At the bail hearing, the judge concluded that preventative detention was not merited because it “is certainly a triable case ...” Moore was released on personal recognizance (or PR) bail with reporting conditions.

The events that followed have led to a convenient, but false narrative about the bail statute. In early August, Moore was arrested for entering a McDonald’s when a police officer said not to. Later in August he is arrested for disorderly conduct (swinging a sock with a rock in it towards someone) and two counts of resisting arrest (pulling away from an arresting officer and refusing to put his feet in the cruiser). The next day, the judge released him on PR bail.

A few days later, Moore is arrested for the alleged murder of Whitmore. Anti-bail reform advocates claim that Moore should have been held in jail after the previous charges in August and that changes to the bail statute made in 2018 somehow enabled him to be released on PR bail to kill Whitmore. That interpretation is inaccurate and misleading.

The bail statute gives prosecutors the power to argue for the revocation of bail and pre-trial detention. But prosecutors failed to argue for pre-trial detention in either August case. The prosecutor in early August could have notified the district court that Moore should be preventatively detained based on the prior felony charge, the bail statute provided that opportunity. The prosecutor did not do so and so the releasing court never knew that Moore was out on bail on the first-degree assault charge.

Similarly, the Hillsborough County prosecutor could have renewed the argument for pre-trial detention. Yet, the prosecutor made no such motion.

Silence was also the answer of the Nashua District Court prosecutor during the arraignments on the McDonald’s charge and the resisting arrest charges. The transcript reveals that she did not even mention the first-degree assault. Not one word, once again depriving the judge of the opportunity to hold Moore in jail.

Further, the Hillsborough County Attorney’s Office never filed a motion to revoke bail on the attempted first-degree assault charge after the disorderly and resisting arrest charges.

Only after these four acts of prosecutorial silence was Whitmore murdered, allegedly by Moore. Moore was not out on PR bail because of a bad bail statute. He was out because four different times prosecutors had chosen not to argue for his pre-trial detention.

Here is another truth about bail. Silence is often par-for-the-course for prosecutors, at least in Manchester. A study of 508 Hillsborough County Superior Court and Manchester District Court cases revealed that very rarely did prosecutors file motions to revoke bail. These failures may be due to understaffing, neglect, or bad decisions. Let’s be clear: it’s not the bail statute that is broken.

The narrative that Whitmore would be alive today but for the bail statute is false, misleading, and damaging. It is a narrative intentionally designed to build opposition to the bail statute, a statute that provides all the tools necessary to call to account people arrested for new charges while out on bail. Prosecutors should use the tools already at their disposal, and police should hold prosecutors accountable for doing so.

More broadly, false narratives dominate the bail debate. We are not amidst a frightening crime wave in New Hampshire as some might have you believe. In Manchester, the arrest rate for Class A crimes (the most serious) is down 33% from 2018 (the passage of bail reform) to 2021. For Class B crimes, the arrest rate went down 32%.

The disinformation being spread about Moore’s case is not unique. The discussion about bail in New Hampshire is littered with anecdotes that are told so as to scare rather than to inform. But this is a serious topic and it warrants an informed, factual and data-driven conversation.