FOX UNDERCOVER -- A decision by an obscure state official to let Jared Remy walk out of the Waltham police station without bail the night he was arrested after allegedly slamming his girlfriend's head into a mirror is coming under fire, a decision that's being criticized by a victim's advocate and also raising questions about whether the state's entire bail system gives an incentive to let defendants walk out of custody.
In her own statement to police, Remy's girlfriend, Jennifer Martel, recounted the "fear" she had of Remy that night, Aug. 13.
In a police affidavit, Martel wrote "Jared grabbed my neck and head and slammed my head into the bathroom mirror" and "I went back next door and Jared followed me and banged on the door, then went back to our place to get the key and let himself into my friend's house."
"I feared for my safety, and called the cops," she wrote.
That statement was made around 7:45 that night, the night that Waltham police arrested Remy, charging him with assault and battery with a dangerous weapon.
At 9:30 p.m., Martel obtained an emergency restraining order against Remy. But a half-hour later, court records show Remy was a free man. He paid a $40 fee to a bail commissioner who let him go on personal recognizance, meaning no bail was necessary, allowing him to walk out of the Waltham police station promising to return to court for his arraignment the next day. The day after that court appearance, he allegedly stabbed her to death.
"How is the system going to protect her if they can't even keep him in the night that he assaulted her?" said Laurie Myers, founder of the group Community Voices, which advocates for victims.
Myers says Remy should never have been let out, especially given his long history of domestic assaults.
"How unusual is it to let someone out that night?" FOX Undercover reporter Mike Beaudet asked, referring to domestic violence cases.
"Highly unusual," Myers replied. "It's the first time I've ever heard of it."
Remy's release the night before his arraignment sent a terrible message to the victim, who didn't show up in court the next day, according to Myers.
"Did he contact her, did he have somebody else contact her who said, ‘Hey look, I'm already out.'? And she knew right then and there, ‘You know what? The system is not protecting me, the system is favoring him,'" Myers said.
The morning after his release, Remy showed up in Waltham District Court for his arraignment, where he was again released without having to post any bail.
A recording from the court proceeding obtained by FOX 25 shows the prosecutor didn't know where Martel was, or what she planned to do, even though the district attorney later claimed her office had contact with Martel before court and Martel had made a decision not to pursue the restraining order.
"Any information from the reported victim?" the judge asked.
"Nothing definite, judge," the prosecutor replied.
"Here's why I'm asking. It was an emergency order overnight and I have the paperwork as if the person might be here. But you have no information the person is here?" the judge said.
"Correct," the prosecutor replied.
"Or coming by any message?" the judge asked.
"The information I have is she's not here. About whether she's coming later today, I don't know," the prosecutor said.
Myers believes the decision to let Remy walk the night before may have played a role in his girlfriend's not showing up in court the next day.
"I think she knew that he has been getting away with things his entire life," Myers said.
For people arrested after courts close for the day, a decision on whether to set bail is made by a clerk magistrate, assistant court clerk or a bail commissioner. In Remy's case, the decision to allow him to be released on personal recognizance was made by Judith Chambers, a commissioner since 1990.
Asked about her decision in the Remy case, Chambers referred questions to the state bail administrator, who oversees the commissioners, but she did say "No" when asked if she had any regrets.
In Massachusetts, any one of the officials setting bail after regular court hours collects a $40 fee for their work only if the defendant is released. To some critics, that's an incentive to get a defendant released. If the person arrested remains in custody until court opens for business, no bail fee is collected.
Those fees can add up quickly. Chambers has already made $19,060 in bail fees this year, more than any other bail commissioner in the state.
"You've made a lot of money on those fees that the defendants pay. Did that have anything to do with this?" Beaudet asked her.
"Nothing to say," she replied.
State bail administrator Michael McEneaney declined to speak with FOX Undercover on camera, but defended Chambers' decision to set Remy free because Remy appeared in court the next day.
But others say there is more to a bail decision than whether or not the defendant will show up in court for his or her arraignment.
"They should read the rest of the bail statute because there are many things they could have taken into consideration to hold him," Myers said. "The statute is intended to protect the victim."
Daniel Hogan, president of the Association of Magistrates and Assistant Clerks, said in general that many factors need to be taken into consideration. A checklist his members use notes that the offense charged is just one of 17 factors taken into consideration. Other factors include a defendant's record of convictions and history of domestic restraining orders being issued against him, both of which applied in Remy's case.
"Knowing Jared Remy's criminal history would you have set him free?" Beaudet asked him.
"I'm not going to second guess what someone else has done but given what I've learned through the media…I may have chosen to make a different decision, yes," said Hogan, who is also the Clerk Magistrate of Boston Municipal Court.
Hogan distinguishes between members of his organization, who work in the courts, and commissioners like Chambers, who are appointed, but said every bail decision should consider a defendant's history.
Remy's long record of domestic assault arrests includes one in 2003, when bail was set at $500 dollars by none other than Chambers.
In the wake of Martel's murder, Hogan is sending out a notice to the clerk group's members reminding them of all the factors to consider when deciding whether someone should be released. He has also invited the executive director of Jane Doe Inc., an anti-domestic violence group, to speak to clerks from across the state during the group's conference in October.
Not every state handles bail the way Massachusetts does. In Connecticut, the people who set bail are paid a flat salary, eliminating the financial incentive to see a defendant go free.
Nevertheless, Hogan said bail decisions are too important for anyone making them to be swayed by the prospect of collecting the $40 fee.
"Isn't there a financial incentive to get these people out of jail?" Beaudet asked him.
"I can see how someone would conclude that. That's extremely unfortunate," he replied.
"We're always one decision away from a career-ending decision, and that's why I take these things extremely seriously, I know that my colleagues take these decisions extremely seriously, because you're making these types of Constitutional decisions with significant ramifications, as I think we can see in this Martel case. Tragic," Hogan said.