It’s official – O’Dwyer out on bond, Magistrate’s Order sets conditions

I’ve had the good luck to have the best partner-in-blog ever – and the bad luck to know all too well how Ashton’s rants can be disturbing, at best.  Consequently, this is my first post on USA v O’Dwyer despite my long-time support of alternatives to incarceration, particularly for those with an apparent need for health and/or mental health services.

Magistrate Judge Karen Hayes, however, merits recognition and I wanted to tip my hat to her sensible, yet sensitive, handling of the situation.  The Minute Entry documenting her decision noted, “Counsel for the Government object to the setting of a bond”.  It also noted the Magistrate granted the Government’s “motion for pretrial psychiatric and psychological examination for competency to stand trial” and set other conditions for O’Dwyer’s release to home confinement on an unsecured $100,000 appearance bond:

The special conditions of bond are: 1) Pretrial Services supervision ; 2) avoid all contact, directly or indirectly, with any persons who are or who may become a victim or potential witness in the subject investigation or prosecution, including but not limited to written or e-mail communication; 3) possess no firearms or dangerous weapons; 4) refrain from any use of alcohol; 5) home incarceration with electronic monitoring; 6) undergo medical or psychiatric treatment as recommended by Dr. Mallik to be paid for by the government; and 7) give prior notification to the court security should he be required to appear in court. A representative of the Federal Public Defender’s office will escort him to court and will remain with him until his court business is completed.

Although the point was totally lost on Mississippi Magistrate Robert Walker in Politz v Nationwide, Magistrate Hayes wisely ordered, “Counsel for both parties…to confer on the selection of the doctor to do the evaluation”.  Not only will it take an experienced and perceptive mental health professional to evaluate what Sock Puppet described as, “Mental illness superimposed on extreme assholery”, the reliability of the results will be in large part due to the extent Ashton has confidence in the competence of the evaluator.

Improperly incarcerating individuals with health problems, alcoholism and diabetes for example, or mental illness has been an issue in Mississippi for years.  SB2906 is among the bills still alive in the 2010 session of the Mississippi Legislature.  It has been passed by both the Chambers and the version passed by the House has been returned to the Senate for concurrence. The House version excluded individuals arrested on a felony from the authority the legislation provides law enforcement to commit an individual to a treatment facility for evaluation instead of confining the individual in a jail or other correctional facility. However, those charged with a felony can be moved to a treatment facility on court order.

Although I suspect it is more likely that Ashton would have talked someone to death rather than inflict bodily harm, Magistrate Hayes’s Order balances concern for public safety with concern for the individual’s best interest.  SB2906 assures all have the benefit of such balanced concern.  Hopefully, Ashton will take his release as a challenge and demonstrate the legislation is long overdue by fully complying with the conditions set for his bond.