United States v. O'Donnell
| Decision Date | 09 June 2020 |
| Docket Number | Case No. 20 CR 260 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY O'DONNELL, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
U.S. Magistrate Judge Gabriel A. Fuentes
The government has moved to detain Defendant Timothy O'Donnell ("Defendant") pending his trial on a felony arson charge stemming from allegations that in the middle of a public demonstration on State Street in downtown Chicago on May 30, 2020, he set a Chicago police car ablaze while wearing a clown-style mask and then posed for photos in front of the flaming vehicle as the demonstration continued around him. His background, according to information provided to the Court, includes a long history of failing to appear in court on a series of arrests for offenses or charges that he characterizes as relatively minor, and only one of them resulted in a felony conviction. His background also includes indications of some severe mental health problems amid ongoing mental health treatment, before he was taken into custody. The Court must conclude whether, under the Bail Reform Act, the government has met either of its respective burdens of showing that no set of release conditions will reasonably assure (1) Defendant's appearance in court as required, or (2) the safety of the community or any other person. 18 U.S.C. § 3142(e).
Defendant is charged in a Criminal Complaint (D.E. 1) of committing arson in violation of 18 U.S.C. § 844(i). More specifically, the Complaint alleges that on or about May 30, 2020, Defendant held a lit object and placed it in the gas tank of a marked Chicago Police Department vehicle, setting it afire, and then posed for a photograph in front of the burning vehicle. (Id. ¶¶ 4-6.) The government proffered at the detention hearing on June 8, 2020, that Defendant remained in the area of the fire for about 15 minutes, sitting down to roll a cigarette. One of the photographs submitted to the Court appears to depict him rolling the cigarette as the flaming police vehicle is visible in the background. (Id. ¶ 5.) The Complaint further alleges that Defendant committed the foregoing acts while wearing a mask described by the government as "a 'joker' mask," shown in photographs included in the Complaint as depicting a white clown mask with a wide, eight-tooth grin. (Id. ¶¶ 6.) In one of the photographs, the burning police vehicle is in the background, and the person alleged to be Defendant is standing with arms outstretched, wearing the mask, and displaying a neck tattoo with the word "PRETTY" in all capital letters. (Id. ¶ 6.) A police "booking photo" of Defendant is also included in the Complaint, and that photo shows the same all-caps tattoo of the word "PRETTY" on Defendant's neck. (Id. ¶ 7.) A law enforcement search, authorized by federal warrant, of a Chicago residence associated with Defendant yielded "a 'joker' mask" that is "consistent with the mask shown in the photographs," the government alleges. (Id. ¶ 9.) The government further proffered at hearing that the search also resulted in law enforcement's recovery of clothing that appears to match the clothes shown in the photographs. In addition, the government submitted a four-second video showing the person in the clown mask standing at the rear right quarter panel of the police vehicle, the small circular door to its gas tank open, and showing the person holding his hand in the area of the open gas cap area for a full four seconds. We will discuss that video further below.
The government also alleges that on June 2, 2020, Defendant admitted to law enforcement that he was the person shown wearing the mask in the photographs taken at the scene of the burningpolice vehicle. (Id. ¶ 10.) Defense counsel argued at the detention hearing that Defendant's statements were the product of a three-and-a-half hour interview during which Defendant invoked his right to counsel, continued to be questioned unlawfully, and denied being the person who set the police car on fire. Meanwhile, the images of the burning police car "were quickly broadcast across the nation . . . and seemed to some to represent a city had lost control" during widespread demonstrations in Chicago and elsewhere in the wake of the death of George Floyd a week earlier during his detention on the street by Minneapolis police officers.1 This Memorandum Opinion explains the Court's conclusion as to the government's detention motion, which Defendant opposes.
Under the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-3156, a defendant may be detained in custody pending trial "[i]f, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(1). The judicial officer's conclusion that no conditions of release can reasonably assure the safety of other persons and the community must be supported by clear and convincing evidence, 18 U.S.C. § 3142(f), and the government's burden is by a preponderance of the evidence on the question of whether no conditions of release will reasonably assure a defendant's appearance in court as required. United States v. Portes, 786 F.2d 758, 766 (7th Cir. 1985). To detain a defendant, the Court must find that the government met its burden on either ofthe two foregoing issues (risk of non-appearance or risk to the safety of the community or any other person), and not both. United States v. Ramirez, 843 F.2d 256, 257 (7th Cir. 1988).
The Bail Reform Act generally expresses a "preference for release," in that Section 3142(e) requires the Court to consider the possibility of less restrictive alternatives to detention. United States v. Fattah, 351 F. Supp. 3d 1133, 1136-37 (N.D. Ill. 2019) (citing United States v. Infelise, 934 F.2d 103, 105 (7th Cir. 1991)). "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755 (1987). In determining whether there are conditions of release which will reasonably assure the safety of any other person and the community, we are to take into consideration the factors set forth in § 3142(g):
18 U.S.C. § 3142(g).
The Bail Reform Act imposes a rebuttable presumption of detention for certain offenses as to which the Court has found probable cause with respect to a defendant, but the charged offenseof arson is not among them. 18 U.S.C. § 3142(e)(3). Accordingly, no rebuttable presumption applies, and the Court's analysis will go straight to the Section 3142(g) factors in determining whether detention is required under Section 3142(e). For purposes of the first of those factors, per Section 3142(g)(1), the offense of arson does constitute a "crime of violence" under the Bail Reform Act per 18 U.S.C. § 3156(a)(4)(A), in that arson is a felony that has as an offense element including the use of physical force against the property of another. See United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (). Arson as charged in this case carries a maximum statutory penalty of 20 years of imprisonment. 18 U.S.C. § 844(i).
In this matter, the government has moved for detention on dual grounds: that no set of release conditions will reasonably assure (1) Defendant's appearance in court as required, and (2) the safety of the community or any other person.
The question of whether no set of release conditions will or will not reasonably assure Defendant's appearance in court as required depends heavily on an analysis of Defendant's personal history and characteristics, the third of the Section 3142(g) factors. The Court has little difficulty concluding that Defendant's history of failing to appear in court during various criminal prosecutions, some more serious than others, satisfies the government's burden of showing by a preponderance of the evidence that no release conditions will reasonably assure Defendant's appearance in Court. For purposes of the government's burden of showing that no release conditions will reasonably assure Defendant's appearance, the Court is more concerned with the failures to appear than with the relative seriousness of the charged offenses in his background....
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