Recent Broward Law Blog Features

Sunday, March 29, 2009

Legal and Lower Bond Set in Illegal Abortion Case

This Sun Sentinel Photo, published online last nite, shows Lisa Pryor, left, a cousin, and Natira Williams, sister, of defendant Tonuya Rainey, who is charged with illegally terminating a pregnancy and improper disposal of human remains, reacting to Judge Matthew Destry's decision to reduce Rainey's bail to $14,000 from $185,000.

When First Appearance Magistrate Jay Hurley raised the bond on an inmate accused of illegally aborting a fetus, calling it murder, Public Defender Howard Finkelstein shot back that the judge was acting ultra vires, outside the scope of his authority, injecting his personal feelings into a legal fact finding tour. Correctly, the PD assigned the case made an ore tenus motion to recuse.

First of all, since the Broward County first appearance system only sets a preliminary bond, an inmate has an immediate second chance to get a new bond set by the jurist assigned their case. Thus, if a good attorney can secure an instant hearing before the judge so assigned the matter in chief, an appeal to the DCA may be unnecessary.
In this instance, Judge Hurley says it was too much like a murder case to leave the bond too low. But the State had not so charged and there was no evidence to sustain his personal judgment. The PD justly appealed. The Attorney General rightly remained silent, in effect arguing that there 'was no there there.' Returned to Judge Destry, the bond was properly reduced.
What makes the case intriguing is what makes Finkelstein so special as a Public Defender. He does not subscribe to the morning line. He does not do what makes him popular. As he challenges the ‘moral’ decision of Judge Hurley, he makes a ‘moral’ decision of his own, willing to buck the public adulation currently saluting Judge Hurley’s impressive early track record at reducing jail populations. He did not do what was fashionable and popular. He did what was legally correct.

Finkelstein’s challenge sends a recurring message that this public defender will not abide by comments, which demean and disgrace his clients for their gender, ethnicity, socio-economic status, or human condition. For Finkelstein, once again it is simply not politics as usual. Because he is going to remain a watchdog and sentinel to guard the rights of those too often forgotten by the system.

Judge Hurley's higher bond may have answered to his own higher authority. But in a small way the Fourth DCA reminded the judge that abortions are not illegal, and have not been since Roe v. Wade some 40 years ago.
Ironically, as it says on the back of my citizen's rights card, the final determinant of what charges to be filed against anyone is not the police or the judge but the state attorney. And if facts are elicited which later lead to an amended charge, a more serious one, her bond can indeed be raised again. That will ultimately depend on what the state attorney does with the case. So the last chapter on Ms. Rainey may not be written yet. Just because the police concluded one thing does not guarantee that a state attorney in the filing division will not conclude another.


  1. Norm:
    Lets put the anti-Catholic stereotyping aside and look at the facts of this case:
    The day before the daughter gave birth the mother said that she couldn't have the baby because the mother could not afford it.
    The following day the forced her daughter to consume Ru44 pills which induced labor.
    The daughter and her brother claim that she gave birth to a live breathing and kicking baby and it remained alive up unitl the mother (defendant) took the living baby into a bathroom and returned with a dead baby.
    The mother then put it in a shoe box and threw it in the trash.
    You state that Judge Hurley was answering to a "higher authority". You also claim that the 4th DCA reminded him of the meaning of Roe v. Wade. Huh? Have you been hitting the Acapulco Gold again?
    Other than the defendant desiring an abortion, where is Roe v. Wade in this? The 4th DCA never talked about it.
    The 4 th DCA merely stated that the record was not clear on the statutory reasons for the higher bond. They did not find a problem with the amount.
    Judge Hurley is bright enough to understand that he cannot "charge" anyone, but he certainly can consider all of the facts.
    If someone were arrested on a simple battery, but the attached reports showed that the victim died at the scene, should the judge ignore that fact? Perhaps keep the bond at $250 for a simple battery?
    Of course not.
    In the instant case, the judge found that the defendant killed a living baby. Thats why he said that though she was not charged with murder, her actions were "tantamount to murder".
    Not all Catholics are right wingers as Finkelstein claimed. This case was about murder, not religion or morals or any other diversionary issue.
    Oh, if Hurley had just said about two more sentences and made a better record....

  2. Thanks for the post. I do not think my comments were anti Catholic stereotyping. In fact, the final remarks I made were that Judge Hurley may indeed be vindicated by the State Attorney if their office elects to file more serious charges against the mother. We will see in the next month. And indeed Judge Hurley has the individual discretion to go beyond the bond recommended in the probable cause affidavit. Perhaps you are right that he failed to perfect it on the record, but then he failed to do what he needed to do which made the appeal proper, though I admit I was surprised to see that the Attorney General did not more vigorously fulfill their statutory duty to back a jurist's decision. That may be a story in itself for a later date. Thanks for posting.