Ben Berkstresser

Ben Berkstresser, Webster County Prosecutor

In January, the Chief Justice of the Missouri Supreme Court announced new rules requiring judges to first consider non-monetary conditions for pretrial release, aiming to reduce court costs for low-income defendants.

During his State of the Judiciary address in January, Missouri Supreme Court Chief Justice Zel Fischer stated judges will still be able to set bail if needed, but only at an amount necessary to ensure either public safety or that the defendant will appear in court. The changes, which will go into effect on July 1, have raised some concerns for Webster County Prosecuting Attorney Ben Berkstresser, who has been conducting his own research into the new laws.

"This is a Supreme Court change," said Berkstresser. “There was no input from me, no input from anybody in Webster County specifically. The Supreme Court mandated this change. We are required to follow the rules and procedures that they have issued.”

With these rules comes changes to bonds and how requests for a warrant are issued. Those rules include Rule 22.04, Rule 33.01, Rule 33.05 and Rule 33.06. Rule 22.04 addresses Felonies — Warrants of Arrest (when issued) and states when a complaint is filed pursuant to Rule 22.02 and sufficient facts have been stated to show probable cause that a felony has been committed, a summons shall be issued unless the court finds there are reasonable grounds to believe the defendant will not appear upon the summons or the defendant poses a danger to a crime victim, the community or any other person. If the court so finds, a warrant of arrest for the defendant may be issued.

“Rule 22.04 focuses on the warrants,” said Berkstresser. “Rule 33.01, 33.05 and 33.06 are all dealing with this presumption that everybody gets to walk out of jail after 24 hours. Since there is a presumption, the Supreme Court wanted to give the judges some guidance and some tools to, what they believe, protect the public. That is Rule 33.01 specifically as to conditions for release.”

According to Rule 33.01(Rights to Release Conditions), a defendant charged with a bailable offense shall be entitled to be released from custody pending trial or other stage of the criminal proceedings. The defendant’s release shall be upon the following conditions:

1.) The defendant will appear in the court in which the case is prosecuted or appealed from time to time as required to answer the criminal charge;

2.) The defendant will submit to the orders, judgment and sentence, and process of the court having jurisdiction over the defendant;

3.) The defendant shall not commit any new offenses and shall not tamper with any victim or witness in the case, nor have any person do so on the defendant’s behalf; and

4.) The defendant will comply fully with any and all conditions imposed by the court in granting release.

The conditions in Rule 33.01 are somewhat similar to additional requirements made on defendants, Berkstresser noted, including GPS monitoring, alcohol monitoring, contact provisions and finding treatment. Instead of paying a bondsman, Berkstresser said he believes the Supreme Court’s theory is the defendant will spend their money to get these other services and these other services are supposed to protect the community.

Berkstresser said with the rules before, it was presumed that if someone committed a felony, a warrant and bond were appropriate. He said the presumption now is that while there is probable cause that a felony has been committed, there is not a presumption of danger or failure to appear from the defendant, and instead there is a presumption the defendant will appear and they are safe to the community.

"The bond and warrant are there to protect the community and ensure the defendant will return," said Berkstresser. "Those are the two purposes of the bond. By not requiring a bond, they’re saying, 'Well, this person is not a danger.’ I believe there's probable cause that if someone committed a felony, then they present a danger. They still enjoy that presumption of innocence. They don’t lose that by having a warrant or bond, but the warrant or bond protects me and you and it will make sure they come back for their case.”

In addition, Berkstresser said with the new rules, instead of placing emphasis on the protection part of the bond, the emphasis goes to the state.

“The state has the responsibility of proving why they believe the person is a threat or will not appear for a summons,” said Berkstresser. “The state has to prove why a bond or a warrant is necessary. Instead of the defendant having to prove, 'Hey I’m not a threat,' or 'I will return,' now it's on the state to prove they are a threat. We have abandoned the idea that someone who has been alleged of a felony is an inherent danger to the community. That premise is what we have existed on since the beginning of our criminal justice in the state of Missouri.”

Berkstresser said the state has the responsibility to show additional facts, outside of the allegations against the defendant. He gave an example if someone has been alleged of  beating his wife and was under the influence of alcohol; now, those allegations aren’t enough to get a warrant long term.

"The rule specifically requires in the probable cause statement that you tell why a person will not appear on a summons, so it presumes they are going to get a summons and you have to say why they shouldn’t get a summons," said Berkstresser. "Reasons they wouldn’t get one would be they’re already on probation or parole, they've got other cases pending or they failed to appear in other cases. Law enforcement has 24 hours to compile an investigation to state reasons why a bond or warrant is appropriate.”

Berkstresser said law enforcement will be asked to do the investigation, write the report and examine court records to determine if there is a possibility of a failure to appear. He has been working on a letter to send out to local law enforcement regarding the new rule changes.

"I started trying to identify reasons a person is a danger," said Berkstresser. "I am going to instruct each law enforcement agency to put their number one reason is that probable cause exists to believe this person committed a felony and that we believe they are inherently dangerous because there’s evidence to support the committed a felony."

The changes will also impact local judges, according to Berkstresser, in regards to decisions on bonds and conditions. For as long as he has been a prosecutor, Berkstresser said he will receive a probable cause statement and review it, then make a decision whether or not a summons or a warrant is appropriate. If he believes a warrant is appropriate, he will file an arraignment sheet, which includes if a bond has been requested, how much is on the request and why it has been requested. With the software system they have, Berkstresser said he has easier access to court records and criminal history, where he can look over how many times a person has failed to appear in court or what they have been convicted of in other cases.

"With this information, I can make suggestions to the judge," said Berkstresser. “These are only suggestions, but by in large they follow my suggestions. Now I don’t think I’m able to make any suggestions. I think that I can present suggestions. Before I would suggest an amount and I still think I can suggest stuff, but at this point I think all the decision and genesis of all the decision with regards to bond  or not bond and conditions or not conditions, I think are going to fall entirely on the judges. Before judges relied somewhat on the prosecutor to provide information to make those decisions, but now I will be able to provide them a little information. However, I will not be in the same point in the process.”

Berkstresser noted that his job, along with law enforcement, will be responsible for providing information on whether the defendant is a danger to the community or whether they will return for a summons. He added himself, law enforcement and the judges are still doing as much research as they can on the new rules and have a better understanding of them.

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