Supporters say Judge Xander Orenstein followed the county’s bail guidelines after a previous suspect is now charged with murder

Conservatives rushed lash out at a controversial local judge who released the suspect without bail last year — before the same person was arrested in this week’s murder. But some observers say any judge could have made the same decision.

Critics slammed U.S. District Judge Xander Orenstein for a June 2023 decision to release a suspect without bail on charges of simple assault and robbery. A suspect, identified by police as Anthony Cousins, has been charged in connection with a fatal stabbing on Montour Trail this week. Lawmakers say they will seek the magistrate’s resignation, and if that fails, they will continue the impeachment process.

Supporters say Orenstein followed legal guidelines for non-cash bail recommended by the county. Community legal organizer Tanisha Long of the Abolitionist Law Center says critics who blame Orenstein don’t understand the legal process.

“A lot of people think ‘non-monetary’ just means getting out of jail,” Long said. “What they don’t understand is that ‘non-monetary’ really … means that there is a set of conditions that are designed to keep the community safe.”

Even if bail had been posted last year for a first-time suspect, Long says it’s likely the suspect would have been released earlier this week. “There are bond funds that would cover anything under $20,000,” she said.

Long argued that Montour Trail’s death is being politicized locally and on social media through identity politics — in part because Orenstein is non-binary and uses the pronouns they/them.

“This is the worst pressure cooker of bigotry and legal misunderstanding that we’re going to see in a while,” Long said of the calls for Orenstein to resign.

Criminal defense attorney Bill Diefenderfer says magistrates rely on pretrial referrals, including background checks and psychiatric evaluations. He called Allegheny County officials “very good” at such tasks and said that based on the charges and the lack of prior crimes, Orenstein’s decision would have made sense at the time.

“I would tell you there’s nothing unusual about that,” Diefenderfer said. “If this person was my client and I went before a judge, I would hope that they would be released.”

A state court administrator said Thursday that Orenstein “remains a member of the Allegheny County Bar” and continues to hear cases in court.

The Allegheny County District Attorney’s office declined to comment on calls for Orenstein’s resignation, but said Thursday, “We understand the public’s concern about the decision-making of some of our judges.”

The Fifth Judicial District Court of Pennsylvania, which includes Orenstein County, has yet to publicly address the dispute. The Orenstein district office does not answer phone calls.

Pretrial and subversive

The office of pre-trial proceedings “generally has a big impact on what magistrates do,” including non-cash bail recommendations, said Duquesne Law Professor Bruce Ledewitz. And even if the bail decision does not require defendants to post cash as collateral, they may make other demands: mental health treatment, travel restrictions or mandatory drug and alcohol testing.

If a judge sets cash bail and the defendant can’t pay, Ledewitz said, it can put someone behind bars unnecessarily and take away potentially helpful support: “The person has to go to jail, and (the court) will go to jail. a way of process that we have created’ to offer subversive programs to the court.

Ledewitz said it’s theoretically possible to impeach a magistrate for making unusual bail decisions, and that the prospects for that could be improved in Orenstein’s case the other two incidents, when Orenstein did not post a cash deposit, had no negative consequences.

“If that person was armed with a knife or a gun at (Point State Park) and allegedly committed a robbery, and (the magistrate) gave that person par bond, you could certainly be held accountable for impeachment or removal,” Ledewitz said.

But it’s a far cry from the charges Orenstein dealt with last summer. And under those circumstances, Ledewitz said, attacking a judge is a “second guess.” It’s Monday, defender.”

Impeachment usually results from allegations of self-enrichment and other forms of outright corruption.

A state disciplinary tribunal, for example, removed a magistrate in Lancaster in 2015 for dismissing her own parking fines and failing to file a tax return.

And 2018 is the year an analysis of judicial impeachment by New York University’s Brennan Center for Justice found that only two state judges had been fired in the last 25 years, including one in Pennsylvania.

On Friday, state Rep. Valerie Gaydos (R-Moon), whose district includes parts of Montour Trail, said she has asked the state Judicial Council to investigate Orenstein’s bail decision.