Appeals court hears dispute over bail modification, jurisdiction and whether judge found ‘substantial danger’ in Stubbs case

The Utah Court of Appeals heard argument in an expedited bail appeal by the defendant identified as Mr. Stubbs over whether the district court properly denied pretrial release and whether this court has jurisdiction to review the modification order.

Appellant counsel Wendy Brown argued the district court’s order did not include the statutory language required by Utah’s bail statute — specifically the phrase “clear and convincing evidence of a substantial danger” — and that the court failed to consider available conditions of release before concluding detention was necessary. Brown asked the court to reverse and remand for a bail determination that applies the statute’s prescribed standard and that expressly weighs conditions of release.

Aubrey Bisbee, arguing for the state, urged dismissal for lack of jurisdiction or, in the alternative, affirmation. Bisbee said the modification statute requires a showing of a material change in circumstances before the district court reconsiders bail, that this appeal differs procedurally from Gross, and that the district court explicitly found no material change in circumstances. The state told the panel the written record contains an order and a January filing that the state submitted to the court for completeness; Bisbee said the district court also made findings addressing delay and that the denial should be affirmed.

Why it matters: Brown framed the appeal as a narrow statutory and procedural error: bail is a constitutional right that the legislature limited in specific, tightly worded circumstances, and the court must make a distinct finding of “substantial danger” by “clear and convincing evidence” before denying that right. The state contends this appeal either is not properly before the Court of Appeals under the expedited bail appeal statute or, if it is, the district court’s overall findings are sufficient.

Key points from argument

- “Magic words” and statutory burden: Brown told the court the statute’s phrases are not optional: “The language is substantial danger. ... And more than that, the statute isn't just substantial danger. It's clear and convincing evidence of a substantial danger. Clear and convincing evidence doesn't appear in the court’s order either.” Judges asked whether those exact words are required on the record or whether the substantive standard could be found by implication from the court’s reasoning.

- Consideration of conditions of release: Brown said the district court did not meaningfully consider available conditions of release and instead deferred to the state, noting the court told counsel, “If you can come up with a stipulation, I don't need another hearing. Just get that before me,” which Brown said shows the judge had not evaluated conditions independently.

- Jurisdiction and subsequent orders: The state argued Gross and related precedent permit review of subsequent detention orders but emphasized distinctions: the Gross modification followed an initial appeal and new evidence at a preliminary hearing; here, the state contends no material change justified a different result and that a January docket entry does not create a new appealable order.

- Delay and material‑change argument: The court pressed both sides on whether the passage of time (multiple years detained) satisfied the material‑change threshold. Brown said compliance with juvenile‑court conditions and a documented lack of disciplinary incidents in custody supported her argument that circumstances had changed; the state disputed the evidence’s effect on the statutory analysis.

Outcome at argument: The panel took the matter under advisement. No appellate ruling was announced from the bench.

What to watch for

The appeals court must decide (1) whether it has jurisdiction to entertain this modification appeal under the expedited bail appeal statute, (2) whether the district court made the statutorily required finding of “clear and convincing evidence” of a “substantial danger,” and (3) whether the trial court adequately considered conditions of pretrial release. A ruling for the appellant would require the district court to re‑evaluate bail under the statute; a ruling for the state would leave detention in place.