Analysis of Michael Rosfeld’s Bail Determination

On the morning of June 27, 2018, the East Pittsburgh Police Officer that shot and killed Antwon Rose was charged with criminal homicide. A preliminary arraignment was held sometime after 7 a.m. at the Allegheny County Municipal Court.

Magisterial District Judge Regis Welsh  presided over the arraignment and set an unsecured $250,000.00 bail. To gain release and, in effect, post bail, Rosfeld had to sign the county’s bail forms and acknowledge general conditions of bail that include refraining from further criminal activity and witness intimidation. No cash or property had to posted with a surety or the county to fulfill bail requirements. Initial media reports of Rosfeld’s bail failed to acknowledge the significance of the “unsecured” designation.

Hypothetically, if bail was set at $250,000.00, straight cash, the accused would have the ability to post the full sum of cash with the courts or post real property as collateral so long as it has sufficient equity (> $250,000.00). If these two options could not be met by the defendant’s network of family or friends, then they could employ the services of a surety bail agent. A bail agent in Pennsylvania can charge anywhere between 5-15% of the full value of the bond to post. Five percent, in this calculation, would cost $12,500.00 to post. It is also significant to note that a surety bail agent would also request indemnity from the accused’s cosigners (parties interested in securing the defendant’s release). These cosigners would agree to indemnify the bail agent in the event that the Defendant’s bail is forfeited for failure to appear.

Could bail have been denied?

Perhaps. In this case, Rosfeld was charged, generally, with homicide. In Pennsylvania, homicide can be defined as 1st, 2nd, or 3rd degree murder or voluntary or involuntary manslaughter. First degree murder requires the prosecution to demonstrate the defendant had the specific intent to kill with malice. First degree murder is punishable by death penalty or life imprisonment.

Pennsylvania law provides the following:

42 PA § 5701.  Right to bail.
All prisoners shall be bailable by sufficient sureties, unless:
(1)  for capital offenses or for offenses for which the maximum sentence is life imprisonment; or
(2)  no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.

Whether to set bail with monetary or non monetary conditions is a matter of judicial discretion, unless first degree murder is charged. In its press conference, the Allegheny County District Attorney’s office represented that they strongly opposed Rosfeld’s bail, perhaps either seeking a cash requirement or denial under the inference of first degree murder from facts described in the affidavit of probable cause. Rosfeld’s defense counsel was present and presumably prepared to downplay any potential likelihood that charges against his client could fit the definition of 1st degree murder. Lastly, for the judge’s consideration, is the influence of Allegheny County’s Pretrial Services Department.

Allegheny County has a vast pretrial services department that performs risk assessment of defendants and plays a significant role in the bail determination process. It has yet to be reported whether an assessment was performed of Rosfeld. Allegheny County’s risk assessments typically favor the defendant by encouraging non-monetary release. Risk assessment score and recommendations are provided to Allegheny County judges at the time of arraignment.

The controversial bail outcome that permitted Rosfeld to be released on an unsecured, self-signature, bail falls in line with Allegheny County’s trend to avoid the use of monetary bail. These types of bail reform efforts have been implemented in surrounding states and have drawn criticism for being inconsiderate of victims and their families. In the case of Antwon Rose, his family and a large, vocal supportive community have strongly expressed that their opposition to the outcome of Rosfeld’s preliminary arraignment.

As for Judge Welsh, he acted within his judicial discretion, but we can only speculate to his reasoning (flight risk, ties to the community, no criminal history, no threat to victims/witnesses), as there is almost certainly not a formal opinion from a municipal court arraignment. The district attorney’s office has hinted that they may revisit the bail issue in the future, perhaps after further investigation is conducted to evaluate circumstantial evidence of Rosfeld’s intent. If the prosecution petitions the court to have bail reconsidered, the matter will be brought before a common pleas court judge.

Image credit: stockstudio44 / 123RF Stock Photo

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