Conservatives have been quick to lash out at a controversial local magistrate who released a suspect without bail last year — before the same person was arrested in a homicide this week. But some observers say any judge could have made the same decision.
Critics have blasted Magisterial District Judge Xander Orenstein for a June 2023 decision to release the suspect without bail on charges of simple assault and robbery. The suspect, who police have identified as Anthony Quesen, stands accused of a fatal stabbing on the Montour Trail this week. Lawmakers say they’ll seek the magistrate’s resignation –and failing that, pursue impeachment.
Supporters say Orenstein was following the legal guidelines for non-monetary bail recommended by the county. Community legal organizer Tanisha Long with the Abolitionist Law Center says critics who blame Orenstein don’t grasp the legal process.
“A lot of people think that ‘non-monetary’ just means you walk out of the jail,” Long said. “What they don't understand is that ‘non-monetary’ actually... means there's a set of conditions attached that are meant to ensure community safety.”
Even if bail had been set for the alleged first-time offender last year, Long says it’s likely the suspect would’ve been released before this week. “There’s bail funds that would’ve covered anything under $20,000,” she said.
Long argued the Montour Trail death was being politicized locally and on social media due to identity politics — in part because Orenstein is nonbinary and uses they/them pronouns.
“It's the worst pressure cooker of bigotry and legal misunderstanding that we'll see in a while,” Long said of calls for Orenstein to step down.
Criminal defense lawyer Bill Difenderfer says magistrates rely on pretrial recommendations, 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 absence of prior offenses, Orenstein's decision would have made sense at the time.
“I would tell you that there is nothing unusual about that,” Difenderfer said. “If this person was my client and I went in front of a magistrate, I would fully expect him to be released.”
The state court administrator said Thursday that Orenstein “remains a member of the Allegheny County bench” and continues to hear matters before the 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 concerns about the decision-making of certain of our judges.”
The Fifth Judicial District Court of Pennsylvania, which includes Orenstein’s district, has yet to publicly address the controversy. Orenstein’s district office did not respond to phone calls.
Pretrial and diversion
The pretrial services office “generally has a great deal of influence on what the magistrates do,” including nonmonetary bail recommendations, said Duquesne University law professor Bruce Ledewitz. And even when bail decisions don’t include requiring defendants to put up cash as collateral, they can impose other requirements: mental health treatment, travel restrictions or mandatory drug and alcohol testing.
If a magistrate sets cash bail and the defendant can’t pay, Ledewitz said, that can put someone behind bars needlessly, and deprive them of potentially helpful support: “The person has to go to jail, and [the court] will get in the way of a process we've set up” to offer pretrial diversion programs.
Ledewitz said it was theoretically possible to impeach a magistrate for making unusual bail decisions, and that the prospects for doing so might be enhanced in Orenstein’s case by two other incidents where no cash bail ordered by Orenstein backfired.
“If this person had been armed with a knife or a gun in [Point State Park] and allegedly committed a robbery, and [a magistrate] gave that person nominal bond, you could certainly be liable for impeachment or removal,” Ledewitz said.
But that is much different than the charges that Orenstein was looking at last summer. And in such circumstances, Ledewitz said, attacking a magistrate amounts to “second guessing. It's Monday quarterbacking.”
Impeachment more typically follows from accusations of self-enrichment and other forms of outright corruption.
The state’s Court of Judicial Discipline, for example, removed a magistrate in Lancaster in 2015 for dismissing her own parking tickets and failing to file tax returns.
A 2018 analysis of judicial impeachment by NYU’s Brennan Center for Justice found only two state judges have been removed nationwide in the last 25 years, including one in Pennsylvania.
On Friday, state Rep. Valerie Gaydos (R-Moon), whose district covers parts of Montour Trail, said she has asked the state judicial conduct board to investigate Orenstein’s bail judgments.
