Retired judge says new judge’s bond court debut was ‘a prime example of judicial activism’

It has been a week since Cook County Circuit Judge Kelly McCarthy’s debut in Chicago’s felony bond court left many people scratching their heads.

As CWBChicago reported, McCarthy set bail for 27 defendants during the relatively short court session and sent 22 of the defendants home on recognizance bonds, including two who were charged with robbery. She refused to grant prosecutors’ requests to have several defendants held without bail, including one charged with attempted murder for allegedly beating, stomping, and choking his pregnant girlfriend for 20 minutes. And she even took the unprecedented step of ordering a robbery victim to show up in court to be served with an order to protect the man who allegedly robbed her at gunpoint.

Even experienced lawyers, judges, and court workers were baffled by McCarthy’s performance.

“Our system of justice is not designed for judges to be political activists from the bench,” a retired Cook County circuit judge told CWBChicago this week.

The former jurist, who served for years in the criminal courthouse at 26th and California, said McCarthy appeared to be a “judge who was comporting herself on the bench as a political activist and trying to make a political statement. Just plain wrong!”

After all of those years in Chicago’s criminal courthouse, the judge, who spoke on the condition of anonymity, said “there isn’t much I have not witnessed.”

In one unusual case last week, prosecutors told McCarthy a convicted felon admitted that a gun police found inside a purse in a car he was driving was his. Despite the alleged admission, McCarthy ruled there was no probable cause for the man to be detained because “obviously it’s not his purse.”

“That was a prime example of judicial activism,” the retired judge said. “Probable cause … is the lowest legal threshold and is almost impossible not to meet. If the proffer indicated that the defendant admitted it was his gun in the purse and he was in the car or had the keys to the car or was in close proximity to the car, that not only establishes probable cause to detain … but it potentially would be enough on its own for a conviction on a legal standard of proof beyond a reasonable doubt.”

McCarthy’s willingness to send people accused of violent crimes like robbery home with no cash bail required raised many eyebrows. And her refusal to hold a man without bail after he allegedly beat and choked his 17-year-old pregnant girlfriend for an estimated 20 minutes raised even more.

“Judges must balance the law and the facts, the nature of the charges, the defendant’s criminal history and background, the mitigation, public safety, and the presumption of innocence very carefully,” the retired judge said. “Set the bail based on the law and facts without bias, prejudice, or passion, and all in the world is well.”

At least some of McCarthy’s decisions may not have been in line with state law, the former judge continued. Like when she refused to hold defendants without bail for violating bond terms in pending felony cases.

“If a judge is following the law which they took an oath to do, the judge MUST set no bail and send it to the courtroom where the case is pending. The judge has no discretion,” according to the retired jurist. Those no-bail holds keep individuals in custody until they appear before their judge for a review — usually within a day or two.

Speaking about the overall state of affairs as Cook County enters its fifth year of bond reform, the retired judge was clear: “It appears to me that bails are set now without any regard whatsoever to the protection of the public … the recidivism rate, as your organization so deftly points out every day, is way too high.”

As of Thursday afternoon, November 4, McCarthy had not presided over any city bond court sessions since last Friday.

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CWBChicago was created in 2013 by five residents of Wrigleyville and Boystown who had grown disheartened with inaccurate information that was being provided at local Community Policing (CAPS) meetings. Our coverage area has expanded since then to cover Lincoln Park, River North, The Loop, Uptown, and other North Side Areas. But our mission remains unchanged: To provide original public safety reporting with better context and greater detail than mainstream media outlets. Our editorial email address is news@cwbchicago.com