A pretrial service agency labeled Darrell Brooks a high risk for release weeks before the Waukesha parade tragedy
This story was republished on Jan. 20, 2022 to make it free for all
Darrell Brooks Jr. had been assessed as a fairly high risk for release from jail two weeks before he allegedly drove through Waukesha's Christmas parade, killing six people and injuring dozens more.
Brooks' release on $1,000 bail has people outraged over the subsequent Nov. 21 tragedy, critiquing an often overlooked and misunderstood part of the criminal justice system — the pretrial risk assessment.
Brooks was arrested in Milwaukee County after police say he punched and ran over a former girlfriend on Nov. 2.
Before his initial appearance on Nov. 5, he was evaluated by JusticePoint, the agency that contracts with Milwaukee County to provide pretrial screening and monitoring services. It conducted a Pretrial Risk Assessment Report on Brooks on Nov. 5.
Such reports are also called Public Safety Assessments and commonly referred to as PSAs. Milwaukee County began implementing them a decade ago.
More:What we know about the Waukesha Christmas Parade attack
A tool for the assessment finds where a defendant's likelihood of failing to reappear in court, on the y axis, intersects with his likelihood of new criminal activityon the x axis.
Factors cited for his score included that he was charged with a violent crime while he was out on bail for a prior charge and that he had been convicted and incarcerated for earlier violent crimes.
In his favor was that he had no violations for failure to appear in other cases during the past two years.
The report also noted Brooks "is diagnosed with a serious and persistent illness in which he is not receiving treatment for."
Police reports from the Nov. 2 incident indicate Brooks suffers from mental health issues for which he is supposed to be taking medication. The exact diagnosis was redacted in the reports, obtained last week by the Milwaukee Journal Sentinel.
The PSA also flagged Brooks as a risk to commit a new violent crime. That factor is listed as either a yes or a no, and is not part of the other color scale matrix.
The grid goes from light green (low risk) in one corner, to red (higher risk) in the other corner.
Brooks landed in the red zone, yet his bail was set at $1,000, and he was ordered to have the highest level of supervision by JusticePoint if he made bail.
Technically, that followed the PSA recommendation — Level 5 supervision, and cash bail.
District Attorney John Chisholm has said the $1,000 recommended by someone in his office was "inappropriately low." It's not clear whether the amount came from Michelle Grasso, the assistant prosecutor assigned to Brooks' case, or the more experienced prosecutor in court for Brooks' initial appearance, Carole Manchester, who could have sought a higher bail.
Chisholm is expected to discuss specifics of how the $1,000 bail was recommended when he speaks to the County Board on Thursday.
Since the parade tragedy, people have been looking for someone or some institution to blame.
Conservative news outlets raised suspicion about a string of criminal justice players, and people held signs outside the Waukesha County Courthouse reading, "Hold Milwaukee County Courts accountable!"
Was Grasso or Manchester responsible? Or was it Milwaukee County Court Commissioner Cedric Cornwall, who could have ignored the state's recommendation and set a higher bail at the November initial appearance?
What about Milwaukee County Circuit Judge David Feiss? He set a $500 bail for Brooks in February after his speedy trial demand in a 2020 case could not be met. Perhaps the fact Brooks continued to make court appearances after posting the $500 influenced prosecutors' recommendation of $1,000 bail in the Nov. 2 case.
Or was it Waukesha Court Commissioner David Herring, who, before Brooks was released on the $1,000 bail, saw Brooks on Nov. 16 on a failure to appear in a child support matter? A state lawyer requested Brooks be jailed on that matter. Brooks said — via phone from the Waukesha County Jail — he missed some payments and hearings because he had been jailed in Georgia.
Herring set another hearing for Dec. 22, during which he wanted proof of Brooks' Georgia incarceration, and released Brooks from the Waukesha warrant on his own recognizance.
Later that day, someone posted Brooks' $1,000 bail in the Milwaukee case and he was released.
The Pretrial Risk Assessment Reports are based on a defendant's past court and arrest records and a brief interview by JusticePoint staff.
Defense lawyer Anthony Cotton said he does not rely on them because he always knows way more about his clients than the reports indicate. He said in his experience, court commissioners who preside at initial appearances almost always refer to the reports.
John Birdsall, another veteran defense attorney, said, "Nobody looks at those things.
"They're like comfort food, something to fall back on" when commissioners' decisions align with the reports. Birdsall's impression is that most often commissioners make those decisions based on their gut reactions and experience, not the JusticePoint risk score.
He admitted defense lawyers cite the reports when they suggest release without bail is appropriate, in cases where a prosecutor disagrees but doesn't think the reports themselves carry much weight with commissioners and judges.
One reason is the real gist of the risk tool's predictions take place in a kind of "black box" of proprietary process.
According to a report by University of California Irvine researchers, "Risk factor counts are weighted by an integer multiplier and summed to create a risk score. Several sets of adjacent scores are collapsed together into one score to produce a final 6-point risk scale for each of the outcomes."
Defense lawyer Craig Mastantuono finds the PSA anything but mysterious, noting it's based on years of research on real defendants and how they behaved on pretrial release, in other words, evidence.
He said perhaps more people within the criminal justice system need more training about how to use the PSA, and reminded that even with full familiarity, the PSA has limits.
"It's an additional tool, and not meant to be determinative," he said. "It never removes the discretion of lawyers and commissioners."
"The Waukesha tragedy was the product of a mistake in a human system where mistakes happen with some frequency and don’t produce the horrible, tragic outcome here; the loss of life and injury are unspeakable," Mastantuono said.
He called it wrong to blame efforts at bail reform.
"That didn’t produce this dangerous person being out; a mistake did, which occurred despite — not because of — the current bail and risk assessment system (PSA) in place here and recommended in this case.
"We should always look for answers when things go wrong, but we must focus on what should have occurred and how to prevent terrible outcomes like this, rather than to knee-jerk this and jeopardize efforts in the past 10 years at making the criminal justice system more fair and effective."
Contact Bruce Vielmetti at (414) 224-2187 or email@example.com. Follow him on Twitter at @ProofHearsay.