Darrell Brooks trial: Why he was free on bail before parade

WAUKESHA, Wis. - Darrell Brooks' involvement in the criminal justice system began long before the Waukesha Christmas parade attack in November 2021. At the time he's alleged to have driven his SUV through the parade, killing six and injuring more than 60, he had two open cases in Milwaukee County. In fact, just days before the parade tragedy, Brooks was released in Milwaukee County on $1,000 bond. 

In July 2020, Brooks was charged with three felonies including second-degree recklessly endangering safety after prosecutors say he shot at his nephew during a fight.

In that 2020 case, cash bond was set at $10,000 in July 2020, online court records show, but "adjusted down" to $7,500 in August 2020. In February 2021, nine months before the Christmas parade attack, it was "adjusted down" again to $500. That $500 cash bond was posted in May 2021.

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On Nov. 5, 2021, Brooks was charged with two felonies and three misdemeanors, including second-degree recklessly endangering safety (domestic abuse assessments) after prosecutors say he ran over his girlfriend in a Milwaukee gas station parking lot. According to prosecutors, he later tried to persuade the woman to not cooperate with investigators in exchange for marriage. That resulted in three more felonies being filed against Brooks in December 2021, less than a month after the Christmas parade attack. Those charges include intimidating a witness.

Brooks’ mother posted the $1,000 bail in the domestic violence case on Nov. 11, 2021, but Brooks was not released from the custody of the Milwaukee County Sheriff’s Office until at least Nov. 16, 2021. That’s when he appeared before a Waukesha County judge, by phone, in the custody of the Waukesha County Sheriff’s Department for failure to pay in a child support case. A judge released Brooks on his own recognizance in that case – just days before the parade attack.

The "low bail" and the fact that Brooks was free after posting it before he allegedly killed six people and injured dozens of others in Waukesha led to outrage and renewed calls for bail reform.

At the time of the Christmas parade attack, Brooks also had an active warrant out of Nevada for skipping court on sex crime charges.

Court record lost

We may never know why bail was set at $1,000 in the Milwaukee County domestic violence case.

Milwaukee District Attorney John Chisholm called the bail his office recommended for Brooks just days before the parade "inappropriately low," so why, despite a pretrial risk assessment that said he was very high risk for committing a new crime, did Court Commissioner Cedric Cornwall go along with it?

FOX6 wanted to know, so we asked for a transcript of the hearing and learned it doesn't exist.

Supreme Court rules say every court hearing should be recorded word-for-word by a certified court reporter or a digital audio recording device, but when the FOX6 Investigators asked for a recording of Brooks' Nov. 5 bail hearing, a court administrator told us, "There are no recordings" due to "technical issues."

FOX6 News asked District Court Administrator Holly Szablewski what she meant by "technical issues" and how often something like this happens. She did not respond to those questions. The bottom line is that any word-for-word account of what happened the day Brooks was set free has been lost for good.

$1,000 bail a ‘mistake’

Milwaukee County District Attorney John Chisholm, the county's top prosecutor for 14 years, said a young assistant district attorney made a mistake in setting the $1,000 bail.

"I’m not here to make excuses. I own any decision that’s made by any member of my office," Chisholm said.

When the assistant district attorney charged Brooks with his second violent felony in two years, she failed to even look at his pretrial risk assessment because, Chisholm said, she was overloaded with other cases.

"When I first ran in 2007, l made a promise to the community to identify people by risk," said Chisholm. "You had a young ADA trying to do the very best she could under difficult circumstances, and she made a mistake."

The district attorney’s comments in December 2021 came after he appeared before a Milwaukee County board committee, which included one county supervisor – Patti Logsdon – whose granddaughter was still in intensive care after Brooks’ SUV hit her dance troupe.

Logsdon was one of the supervisors who called Chisholm before the committee. The FOX6 Investigators asked Logsdon: Should Chisholm pay a price?

"We’re all human. We all make decisions that we regret," Logsdon said. "I do think that he should be accountable."

Public comment was not allowed during the county board committee meeting, which was held via Zoom – a change from usual practice.

The outrage led to a formal complaint against Chisholm, filed by Milwaukee County residents.

Governor Tony Evers said he would take the complaint seriously.

Wisconsin state law allows the governor to oust a district attorney for cause, but it requires a verified complaint filed by a taxpayer of the jurisdiction, which then starts a process. That document was handed over to the governor, asking Evers to remove Chisholm from office.

In January, an attorney hired by the governor's administration concluded the complaint demanding Evers remove Chisnholms was not valid.

The complaint from a group of Milwaukee County taxpayers had a host of technical shortcomings, attorney Matthew Fleming wrote in a memo to Evers. Nothing indicates the group swore oaths that they believe their statements were true, notary verifications were incomplete and the group failed to allege any facts that show Chisholm neglected his duties, Fleming wrote. Evers spokeswoman Britt Cudaback said in an email to The Associated Press that the governor could not legally take any action in light of Fleming's conclusions.

Chisholm has pushed for ending cash bail, saying it’s not fair to poor defendants. He wants a new system in which only violent offenders are jailed until trial.

‘Low bail fallout’

In response to the "low bail" outrage, State Rep. Cindi Duchow (R-Delafield) introduced a bill to change the Wisconsin Constitution, allowing judges to consider public safety when setting the dollar amount of bail. She said because her legislation calls for a change in the Wisconsin Constitution, it would have to pass two consecutive legislative sessions and then be approved by voters at the ballot box. The soonest that could happen, Duchow said, would be spring 2023.

Days after the attack, the New York Post called out Milwaukee's "Woke DA."

Conservative radio host Jeff Wagner said Chisholm ought to move on.

"These chickens are coming home to roost," Wagner said. "If Chisholm really wants to own up and take responsibility, the only decent thing to do would be to resign."

Right-wing political consultant Brian Fraley suggested Gov. Tony Evers ought to take Chisholm out.

Chisholm brushed aside those calls to step down.

"When there are tough things that occur, the response shouldn’t be to quit," Chisholm said.

White House pushes ‘to end cash bail’

Shortly after the Waukesha attack and amid this "low bail" fallout, the White House stood by its push to end cash bail, saying the decision to hold defendants should be based on the threat they pose to society, not their ability to pay bail.

In October 2021, the White House released a 42-page report entitled "National Strategy on Gender Equity and Equality" which called for working "to end cash bail and reform our pretrial system." The White House said the elimination of cash bail is one step governments can take to combat gender and race disparities.

A letter from President Joe Biden and Vice President Kamala Harris included in the report argued that the reforms are needed to promote equality, saying that America has "never fully lived up to" the idea that "every one of us is equal in dignity and deserves to be treated equally."

According to a report published by the U.S. Commission on Civil Rights, more than a half-million Americans are held in local jails every day – before they've been tried – because they are unable to afford bail, even though the law presumes them innocent. 

That's why New Jersey severely curtailed the use of money bail in 2017. New York City stopped ordering cash in misdemeanor cases in 2019. In 2021, Illinois voted to become the first state in America to eliminate cash bail altogether, a law which takes full effect in 2023. In its place, Illinois plans to use a system of pre-trial detention for the most dangerous offenders, based on a data-driven assessment of risk.

Bail controversy goes beyond Brooks, Waukesha

A month after the Christmas parade attack, FOX6 News highlighted the fact that one out of every five people charged with killing or trying to kill someone else in Milwaukee County in 2021 was already out on bond for another felony crime and more than half of those pending cases were violent.

The FOX6 Investigators reviewed 117 homicide and attempted homicide cases filed between Jan. 1 and Dec. 10, 2021. A FOX6 investigation found 25 of those 117 defendants were already free on a bail bond for a pending felony. That is roughly one out of every five.

FOX6 Investigation: 1 in 5 homicide suspects already on bond

Of those 25 accused killers (and attempted killers) out on bond, 13 had pending felonies that involved violence, and at least six posted bonds of $1,000 or less before they were charged with engaging in deadly violence.

In February 2022, the Wisconsin Senate passed Rep. Duchow's constitutional amendment to make it harder for criminal defendants to get out of jail on bail. 

Constitutional amendments must pass two consecutive legislative sessions and a statewide referendum. The Assembly passed the proposal, followed by the Senate. It must still pass another session of the Assembly.

The amendment would require court officials to consider a defendant’s risk to public safety when setting bail. The change would allow courts to consider the totality of the circumstances in a case, whether the accused has been convicted for a violent crime in the past, the probability he or she will flee and the need to protect the community. Again, the measure could be put before voters for final approval as soon as 2023. 

Under current Wisconsin law, the primary purpose of bail is to ensure a defendant's appearance in court. Some want to flip that system on its head, creating a system that allows for pre-trial detention based on public safety risk. 

Gov. Tony Evers in December 2021 said he might support efforts to overhaul Wisconsin's bail system. The Democratic governor said he might support changing the bail system to raise the amounts that violent offenders have to pay to stay free pending trial, but he said that all stakeholders would have to be involved in any discussions.

In all, as of early 2022, lawmakers have filed 10 separate proposals to overhaul the system of pre-trial release known as bail.