A baby’s death, missing suspects, $500 bond: Dane County set the lowest bar for release in Wisconsin in a reckless homicide charge

A News 3 Investigates analysis of court cases and child maltreatment deaths in Wisconsin in 2020 reveals Dane County set the lowest bar for release in the state in two ways: first degree reckless homicide charges, and children's deaths from abuse or neglect

MADISON, Wis. — The headline in late 2020 came and went quietly: a young Dane County couple, a boyfriend charged with reckless homicide and a mother with child neglect in her baby’s death at just 7 weeks old.

In the months after the death in May, Arkeem Ashley, 26, and Esthefania Martinez, 22, had largely cooperated with the police investigation. Their criminal history: a single misdemeanor for Ashley, the boyfriend. It was months after the baby’s death that the charges came: the pandemic was ramping up, and the Madison Police Department referred charges to the Dane County district attorney without arresting them in December.

The couple appeared virtually in court a few weeks later when a Dane County court commissioner set a $500 signature bond–without electric monitoring. Ashley made a virtual court appearance in February.

Court officials and police haven’t seen them since.

Chief: Bond ‘unconscionably low’

When the couple missed a court date in June, a bench warrant was issued, and the U.S. Marshals eventually alerted. Madison police discovered they were missing in mid-July when a child said Ashley had sexually assaulted them years ago, opening a criminal case–except the suspect was nowhere to be found. Months later–this week–police put the call out to the public, prompting a wave of headlines and community outrage over the circumstances of their disappearance.

Madison’s police chief called the bond “unconscionably low,” adding he wasn’t blaming the courts but comparing it to his previous experiences as an officer in North Carolina.

“As someone who spent a large portion of my career actually investigating child deaths,” Shon Barnes said, “These are the cases that I dedicated basically my life to. To hear the bail was so low, it’s certainly disappointing. I think there’s been a lot of public reaction and anger to this case and they want to see those persons have their day in court, and I believe I do as well.”

For charges and similar deaths, Dane County set the lowest bar for release in the state

A News 3 Investigates analysis of court cases and child maltreatment deaths in Wisconsin in 2020 reveals Dane County set the lowest bar for release in the state in two ways: for cases where a first degree reckless homicide charge was used, as well as cases where criminal charges were brought in children’s deaths from abuse or neglect.

Ashley’s case was not the only time the Dane County court system set a $500 signature bond for a first degree reckless homicide charge in 2020–a charge used to accuse someone of acting with reckless disregard for human life, in a way they should have known would cause great harm. In 2020, the county used a $500 signature bond in three out of eight cases that brought the first degree reckless homicide charge.

As the pandemic ramped up, the county increased its already-heavy reliance on signature bonds to keep jail populations low to prevent Covid spread. Signature bonds allow a person to be released, usually with conditions, without paying the bond amount unless they fail to show up for court.

No other court in the state set conditions for release that low; the vast majority with that charge using high cash bail amounts instead–where a person must pay the entire amount before being released, and potentially forfeit if they are a no-show to court.

About 90% of the cases used cash bail (a few others still have active arrest warrants); about 70% of those with a cash bail were first set at $50,000 or higher for release.

“The decisions are made on a case by case basis using factors set by law,” Dane County judge John Hyland said in an email, the county’s presiding judge for its criminal division. “In general, our system in Dane County favors signature bonds, and I believe that practice is generally successful.  Frankly, if you search records I’m sure you will find cases where high cash bail has been set, posted, and still a defendant has not appeared in court.”

Wisconsin law only allows cash bail to be set in a way that best ensures a person’s return to court. All other considerations, like public safety, are handled through release conditions. In Dane County, bond conditions are set by judges or court commissioners after considering the district attorney and defense attorney’s recommendations (and often, a third-party public safety assessment, which the court said was not completed for Ashley or Martinez because they were not in custody.)

RELATED: A tale of two tragedies: How Wisconsin is sidestepping key recommendations in push for bail reform

“There are a number of factors under the statutes which go into the calculation of deciding whether cash bail or a signature bond is appropriate. The severity of the charge is only one of them,” Hyland noted. “The fact a case is under investigation for months and the suspect has not fled the jurisdiction would be another.”

Still, Dane County’s reliance on signature bonds in serious cases stands out.

In 2020, Milwaukee County had more than a third of the 143 first degree reckless homicide cases in Wisconsin. All of the county’s cases used cash bail set to at least $5,000; in about 80% of the cases, the cash bail amount was first set to at least $50,000. That’s in a county where district attorney John Chisholm came under fire after an early-career prosecutor in his office asked the court to set bail at $1,000 for Darrell Brooks, who is accused of going on to kill six and injure dozens more in last year’s parade tragedy in Waukesha.

Elsewhere in Wisconsin, signature bonds were used seven times in first degree reckless homicides outside Dane County, ranging from $5,000 to $1 million.

Dane County district attorney Ismael Ozanne cautioned against comparisons based only on bail amounts, bond conditions, and a specific charge like reckless homicide. (He didn’t provide an interview or answer additional questions over email).

“At the time of the incident and filing of the cases both individuals had little if any criminal history and did not have a history of missed court appearances,” he wrote in an email.

In child deaths from abuse or neglect, Dane County’s decision still stands out

Reckless homicide charges aren’t necessarily the best comparison, given how frequently they’re also used in cases like drug overdoses or deadly car crashes. However, while many of the 2020 criminal cases reviewed were circumstances distinctly different than two parents with minimal criminal histories, those that appeared comparable still included stricter conditions of release than Dane County.

For example, a Fond du Lac woman charged in 2020 with reckless homicide and child abuse had no criminal history when her 2-month-old baby stopped breathing and was rushed to the hospital with a fractured skull in 2018. She was held during the criminal process on a $500,000 cash bond; a few months ago, a jury found her guilty in the baby’s death.

In Milwaukee, a 22-year-old with one misdemeanor was held on a $250,000 cash bond for reckless homicide and child abuse after his girlfriend’s 4-year-old daughter was found dead with bruises, burns, and a bite mark on her body. The mother was also charged in the death and held on a $50,000 cash bond; both were later convicted.

In 2020, Martinez’ baby was one of 27 children in Wisconsin to die of substantiated abuse or neglect, according to a state report from the Wisconsin Department of Children and Families.

In nine of those cases, News 3 Investigates located and reviewed criminal charges.* Those nine cases do not include a number of cases that year where children were murdered in shootings or other incidents where suspects were later charged with intentional homicide.

Of those cases, usually including charges of either reckless homicide or child neglect resulting in death, Ashley and Martinez received the most lax release conditions.

In one other case in Wausau where a woman with no criminal history was charged with a felony in a baby’s death from an unsafe sleeping environment, the woman was released on a $500 cash bail combined with a $49,500 signature bond.

A Milwaukee woman with a minor past offense was released on a $5,000 cash bond when her baby was found dead in March, “dehydrated and emaciated”, according to reporting from the Journal Sentinel.

But in the rest of the cases, including a few with minimal to no criminal history in Wisconsin**, cash bail ranged from $75,000 to $500,000.

Innocent until guilty: The place of cash bond and release conditions

Judges are balancing a variety of competing factors when making the decision about what kind of bond and release conditions to apply in a criminal case, University of Wisconsin Law School associate professor Cecelia Klingele explained.

“The death of a child is particularly tragic. People are concerned; we want to have accountability in cases like that to make sure that if in fact a crime has been committed that there is some justice,” Klingele said. “The job of the courts is to step back and narrow our vision for the moment to just making sure that people are showing up to court.”

By state law, cash bond is technically only supposed to provide enough incentive to return to court while also ensuring it is an amount a person can actually pay. In reality, serious cases in Wisconsin tend to involve serious amounts of cash bail. So while Dane County may be an outlier in terms of how release conditions were set in this case, Klingele said, it’s hard to quantify the decision as right or wrong–or to know whether different release conditions would have changed the couple’s decision not to show up to court.

“Hindsight is always 20/20. This kind of a case is one that really just pulls at people’s sense of injustice; it is a tragedy to lose anyone, much less a tiny person.”

Tune in to For the Record on Sunday, April 24 at 10:30 for a longer conversation with Prof. Cecelia Klingele about this topic.

*DCF reports for child maltreatment deaths are filed within three to six months of the death. This review is based on reports where a criminal investigation was pending and charges had been filed within that time frame.

**Data limitations: Any possible juvenile charges are sealed to the public. The data review covered public Wisconsin adult criminal court records.