Editor,

The article entitled “Judge declines to revoke accused child rapist’s bail,” appearing in the Aug. 25 edition of the Whidbey News-Times, states that I declined to revoke defendant Coy Bozeman’s pretrial release. That is true, but the article did not state why I declined to do this. That is because the state produced no actual evidence indicating that Bozeman had, in fact, violated his pretrial release conditions.

Criminal Rule 3.2(k)(2) states that, “Release may be revoked only if the violation is proved by clear and convincing evidence.” Clear and convincing evidence is defined in the law as evidence that shows that the fact at issue is highly probable. This is a higher burden that the preponderance of evidence standard, which is that the fact at issue is more probably true than not true.

Evidence is of two kinds, sworn oral testimony and sworn declarations or affidavits. Sworn means under oath. Unsworn documents are not evidence. The only document produced by the state in the Bozeman pretrial release hearing was a sworn declaration from the deputy prosecutor, but the declaration merely attached a copy of an unsworn report from Oregon’s Medford Police Department.

The prosecutor stated that, based on this report, the defendant was in violation of his pretrial release conditions to have no contact with persons under 16 and not to go to places that children congregate.

The prosecutor did not swear to the truth of the report, nor could he. As I say, the report itself is unsworn and therefore is not evidence. Even if it were sworn, the Oregon detective had no personal knowledge of the alleged events and her report was based entirely on hearsay.

In contrast, the defendant presented seven detailed sworn declarations from persons with personal knowledge of the various events in Oregon, including the defendant’s own declaration. These declarations indicated that the defendant had not violated the release conditions.

Naturally, the allegations were of great concern to me. But under the circumstances, I had no alternative but to deny the motion to revoke pretrial release.

The state did not produce clear and convincing evidence that any violation of release conditions occurred, and the defendant produced sworn evidence that no violations had occurred. To have revoked pretrial release under these circumstances would have been contrary to law.

Alan R. Hancock

Island County Superior Court Judge