photo by: Douglas County Sheriff's Office

Phillip Michael Carney, pictured in January 2020

A Douglas County prosecutor on Friday had requested a hearing to revoke a defendant’s bond, and there was a warrant out for his arrest. By Sunday, it was too late.

Phillip Michael Carney, 38, was going to be charged in a fifth case in Douglas County after he’d repeatedly bonded out of jail, despite the prosecutor seeking, and the judge agreeing to, ever-escalating bail amounts. Under the state constitution, he could not be held without bond.

“This is an urgent situation as the defendant is continuing to behave in a violent manner toward citizens and placing the public safety at risk, despite facing felony charges in four other pending criminal cases,” Chief Assistant District Attorney Eve Kemple wrote in a motion for a hearing to revoke Carney’s $300,000 surety bonds.

That motion was file-stamped at 4:23 p.m. Friday. On Sunday, Carney was killed in a shootout with Overland Park Police that also injured Officer Mike Mosher. Mosher later died at a hospital.

Mosher was off duty but in uniform when he took off in pursuit of Carney after an apparent hit-and-run, the Associated Press reported. Carney stopped his vehicle, Mosher approached and a shootout began, police spokesman Officer John Lacy said.

photo by: Associated Press

This photo provided by the Overland Park Police Department shows Overland Park Police Officer Mike Mosher.(Overland Park Police Department via AP)

The Journal-World had previously reported about Carney, a self-employed ballroom dance instructor who was charged in connection with three burglaries at the same Lawrence cigar shop. He’d also been charged with aggravated assault on law enforcement and misdemeanor battery against a law enforcement officer from his alleged actions when he was arrested, among other offenses.

In the case in which Carney will never have a court appearance, prosecutors alleged that he threatened “to commit violence communicated with intent to place another in fear” on April 28. He was to be formally charged with criminal threat, a felony.

“Carney was not arrested on 4/28 for the criminal threat case because he was not physically present, officers had a phone conversation with him during the investigation,” Dorothy Kliem, trial assistant for the Douglas County district attorney’s office, said via email Tuesday.

Kemple on Friday had filed motions to revoke Carney’s bond in each of his four pending cases. At the judge’s instruction, Kemple also filed four motions for bond revocation hearings to be held via the internet videoconferencing platform Zoom, Kliem said.

The Zoom hearings had not yet occurred, Kliem said, but a warrant had been issued for Carney’s arrest in connection with the new case on Friday.

$442,500 in bonds

Based on his financial affidavit, a judge had determined that Carney qualified for an appointed defense attorney. However, he continued to post escalating surety bonds.

A review of Kemple’s motions to revoke Carney’s bonds and jail booking records shows that Carney and/or the “financial backer who has been kind enough to help me with this,” as he once told the judge, likely paid $44,250 for Carney’s $442,500 total surety bonds to bail him out of the Douglas County Jail alone. He also had some pending matters in Johnson County, and he’d previously been convicted there of domestic battery, obstruction of the legal process and criminal damage.

• Carney was arrested in the early hours of Thursday, Jan. 2, after allegedly burglarizing Cigar House Lawrence. He was initially granted a $10,000 own-recognizance bond in one case, meaning he could be released from the jail on his own signature and promise to appear in court as directed. He was charged in a second case for allegedly breaking into the same cigar shop on Nov. 11, 2019, and his bond was set at $5,000 own recognizance in that case. He also had a $1,500 own-recognizance bond in connection with a Johnson County case.

Carney was ordered to be monitored through pretrial release and to wear a GPS monitor, and he bonded out that afternoon. He was instructed not to return to the cigar shop or to have any contact with any alleged victims and non-law enforcement witnesses.

• In the early hours of Saturday, Jan. 4, Carney was arrested in connection with a third burglary at the same business, and he was charged on Monday, Jan. 6. His bond was set at $40,000 cash or surety. He had a $2,500 cash or surety bond from Johnson County as well. He made bond in both cases and was released that evening, a few hours after he was charged.

• When Carney appeared for court the afternoon of Thursday, Jan. 9, his bond was revoked and he was arrested again because his GPS bracelet had been removed at some point between his arrests. Carney told the judge in court that he was adjusting it and something popped; prosecutors said he cut it off. Douglas County District Court Judge Amy Hanley reset his bond to $50,000 cash or surety in both of his first two cases. He bonded out that evening.

• At a hearing on Feb. 13, Carney was charged in connection with allegedly tampering with his GPS monitor.

Altogether in four Douglas County cases, Carney had at that point been charged with 11 counts, including eight felonies: aggravated assault of a law enforcement officer, two counts of burglary, attempted burglary, interference with law enforcement, unlawfully tampering with electronic monitoring equipment and two counts of theft. He was also charged with misdemeanor battery against a law enforcement officer and two counts of misdemeanor criminal damage to property.

As the Journal-World has reported, Kemple that day shared with Hanley a letter from a member of Carney’s family, asking for him not to be released on bond because they feared he was a threat to them. His threats had grown increasingly violent, and he’d recently threatened to kill one family member with an assault rifle, according to the letter.

The family member wrote that she believed Carney suffered from addiction issues and that the only way he would get help was if he was held in jail. His “well meaning friends keep rescuing him from his behavior and he does not stay sober,” the letter said.

Kemple requested that Hanley revoke Carney’s bond that day, and she did. She also set bond in the new case at $10,000 cash or surety and increased bond in each of his earlier three cases by $50,000, saying that the letter from Carney’s family members and the serious charges against him gave her grave concern. That brought his total bond in the earlier three cases to $290,000.

Hanley also noted at the hearing that Carney continued to make the high bonds, and perhaps his appointed attorney’s time could be better spent elsewhere because there are people who have no resources who need appointed attorneys. She made a point that should Carney have to forfeit his bond, she would order that it be kept.

However, he still bonded out about six days later, on Feb. 19. Altogether, Carney spent less than 10 days in the Douglas County Jail. After a court appearance on Feb. 20, Carney was scheduled to appear again on March 19; by that time, though, the courts had suspended all in-person hearings because of the coronavirus pandemic.

‘All persons shall be bailable’

Why was Carney allowed to bond out after his Feb. 13 hearing, even at a cost that equates to nearly 60% of the median annual household income in Lawrence?

Foundational documents of national and state law dictate that only under rare circumstances can defendants in pending cases be held without bond.

The Eighth Amendment of the U.S. Constitution states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In addition, the Kansas Constitution states that “All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great.” In other words, only crimes punishable by death are likely to require defendants to be held without bond in Kansas.

A quick look at Douglas County District Court cases shows that even those charged with what many would consider the most serious offense a person can commit are not automatically precluded from bonding out. Two defendants in custody of the Douglas County Jail who are charged with murder have $750,000 cash or surety bonds set in their cases.

District Attorney Charles Branson said Tuesday afternoon that his office was devastated to hear about Mosher’s death. He said his staff had continued to seek higher bonds in Carney’s cases, but unfortunately he was able to bond out each time.

Branson said this is an issue that the Kansas Supreme Court’s pretrial justice task force, of which he is a member, is examining. The task force is expected to complete a report on pretrial detention by Nov. 6.

On Tuesday morning, Kemple filed motions to dismiss Carney’s cases “for necessity at State’s costs with prejudice because the defendant is deceased.”