Dear Eli,

As I read your piece on the horrific murder in South Park I had a feeling not unlike what I experienced on September 11th (i.e. as I reeled at the tragedy I also felt the looming disaster of the destructive reaction).

This sickening feeling increased as you continued to bandy about the name of Judge Brian Gain on any radio program that would have him. Sadly, it is only in our fantasies that every tragedy is susceptible to a feel good fix in which the evil doer is quickly identified and taken out by the hero.

News flash, criminal defendants and the mentally ill are already among the most neglected and abused members of our society and most Judges are already so fearful of releasing the accused prior to trial that they preemptively jail almost everyone the Prosecutor asks them to hold. This fear comes almost entirely from the unfair reporting that follows upon the very rare instance when a violent offense is committed by a someone released in these circumstance.

Judge Gain's sin is that he followed the law and he was not clairvoyant. No Judge is free to jail anybody that makes them nervous, instead, they must enforce the provisions of the Washington State Court Rules. In this case CrR 3.2 applied, and that rule "presumes" the release of the defendant. The police had suspicions about Mr. Kalebu in relation to an arson but the law requires that there be "probable cause" to link him to the crime or the court is powerless to hold him. Does Mr. Sanders really think that people should be jailed based upon suspicion alone?

Let's not forget that the Court knew Mr. Kalebu had been diagnosed with a severe mental illness. The public tends to see the mentally ill as frightening bogeymen, however, if you work in criminal justice, as I did for fifteen years, you see them as the sad sacks continually jailed mostly for being the screw ups that they most often are.

As much as we might like to have the entire "suspicious" and "mentally ill" population preemptively incarcerated because they might do something in the future, we simply don't have the space, even in the most imprisoned country in the world. It is an inconvenient truth that predicting future dangerousness is like forecasting the future of the stock market, if someones says they can do it with any great certainty, they are lying.

Predicting future dangerous is a task that is essentially impossible, yet judges are asked to do it everyday and if they get it wrong bet on the media (Eli Sanders) trying to see that they lose their jobs. Where are the stories about the literally thousands of people (many of them ultimately found to be not guilty) that Judge Gain allowed to await their trials while still going to work and living with their families rather than held in the grim confines of King County Jail? As a judge, Brian Gain has a better batting average than anybody in the majors but one strike is his ticket to news coverage.

Probably the largest single study ever done tracking the violent re-offense of mentally ill offenders was done based upon tracking inmates released from a facility in Ontario in a town named Penetanguishene. The Penetanguishene study shows that schizophrenia, Mr. Kalebu's diagnosis, is inversely correlated with re-offense. In other words, the best science suggests that an offender with schizophrenia is less likely to violently re-offend than a non-mentally ill offender.

Maybe it just doesn't make a good headline, "Judge complies with letter and spirit of the law and resists temptation to cover his ass by jailing everyone prior to trial".

Douglass
Beacon Hill