by: CHRISTOPHER ONSTOTT Northeast Portland resident Chuck Gaylord kept delaying his vacation because he wanted to testify against a man who stole his identity, but the defendant failed to appear -- twice. Most defendants in Multnomah County can fail to appear three times without being held in jail. 

Chuck Gaylord figured that if the man who stole from him didn't show up at trial, he'd be caught and held in jail. But Northeast Portland resident Gaylord was way wrong.

After police arrested Emil Mussman for theft and use of Gaylord's credit card this winter, prosecutors convinced Gaylord to delay a planned multi-month cross-country trip so he could testify at the trial.

Gaylord changed his plans and showed up at court Dec. 13, along with the judge and prosecutors. But defendant Mussman failed to appear. Mussman eventually was found and a new trial date was set for early January. So Gaylord delayed his trip a few more weeks.

Mussman showed up the first day of his new trial, but not for the second. Told that Mussman had overslept, the judge held off finishing the trial until the afternoon, but Mussman never did show, according to prosecutors. He was convicted in his absence, but the whole experience left an exasperated Gaylord wondering what a defendant who fails to appear would have to do to be held in jail, and who is taking into account the effect on crime victims.

'I postponed a trip and now he's not there and it didn't seem to be a big deal as far as the prosecutors or judge or anybody, other than me,' Gaylord says.

That's because it isn't, says Charles French, Multnomah County deputy district attorney.

'The system is skewed toward release,' French says. Most defendants are released on their own recognizance pending trial, and are allowed four failures to appear - if they are found - before being held in jail.

'There is a consequence,' French says. 'The consequence is they find out the system is going to let them go.'

In fact, the message to many offenders who miss their court dates is precisely the opposite of swift and certain consequences, which criminal justice experts say is the key to changing criminal behavior.

Alex Tabarrok, an economist at George Mason University in Fairfax, Va., headed the largest study ever conducted on failure-to-appear cases, surveying more than 40,000 cases around the country. He says the chance of a failure-to-appear defendant avoiding court for more than a year is 50 percent lower in states that allow bail bondsmen.

'It's basic incentives,' Tabarrok says. 'The bounty hunters, unlike police, have an incentive to make sure their fugitives show up on time, and if they fail to show up, they have an incentive to recapture them.'

It isn't only crime victims who suffer when a defendant fails to appear in court. It's also a major financial burden for the criminal justice system. A 2006 study done for Multnomah County estimated the cost of each defendant failing to appear at $1,320.

Gail Meyer, lobbyist for the Oregon Criminal Defense Lawyers Association, says bringing bail bondsmen back to Oregon would be a mistake. In states where bondsmen are allowed, Meyer says, they contribute heavily to the reelection campaigns of judges and then are given preferential treatment when their clients don't appear, such as extra time to capture defendants before bail is defaulted.

'When you consider the options,' Meyer says, 'what we have makes the best sense.'

Don Trapp, Multnomah County community justice manager, is in charge of the county's pretrial release program. His department and the county sheriff's Close Street Supervision program are charged with trying to determine which defendants awaiting trial should be released, and under what conditions.

About three of four defendants are released pending trial, Trapp says. Most are released on their own recognizance, and some with conditions such as no contact with their victims. About a third of those released have supervision, such as being required to check in once a week with a pretrial release officer.

Trapp says he believes a system that relies on supervision rather than bail is more just.

'You don't want people in jail (before trial) simply because they don't have any money, because then you're criminalizing poverty, and it's inherently discriminatory,' he says.

- Peter Korn

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