bail and what the implications of that may or may not be,” she said. “(The) defendant’s not there, counsel is not there, there is no adversarial process.”

The scheduled hour of arguments centered around two topic areas defined by the court in an earlier order: whether due process and equal protection rights were violated through the use of an individualized bail hearing, and whether the initial bail settings were unconstitutional because they were made in the absence of Valdez-Jimenez and Frye without an adversarial hearing.

Lemke said that prosecutors in Clark County often begin detention hearings with a request for monetary bail that essentially functions as a “non-transparent, de facto detention order” issued by judges that did not, in certain circumstances, take into consideration the ability of the defendant to post bail or other factors for pretrial release. She said the ability of a wealthy person to more easily post money bail compared to indigent defendants raises questions about the constitutionality of the system.

“I’m not saying that you can’t use money bail; of course, you can use money bail,” she said. “But if it’s going to be detention mechanism, it must be preceded by a request by a prosecutor for detention, and then a showing by the prosecutor that the detention is necessary to manage concerns of flight risk and community safety. And if that doesn’t happen…then we start talking about release conditions, of which money bail can be one.”

“I can’t emphasize it enough,” she added. “I’m not talking about the merits of the underlying decision, I’m talking about the process by which it was decided.”

But Chief Deputy District Attorney Steven Owens pushed back forcefully on those arguments, saying the state believed that both defendants were given many opportunities to ask for changes in bail amounts throughout the process, from initial arraignment in Justice Court to the first court appearances in District Court after the return of a grand jury indictment.

He said the assertion that bail amounts were based only on a person’s ability to repay the amount was false, saying that initial bail amounts for both Valdez-Jimeniz and Frye deviated from standard bail schedule because of their risks to re-offend and pose a danger to the public.

“I couldn’t have asked for two better cases to emphasize to the court the risk and danger to the public, if ever there was grounds to have that criteria supersede the ability to pay,” he said. “These are the cases.”

Owens also defended allegations that bail was being used as a “de facto” detention order against those without the ability to pay, saying that judges had the ability to raise bail amounts for wealthy defendants as an assessment of their ability to post bail.

“You can have bail set at an unaffordable amount for a wealthy person the same as you can have for an indigent person,” he said. “I don’t see any equal protection clause argument here. There is no discriminatory purpose. There is a disparate impact because some people live their lives in a way that they can give assurances that they will be a good risk, that they’re released to society and will return to court. Other people do not live their life that way, and they represent a very poor risk.”

But Owens’s arguments drew some pushback from several of the judges on the court, notably in several exchanges with Justice Elissa Cadish, including a question about whether the case should be declared moot because the defendants had already pled guilty.

“The federal court didn’t hesitate to dismiss in a minute because the defendants pled guilty,” he said. “Which begs the question, why are we here today on this case? It’s a year old. Why has new life been breathed into it?”

“Respectfully, because we thought it was worth arguing over,” Cadish replied.

Owens also tangled with Justice James Hardesty, who asked the deputy district attorney to square some of his statements on bail with a 1927 state Supreme Court decision which in part stated that “bail must not be in a prohibitory amount, more than the accused can reasonably be expected under the circumstances to give.”

Owens said that particular case was not “well reasoned” or “reliable” and that most state courts relied on other jurisprudence from other courts that “excessive bail” was not directly linked to a person’s ability to pay and was conditioned on public safety and other factors.

Several judges also questioned the scope of what the plaintiffs were asking the court to do. Justice Kristina Pickering questioned the standing of the case, expressing concern that both plaintiffs had already pled guilty and that the court’s actions, as requested by the public defenders, could quickly lead the court to legislating from the bench as opposed to interpreting the constitutionality of laws or decisions by lower courts. 

“On this record, I’m concerned about being asked to kind of legislate or rule-draft rather than decide an individual live case,” she said. “The lawyer in me is concerned about that.”

Although they were not present at oral arguments, attorneys for Civil Rights Corp., a national civil rights and bail reform nonprofit, intervened in the case and helped arrange an amicus brief by several law professors. The group has intervened in several states and jurisdictions challenging use of cash bail for pretrial detention, including in Georgia, Illinois, California and Louisiana

The American Bail Association, a trade organization representing the bail bonds industry, submitted an amicus brief prior to the oral arguments in support of the district attorney’s office and the state’s use of bail.

The litigation filed on behalf of Valdez-Jimenez predates efforts by some criminal justice advocates (including the public defender’s office) to reform the use of cash bail in the 2019 Legislature, but which ultimately fell short. A last-minute bill (AB125) opposed by bail bonds agents, district attorneys, local governments and even some bail reform advocates failed to advance, with legislators ultimately only passing a resolution creating an interim study on pretrial release and the use of bail to be completed before the 2021 Legislature begins.

Mark Hernandez contributed to this story.

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