An early-career prosecutor in the middle of a jury trial with two dozen felony cases to review made the decision to recommend a $1,000 bail for an earlier case involving Waukesha parade suspect Darrell Brooks, District Attorney John Chisholm said Thursday.
The assigned prosecutor, whom Chisholm did not name but is listed in court records as Michelle Grasso, looked at Brooks’ most recently posted bail — $500 — and doubled it, Chisholm said. She did not have access to the risk assessment when she made that decision because it had not yet been uploaded to the case management system, he added.
“You had a young ADA trying to do the very best she could under really difficult circumstances and she made a mistake,” Chisholm told the County Board’s Judiciary, Safety and General Services Committee in his first public appearance since the Nov. 21 attack.
He said he was angry, frustrated and “extraordinarily saddened by the circumstances that have impacted so many people” in Waukesha and Milwaukee County.
Chisholm added: “I want to make it clear that there are explanations for what happened. There are no excuses.”
Brooks, 39, was released on $1,000 bail five days before prosecutors say he sped down the Waukesha Christmas Parade route, killing six and injuring dozens of others.
‘Inappropriately low’ bail in Darrell Brooks’ earlier case
On Thursday, Chisholm reiterated comments from a statement he issued soon after the parade attack, saying the $1,000 bail the prosecutor recommended in the earlier felony domestic violence case was “inappropriately low.”
“I believe that that was inappropriately low given the context of what we knew about the defendant,” he said.
A Journal Sentinel analysis of similar open cases charged this year found Brooks’ bail was considerably lower than the median of $5,000.
Court Commissioner Cedric Cornwall approved the $1,000 bail.
Cornwall was not present at Thursday’s meeting. Chief Judge Mary Triggiano said, in general, court officials hear arguments for bail from the prosecutors and defense attorneys and may have the risk assessment in front of them.
“It is on them to take all of that information into consideration and set appropriate bail, and again, they do that day in and day out, so it is in their professional discretion after the district attorney’s office and public defenders give them as much information as possible,” she said.
Cornwall did have access to the risk assessment for Brooks, Chisholm said in an interview with the Journal Sentinel.
The veteran prosecutor, Carole Manchester, who was staffing intake court also should have had access to it, he said.
The assessment obtained this week by the Milwaukee Journal Sentinel, showed Brooks to be fairly high risk for release from jail. The assessments, used in courts around the country, have been criticized for reinforcing bias and not being individualized.
Chisholm said his internal review would be done soon but did not provide a specific date. It will include an examination of bails in similar cases, as well as other bails recommended by Grasso, he said. A deeper, different process, known as a sentinel event review, is planned once the criminal cases against Brooks resolve.
Asked if he planned to discipline anyone in his office, Chisholm said he does not discuss administrative or disciplinary matters on cases publicly.
Pandemic court backlog a factor
The earlier $500 bail amount from a 2020 case that was used by the prosecutor to recommend the $1,000 came about, in part, because of a backlog of cases caused by the COVID-19 pandemic.
The chief judge, Triggiano, said the courts currently have a felony backlog of about 1,600 cases and a misdemeanor backlog of about 3,100 cases. Adding to the challenge, the district attorney’s office has lost six assistant prosecutors since 2018.
“We are chipping away at it but not very fast,” Triggiano said. “We are looking at even more solutions to make sure that we can address that, including shifting some of our judges from our current divisions into the criminal division, bringing in reserve judges.”
The bail in Brooks’ 2020 case had started at $10,000 but had dropped to $7,500 and then $500 after the court system could not meet Brooks’ speedy trial demand.
Under state law, after a speedy trial demand is entered, a trial date has to be set within 90 days. If the prosecution or the courts cannot meet that timeline, the defendant has to be released on bail.
In Brooks’ case, another jury trial was in progress in the same court and his case was postponed. At that time, after hearing arguments from Brooks’ attorney, Milwaukee County Circuit Judge David Feiss dropped his bail to $500 and Brooks posted it Feb. 21, online records show.
The jury trial being heard in Feiss’ courtroom was older than Brooks’ 2020 charges and involved more serious charges than his case, Triggiano said.
In Wisconsin, judges can only use cash bail amounts to help ensure a person’s reappearance in court. When setting other terms of bail, such as ordering a defendant not to have contact with a victim, a judge can then consider protecting the community from danger and preventing witness intimidation.
Wisconsin is one of a handful of states with cash bail, meaning people have to post the full amount in cash to be released from custody.
Among the questions county supervisors asked over an hour and a half was why Brooks’ vehicle was not taken away from him after the early November domestic violence case. Brooks was charged with punching a woman in the face and then running over her with an SUV at a Milwaukee gas station.
Chisholm acknowledged the vehicle could have been impounded and his office is reviewing if that would have been appropriate in this case.
He was also asked about Brooks’ open warrant out of Nevada and what effect that could have on the bail amount. In 2016, police in the city of Sparks arrested him, saying he failed to obey sex offender laws. He posted bail but later failed to appear in court.
Chisholm said it was his understanding the warrant was not included in an informational criminal background packet for Brooks. Those packets are compiled by the Milwaukee County Sheriff’s Office, which confirmed that the office was not aware of the warrant because it was not in the database.
In general, some jurisdictions may decide not to submit low-level warrants to the national law enforcement database if they do not intend to pay to extradite, or return, the person back to face charges where the warrant was issued, Chisholm said.
Gov. Evers: ‘Obvious’ Brooks should not have been out
The Waukesha tragedy has led to political calls ranging from new bail proposals at the state level to removing Chisholm from office.
Earlier Thursday, Gov. Tony Evers said he did not believe his office had received any formal complaints against Chisholm.
“But the fact of the matter is, it’s just obvious to everybody in this room that (Brooks) should not have been out on bail,” Evers told reporters at an event in Milwaukee.
“He had a violent past,” he said. “So we are working with the county district attorney to investigate what’s happening.”
The governor can get rid of a district attorney only if a local taxpayer brings specific, written allegations against the officeholder. Then the governor can take action only “for cause,” which means the district attorney must be guilty of “inefficiency, neglect of duty, official misconduct or malfeasance in office.”
In an interview, Chisholm said he is not going to resign. He confirmed Evers had sent him a letter asking him to do a thorough, transparent review into what happened so that it does not occur again.
During the county meeting, the district attorney suggested a change to the state’s preventive detention law, calling the current version “unworkable.” The law allows for dangerous people to be held without bail for certain violent crimes but requires a separate hearing within 10 days.
At the hearing, prosecutors must convince a judge the defendant committed the qualifying crime, and that release, even with conditions, would not adequately protect the community.
Both factors need to be proven at a hearing by clear and convincing evidence, a much higher standard than probable cause.
Chisholm compared the hearing to the equivalent of a court trial. Around the state, prosecutors often find it easier to request high cash bails instead.
“The simple solution is to allow us to argue honestly to the judge, to the court commissioner, why it is that we think somebody should not go back out into the community,” Chisholm said. “Then that person would be detained, that case would be expedited and you would prioritize getting that case resolved.”
Other states have preventive statutes like that and Wisconsin could draw from those examples, he said. The law would still need to define the burden of proof required for preventive detention to ensure the defendant’s civil liberties are respected, Chisholm said.
Brooks’ mother: Mental illness improperly treated
The officials’ comments came one day after Brooks’ mother released a statement on behalf of her family offering her condolences to the victims of the parade attack and saying her son had mental health problems and been failed by the criminal justice system.
“We are deeply saddened and our hearts are torn to pieces over what happened on a day set aside for a community to come together and celebrate,” Dawn Woods wrote. “What was meant to be a joyous day became a day of tragedy and heartache. A day that we wish with all our heart would have never happened.”
Brooks had struggled with mental illness from a young age, she said. He had received treatment, including counseling and medication.
“When he became an adult a decision was made that he no longer suffered from a mental illness,” she wrote. “That decision left him with no insurance or financial means to pay for medication and when determined necessary counseling.”
She added in her statement: “Instead of offering help and resources to combat the problem, a jail cell was given. Over and over again. When mental illness is not properly treated the person becomes sicker and sicker. It doesn’t go away once a person becomes an adult. We are not making excuses but we believe what has happened is because he was not given the help and resources he needed.”
Journal Sentinel reporter Sophie Carson contributed to this story.
Contact Ashley Luthern at firstname.lastname@example.org. Follow her on Twitter at @aluthern.