Mimesis Law
22 July 2017

Philip Brailsford Is Not Getting What Everyone Else Gets

Mar. 18, 2016 (Mimesis Law) — Unlike most cops who shoot to death unarmed citizens, things aren’t going so well for Mesa, Arizona police officer Philip Brailsford. First, he was charged with second degree murder. On top of that, his police chief has now publicly stated he is concerned about Brailsford’s actions, so Brailsford is looking at losing his job as well.

Brailsford’s only break thus far seems to come in the context of release conditions:

A judge declined a widow’s request to set a six-figure bond Tuesday for an Arizona police officer charged with murder in the fatal shooting of her unarmed husband two months ago at a hotel.

Brailsford’s victim’s widow made what sounds like a pretty compelling argument for a bond:

Daniel Shaver’s widow told the judge that failing to set a bond for Brailsford sends a message that her husband’s life didn’t matter. Her lawyer complained that the officer was not actually arrested on a charge for which any other person would have been jailed.

“The no-bond (decision) sends a message that Daniel Shaver, that his life had no value,” said Laney Sweet, Shaver’s wife.

Arizona has some really wonderful case law about imposing bail. There are all sorts of great little quotes about its sole purpose being to secure a person’s attendance at court. There are snippets that say how any amount greater than necessary to serve that purpose, no matter how miniscule, is unconstitutional. Looking just at the great language courts use discussing bail, you’d almost think that everyone facing charges in Arizona is likely to be released. In practice, though, the case law might as well not exist.

Arizona’s legislators have made people charged with all sorts of offenses ineligible for bond. It certainly isn’t because every person charged with each of those offenses just so happens to be a flight risk. Moreover, for those who are eligible, bonds designed to keep people in custody rather than assure their attendance in the future are exceedingly common, especially when those people happen to have some criminal history, even if it’s minor. There isn’t a judge around who doesn’t realize people in custody are more likely to plead than their released counterparts, and some judges even acknowledge the practice of setting small bonds to ever so gently nudge a case into a non-trial resolution.

In most cases, bond is just another little way to stick it to a defendant, but Brailsford’s case isn’t most cases. He already had a leg up because prosecutors didn’t want him to have a bond. Instead, they just didn’t want him to possess a gun. That surely had a big impact on what happened, as the judge went along with it. In so doing, he also gave what seems to be a nod to the case law on point:

Maricopa County Superior Court Judge Sam Myers put the officer on supervised release and barred him for possessing a gun, which prosecutors requested instead of bond. Myers said pretrial release conditions are not meant to punish people charged with crimes but are intended to ensure their appearance in court in the future. The judge said Brailsford posed no risk of skipping out.

The judge is definitely right about the reason for pretrial release conditions, and he’s probably right about Brailsford not being a flight risk. Sadly, that’s both a refreshing change of pace and a sign of a clear double standard.

Over the years, Judge Myers has undoubtedly set his fair share of bonds for people who weren’t actually flight risks at all. Sure, he may have been able to justify his suspicions regarding the people potentially fleeing by looking at the seriousness of the charges or other factors, but few crimes are more serious than murder. That’s just what Marc Victor, Brailsford’s victim’s lawyer, argued at Brailsford’s hearing as part of his request for a substantial bond. Even more notably, Marc brought up a case he had in front of Judge Myers at some point, a marijuana case where a bondsman was apparently standing right there and Judge Myers still took the defendant in on a cash bond.

I doubt anyone can even say with a straight face that Brailsford is likely to get anything even remotely approximating the experience most Maricopa County second degree murder defendant have. What’s interesting is that that may actually make him less of a flight risk.

Whoever supervises Brailsford pending trial is probably much less likely to play games and try to flaunt his or her authority over Brailsford than your average defendant. Accordingly, Brailsford is less likely to get hauled in on stupid technical violations. More importantly, Brailsford is probably not looking at nearly as harsh a plea as most defendants in his situation would get, which further lessens the likelihood he’ll bolt. It almost makes you wonder if a lot of people who are harshly shuffled through the system might be flight risks because of the way they’re treated, not vice versa, and that they might just be less likely to flee if everyone didn’t make their lives hell worrying about them fleeing.

When cops get charged, it’s always an interesting flip flop from the normal. That’s something else the widow’s lawyer was quick to note:

Marc Victor, an attorney representing Shaver’s widow, said it looks as though the officer was being treated differently than any other person facing a murder charge.

“The victim wants Officer Brailsford treated like everyone else,” Victor said as he asked for a six-figure bond.

There’s also a reverse from the norm anytime a defense attorney represents a victim. Marc has no doubt fought countless times to have his own criminal defendant clients treated differently in a good way, so it’s funny to see him wanting someone to get the “normal treatment.” The situation becomes disturbing, however, when you think about the fact that an upset victim in a murder case, someone whose innocent husband was just snatched from her, would only be asking that the murderer get what everyone else gets.

Looking at it that way should put into perspective just how flawed the system really is when it comes to bail, and just how meaningless the case law on point is when the defendant isn’t a cop and the prosecutor isn’t somewhat sympathetic.

2 Comments on this post.

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  • Rick
    20 March 2016 at 2:37 pm - Reply

    But he’s not “just anybody else.” Like it or not he’s a cop and like it or not he’s going to get special treatment. Would you get the same treatment as I would or would you get treated differently? I’d be willing to bet you’d get special treatment as well as would a clerk at the courthouse. Is it just a coincidence that so many children of movie stars become movie stars themselves? Doctors treat each other with a whole different level of care than the rest of us get. It’s the way the world works. I’m not saying it’s right, just the way it is.

  • Mitch Brailsford Learns About Cameras and Accountability
    22 March 2016 at 8:58 am - Reply

    […] not as a special privilege as it is being used here. Bail is supposed to ensure that the defendant appears for trial, and not as punishment. In most cases, murder suspects are given an excessively high bail, more as […]