Family Bond

    Whether you're a fan of Janet Evanovich's Stephanie Plum or Dog the Bounty Hunter, bail occupies a central place in criminal law as entertainment. Through literature, we can take discussions about bail back to Robin Hood. During my day job as a magistrate for the criminal courts of my county, I spend a fair amount of my day thinking about bail for particular defendants. Today, however, I'd like to widen the lens and, largely through the writings of bail reform advocate, Tim Schnacke, look at the history of bail development. 

    Let's jump way back to the Anglo-Saxon days of England. Those Germanic tribes were family-linked league of clans. Among clans, blood feuds and tribal warfare were the means to settle disputes. Kinsmen resolved the wrongs of kinsmen. This adjudication technique, however, proved brutal and inefficient. Eventually as system emerged establishing payment of a wergeld or man-price for a wrongful life-taking, the price dependent on a person's social standing. Over time, a tiered system emerged of valuations for death as well as a measure for injury and other wrongs. A complex restitution system replaced the frequent clash of clans. 

    Tribes lived close to one another. Justice was local and the resolution of these cases could be expected to be swift. In this familial, land-bound society, pre-trial detention was little needed. 

    Family members pledged to guarantee both the defendant's appearance in "court" and to pay the penalty should he default. The amount of the pledge was set at the amount of the debt which would be owed. The promise served to allay an Anglo-Saxon's concern that someone may flee to avoid paying the penalty. The familial willingness to bear the burden also fit within the collective worldview of a tribal culture. 

    This Anglo-Saxon system should not be confused with contemporary bail. As noted, the family members were largely pledging to pay the debt upon default rather than posting money to secure the accused's release from custody. The germ of the modern idea of a surety, a third-party, obligating himself on behalf of an accused, however, was becoming established in the forerunner to the English common law. The word "bail" stems from a Latin word baiulare, to carry a burden. 

    With the Norman conquest, however, the nature of English law changed. Justice gradually became more an affair of the state and less an individual settling of accounts. Capital punishment and other sanctions replaced the restitution schedule of the wergeld. Along with changing punishments, notions about who should remain free pending adjudication also transformed. The first to lose a right to liberty included those accused of homicide and those charged with violating the royal forest (We did make it back to Robin Hood.) Norman judges rode a circuit from shire to shire handling cases. Outlying jurisdictions may wait months between judicial calls. The shire-reeve "sheriff" became charged with guaranteeing a defendant's appearance upon the judge's arrival. Jails were miserable and costly. The delay from arrest to trial necessitated some form of pretrial release. 

    People were still land bound. Personal recognizance guaranteed by the pledge of family became the key to the jail door for most people accused of wrong doings. 

Sheriffs, however, as the bail setters were ripe for corruption. In 1274, Edward I sent commissioners throughout the realm to ask questions of knights and freemen. The commissioners recorded the answers. Although most questions dealt with landholdings and related to taxation, the commissioners also delved into criminal justice. Edward I learned of two abuses by many sheriffs: some defendants who should be released were required to pay money; and some defendants who, because of the offense, should not be freed were released upon payment of large sums of money. 

    Bail law developed to extend royal control over shire-reeves' discretion and potential corruption. Culminating in 1689, the English Bill of Rights stated that "excessive bail ought not to be required." The phrase used is similar to the language of the Eighth Amendment to the U.S. Constitution.

    This shouldn't be surprising as English law sailed to America with the establishment of the colonies. Although the ideas of recognizance and community responsibility traveled to the new world, the changing times brought the necessity for a new system to emerge. 

    As punishments changed from the Anglo-Saxon notion of restitution to death, mutilation or imprisonment, the possibility of flight to avoid the consequences grew. Similarly, as society moved away from the pledge equaling the amount of the debt, it became harder to quantify, with accuracy, the exact amount of money to require as bail. The accused in America found it easier to flee troubles and escape to the western frontier. Finally, as people became more itinerant, finding kinsmen and neighbors willing to pledge also became more challenging. 

    Out of necessity grew a commercial opportunity. Businessman willing to pledge money to guarantee a defendant's appearance at court emerged. They, of course, charged a fee for their service. The first commercial bondsman in the United States was reported to be Pete McDonough who in 1896 established his bond business out of his San Francisco saloon near the Hall of Justice. 

    In 1274, Edward I wrangled with right-sizing the jail population. He sought a just mechanism for determining who gets out and who stays in custody. Bail reform advocates still grapple with these issues. Lawsuits and legislative fixes abound. We are still trying to get it right. 

    Until next time. 

Jumping In

     Today marks my inaugural blog with the SleuthSayers. I'm honored to have been asked to pen a periodic contribution to the blog. I know a few of my fellow SleuthSayers, maintain an epistolary relationship with a few more (a fancy way, I'm told, to say that we email on occasion), and read the works of many others. I've enjoyed the thoughtful content of the blog for years. I hope that I may, now and again, contribute something of value to this page.

     My name is Mark Thielman. I work as a criminal magistrate in Fort Worth, Texas. When I tell people that I am a magistrate, they usually give me an earnest nod of the head as a sign of understanding.

    "Magistrate" sounds familiar. Yet like "comptroller" or "aide-de-camp", it is a government job whose definition hangs just past the periphery of people's knowledge. Most don't really know exactly what I do. What the heck is a magistrate? 

    A fair question. In Texas, the duties of a magistrate are defined in the Code of Criminal Procedure:

It is the duty of a magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment. 

     Reading that as I type, it makes my job sound TV worthy: preserving peace, suppressing crime, bringing offenders to punishment. Maybe I don't need a robe, but rather a cape.

    The truth of course is a little more mundane. Texas magistrates are a creation of statute. What a magistrate can do in my county varies from those in Dallas or Houston. Putting aside the details, I think of myself as a substitute teacher for the criminal judges of my county. We cover the routine responsibilities of the elected judges, giving them more time for the Solomonic duties the voters expect.

    Most of my day is spent meeting the most recently arrested individuals in Tarrant County. When someone in jail turns on the crime spigot, my work begins. A steady line of individuals parade before me. I review arrests, inform defendants of their rights, determine whether they need a court-appointed attorney, and set bail. I work out of a cinderblock room in the basement of the jail; it bears more resemblance to a tornado shelter than the oak-paneled, flag-bedecked courtrooms of television. (Or I did. Since the start of the pandemic I've met my defendants through a closed-circuit television system.)

    I encounter a great many interesting people in a day. A few are frequent fliers; we know each other by name. Many are big-eyed newcomers, terrified about their circumstances. Some cry. Many are hungover. I try to speak more slowly to them, since their brains obviously take an extra beat to catch up. Many believe, despite the admonishments about their right to remain silent, that if they just explain themselves one more time, the misunderstanding in which they find themselves will just go away. (Practice tip: Generally it won't.)

    Occasionally someone gets angry about the news I'm dispensing. They are, however, the exception. I'm continually surprised at the number of defendants who are polite and respectful. If only you'd acted this way on the streets, I often think, you wouldn't be standing here talking to me now. Of course, they are mostly sober when I see them and that likely helps their impulse control. I afford them as much courtesy as I can. I always try to remember that all of them, even the guy who gave a fake name hoping to beat his parole warrant, are having a bad day. The detention officer and I are the only people in the room who awoke planning to go to jail that day. And we both get to leave at will.

    I like to think of myself as a writer with a magistration hobby. I write mostly short stories. The next one will be out in the May/June issue of Alfred Hitchcock Mystery Magazine. I've written historicals and contemporaries, humorous and serious stories, puzzle mysteries and, occasionally a poignant tale of someone for whom life hasn't quite worked out like they planned.

    Although I suppose that I will someday, I've never written a story set in magistration court. Magistration is what I do to fill the time between sessions crafting fiction. There is, however, some overlap. Both my writing job and my magistrate hobby require me to sit in my chair and keep typing, even on days when I don't want to.

    My crack staff helps me to look smarter at both my jobs. My writing editorial assistant is pictured here.

    She taught me the important rules for writing, the two commands: "Sit" and, "Stay".  Together we keep trying.

    Until next time.

Contributors' Notes: Malice Domestic: Mystery Most Historical

The annual Malice Domestic mystery convention ranks among my favorite events of the year (major holidays included!), and it’s always a pleasure to see how warmly the Malice community welcomes and celebrates crime writers and readers both old and new. As other people have often said, Malice is like family, and as the convention opens today in Bethesda, Maryland, it's certainly going to feel for many of us like a family reunion.
I’ve been honored and humbled by the generosity and goodwill the Malice community has offered to me and my work over the years, and last summer, it was a real pleasure to have the opportunity to give back. For several months I served with Martin Edwards and Kathy Lynn Emerson as part of the selection committee for the anthology Malice Domestic 12: Mystery Most Historical, reading and scoring more than 100 stories, all blind submissions. The final slate of authors, including a few invited guests of honor, featured John Betancourt, Susanna Calkins, Carla Coupe, Susan Daly, P.A. De Voe, Michael Dell, Carole Nelson Douglas, Martin Edwards, Kathy Lynn Emerson, Peter Hayes, Nancy Herriman, K.B. Inglee, Su Kopil, Vivian Lawry, Edith Maxwell, Catriona McPherson, Liz Milliron, Kathryn O’Sullivan, K.B. Owen, Valerie O Patterson, Keenan Powell, Mindy Quigley, Verena Rose, Shawn Reilly Simmons, Marcia Talley, Mark Thielman, Victoria Thompson, Charles Todd, Elaine Viets, and Georgia Wilson.

Tonight’s 9 p.m. welcome reception at Malice includes the anthology’s launch and signing. As a preview of that event and the anthology in general, I reached out to a handful of contributors and asked them to introduce their selected stories—with particular attention to each story’s time (given the historical theme) and perhaps to the inspirations behind the story, the genesis of the tale.

Hope you enjoy some of these glimpses, and hope you’ll check out the full anthology as well—available here or at Malice itself, of course.

Susanna Calkins, “The Trial of Madame Pelletier”
“The Trial of Madame Pelletier”—my first and only published short story—features the trial of a presumed poisoner in a small town in 1840s France. My story was inspired by a true cause célèbre, a real “trial of the century” that I had stumbled upon years ago when conducting research as a doctoral student in history. At the time, I’d been struck by how the “Lady Poisoner,” so dubbed by the press, had been tried twice, once as a criminal in the assize court at Limousin, and again as a woman in the court of public opinion. While my story differs dramatically from the trial that inspired it, I did want to convey that same sense of a woman being tried on many levels. Moreover, ever since I read Agatha Christie's “Witness for the Prosecution,” I have wanted to try my hand at a courtroom drama.

Carla Coupe, “Eating Crow”
“Eating Crow” is set in a bucolic Devonshire village in late 19th century England—the type of place whose photo graces a calendar for May or June. My protagonists, teenager Beryl Mayhew and her crow sidekick, Hermes, came to life in “As the Crow Flies” when the Chesapeake Crimes anthology Fur, Feathers, and Felonies (available spring 2018) asked for stories that featured an animal. Now I love dogs and cats, but wanted to write about something a little more unusual. An octopus? Nah, too limiting. As I looked out my office window, I saw some crows. Perfect! They’re intelligent and curious. As I researched just how intelligent crows are—I didn’t want Hermes to do something crows aren’t capable of—I was amazed at their cognitive abilities and complex social structure. In this story, Hermes is more of a foil than a sleuth—but I’m sure he would have solved the case if he could read!

P.A. De Voe, “The Unseen Opponent” (De Voe is also an Agatha Award finalist in the Best Children/Young Adult category for her book, Trapped: A Mei-hua Adventure)
Why this setting? I’m fascinated with China’s long, documented history and culture, so I placed “The Unseen Opponent” in early 15th Century Ming China. By this time, middle-class Han-Chinese women were embracing the tradition of foot-binding, called lotus feet, as the norm. Foot-binding made it impossible for women to walk without pain. At the same time, non-Han Chinese did not practice foot-binding, giving their women more freedom of movement. In researching for the story, I also discovered the Chinese developed an inflated ball used to play kick-ball or cu-ju in the earlier Tang Dynasty. Furthermore, playing the game of kick-ball had been popular among Chinese women—before foot-binding became prevalent. Information about the first inflated ball dove-tailed so well with my interest in foot-binding, that I knew I had to use the kick-ball game as the stage for my story. 

Liz Milliron, “Home Front Homicide”
“Home Front Homicide” takes place in Buffalo, NY in 1942, the early years of WWII. People forget, but with Bethlehem Steel right there, Buffalo was a big part of the war production. Bell Aircraft had a plant in Wheatfield, not far outside the city limits. My protagonist, Betty Ahern, works for Bell. She is very loosely based on my grandmother, who was a Bell employee during the war while my grandfather was in North Africa. Women in manufacturing was a new idea and not everyone liked it. So what would happen if the female-friendly shift supervisor was killed at the plant? Betty is supporting a family since her dad is disabled and her older brother is in the Pacific; she needs to find out and keep her job. My grandmother never solved a murder, but I’d like to think she’d be tickled at being the inspiration for the story.

Valerie O. Patterson, “Mr. Nakamura’s Garden”
Appropriately enough, the idea for “Mr. Nakamura’s Garden” came to me while I was attending last year’s Malice Domestic.  I read the announcement that the 12th Malice Domestic Anthology would be historical mysteries set before 1950. Already I was intrigued because I love historical mysteries.  I also happened to see an ad in the Malice booklet for Left Coast Crime, announcing that its next convention would be held in Honolulu, Hawaii, one of my favorite places.  My thoughts turned to Hawaii just before the bombing of Pearl Harbor and the US’s entry into WWII, a period I lectured about in a civil liberties class, a period rife with undercurrents.  Then, a voice came to me with a first line—“This is what the boy remembers”—and the whole story frame became clear.  As writers, we sometimes get lucky when the small pieces of story coalesce and capture a moment and, in this case, murder.

Keenan Powell, “The Velvet Slippers”
One autumn morning in 1895, aging housekeeper Mildred Munz slips out of Lawrence Fairweather’s bed and tiptoes towards the kitchen to warm his arsenic-laced porridge. Having devoted her life to service in Fairweather’s North Adams, Massachusetts mansion, her devotion became more personal when his wife died. His lover by night and servant by day, she is tired of waiting for the inheritance he promised so long ago. Her plans go awry when Lawrence’s greedy nephew, Edmund, catches her sneaking from the master bedroom. Lawrence surmises his own inheritance is in jeopardy, and noting his uncle’s failing health, he calls in a doctor.
This story was inspired by Victorian mansions I saw in North Adams during a genealogy research trip a few years ago.

Shawn Reilly Simmons, “You Always Hurt the One You Love”
I've had a fascination with gangsters since I was young. I saw The Godfather for the first time when I was twelve, and that experience influenced how I saw movies from that point forward. I remember being the only girl in school (in the mid-1980s) who looked forward to White Heat and The Public Enemy coming on TCM. My story, "You Always Hurt the One You Love," takes place in the 1940s and is inspired by my love of the gangster genre. I originally wrote the story to read at my first Noir at the Bar event in Washington D.C. this past summer. Encouraged by the positive response it received, I reworked it a bit and submitted it to the anthology. I'm thrilled my first ever gangster story appears alongside stories by authors I've long admired, and that I've paid personal tribute to a genre of which I'm a long-time fan.   

Mark Thielman, “The Measured Chest”
As a former prosecutor, my favorite cases almost always could be found at the intersection of a compelling victim and forensic evidence—a story to make the jury want to do right coupled with the proof to make a conviction possible. When crafting fiction, I try to combine both elements: a historical narrative to grab the reader’s interest paired with an application of forensic science.
In “The Measured Chest,” the captain of a U.S. naval sloop during the War of 1812 directs the ship’s carpenter to explain the disappearance of the purser. Was he murdered by a crew member or did he fall prey to the mysterious spirits which have long haunted sailors?

The inspiration for the story can be found in a two-thousand-year-old forensic science technique from India. Once read, I knew this bit of history needed to find its way into a mystery. The solution to “The Measured Ches” turns on a 19th Century re-imagining of this tale.

Victoria Thompson, “The Killing Game” (Thompson is also a finalist for the Agatha Award for Bet Historical Mystery for Murder in Morningside Heights)
The story takes place in New York in July 1917. It is a prequel of sorts to my new Counterfeit Lady Series, which debuts with City of Lies in November 2017. The characters are con artists, so the story revolves around The Killing Game con, so called because the mark thinks he’s going to make a killing on a fixed horse race. When someone is murdered and our heroine’s partner is falsely accused of the crime, Elizabeth must run another con to clear him and find the real killer.  The trick she uses is based on one used by “America’s Master Swindler” J.R. “Yellow Kid” Weil, as recounted in his autobiography.

Elaine Viets, “The Seven” (Viets is also this year's Malice Domestic Guest of Honor)
“The Seven,” my short story set in the early 1950s, is based on conversations overheard when I was growing up. We lived in a split-level in a new St. Louis suburb. My mother's friends would stop by for coffee, cake, and conversation. Thanks to a well-placed heating duct in my bedroom, I could listen to them talk about how trapped they felt as stay-at-home mothers. They'd had careers before marriage, and longed to return to the office, but their husbands decreed "no wife of mine will ever work," and the conventions supported that idea. Wives were supposed to be satisfied with "good providers" who gave them clothes, food, and well-furnished homes. I heard many of these women say, "I'd do anything to escape the house and go back to work." Would they go as far as the ladies in "The Seven"? Read it and see.

My Own Malice Schedule (Back to Art)

I'll be at the anthology event as well—in addition to several other officials events, thanks in part to my story "Parallel Play" having been named a finalist for this year's Agatha Award for Best Short Story, along with stories by fellow SleuthSayers Barb Goffman and B.K. Stevens! (You can read all of our stories through links at Malice Domestic's Agatha Awards page here.)

Below is my full schedule—and look forward this weekend to seeing all my Malice friends and to making some new friends too!

• Opening Ceremonies • Friday, April 28, 5 p.m.
• Welcome Reception & Anthology Signing for Malice Domestic 12: Mystery Most Historical (as part of editorial selection committee) • Friday, April 28, 9 p.m.
• Panel: “Make It Snappy: Agatha Best Short Story Nominees,” with Gretchen Archer, Barb Goffman, Edith Maxwell, and B.K. Stevens, moderated by Linda Landrigan • Saturday, April 29, 10 a.m.
• Agatha Awards Banquet • Saturday, April 29, 7 p.m.