Lawman's Slaying Spurs Analysis Of Bail Decision

By THOMAS W. KRAUSE The Tampa Tribune

Published: Aug 18, 2007

TAMPA - Gov. Charlie Crist directed his general counsel Friday to analyze the decision made by Hillsborough County Circuit Judge Manuel Lopez to release Michael Allen Phillips on $30,000 bail two months before he fatally shot a Hillsborough County sheriff's sergeant.

Erin Isaac, a Crist spokeswoman, said she did not know to what extent Lopez's decision would be looked into or how long it would take. Isaac did not have any specifics on what the inquiry would entail, how long it would last or what - if any - sanctions could result.

Early Wednesday, Phillips, 24, was shot and killed by sheriff's office sharpshooters after authorities identified him as the man who gunned down Sgt. Ron Hamlin Harrison, 55.

Lopez has declined several requests for an interview. On Thursday, he read from a prepared statement written in longhand. He said that only under unusual circumstances does the law allow a judge to hold someone without bail.

The Phillips case "was not one of those circumstances," he said.

Florida law states that a judge can withhold bail if there is probable cause that a defendant committed a new crime while out on bail. Phillips was on bail facing charges of fleeing from an officer. While out on that bail, he was arrested on a new charge accusing him of using a hard-toothed rake to strike a man.

Initially, Lopez held Phillips without bail. About four months later, however, Phillips' attorney argued that the state's case against Phillips was weak. Phillips was acting in self-defense after he was attacked by two men, the attorney said.

Lopez set bail for Phillips at $30,000. The law states he could have continued to hold Phillips without bail.

'They Are Presumed Innocent'

Although the governor has ordered an analysis, it is unclear what jurisdiction Crist's general counsel has in the case.

The Judicial Qualifications Commission is the state arm that reviews judicial misconduct, said JQC Executive Director Brooke Kennerly. The governor can appoint judges, but the JQC asks for discipline. The Legislature has the power to impeach.

"As far as making any recommendations for taking disciplinary action, the JQC is it," Kennerly said.

Setting bail is considered judicial discretion. The JQC reviews misconduct by judges, Kennerly said, it does not second-guess their decisions. Although the judge could have held Phillips without bail, he did not have to.

Debra Behnke, a fellow circuit judge, came to Lopez's defense. The criticism of Lopez's decision is unwarranted, she said. Every criminal judge, at one point or another, has set bail for a defendant who committed a new crime while out on bail. Every case is different, she said.

"I've had a million of those, and I've let some out, depending on the circumstances," Behnke said. "The rule is: Everyone is entitled to bail. They are presumed innocent."

Other Cases Examined

Transcripts were made available Friday for two other cases where Lopez set bail for defendants with violent histories.

In December, while Richard Alton Morse Jr. was serving probation for stealing a purse from a car, he was arrested and charged with aggravated assault. The new arrest violated his probation.

By Jan. 26, prosecutors still had not filed formal charges against Morse. They were having a difficult time finding a homeless witness. Lopez released Morse on his own recognizance. Two days later, Morse was arrested again and charged with killing the missing witness.

The Tampa Tribune previously reported that prosecutors had asked for more time to find the witness, but according to the transcript released Friday, prosecutors did not object to Morse's release.

Prosecutors did vehemently object in a case where Lopez set bail for a man who was charged in January with stabbing his nephew to death with a steak knife.

Edwin Kendrick had two convictions for assault and was on probation when he was arrested on a charge of second-degree murder.

Three months later, in a volatile bail hearing, Kendrick's attorney told the judge that Kendrick's nephew previously had threatened Kendrick. The nephew was armed with bolt cutters on the night he died, Kendrick's attorney said. The nephew was stabbed in the side. The knife pierced the bottom of his heart.

Kendrick claimed he did not remember the stabbing and does not think he was the one who stabbed his nephew, his attorney told Lopez.

Assistant State Attorney Sean Keefe told the judge that the nephew, before he died, identified Kendrick as the man who stabbed him.

Lopez said he thought the state's case might not hold water at trial. He suggested that he might release Kendrick on his own recognizance despite the murder charge and probation violation.

Keefe told the judge that Kendrick was a "habitual violent offender" who killed a man while on probation.

"The state, with all the possible strength it can muster, objects violently to this defendant getting any bond," Keefe said, according to the transcript.

Lopez said he knew that he could hold Kendrick but, given the facts, he questioned whether it would be just. Lopez decided to release Kendrick on his own recognizance with an ankle monitor.

At a second hearing, two days later, Lopez said he might have "rushed to judgment." He said he doubted Kendrick's contention that he didn't remember the incident and felt some bail money was needed.

In a court transcript, Lopez said he would increase the bail to $20,000 because he was worried about Kendrick's background.

Kendrick remains free pending his trial.

Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.