Monday, December 25, 2006

More on bail

After my last post, someone posted a comment on my old criminal injustice post. The comment was:

However, if the case you cited is a Felony, CPL 530.20 requires the people to be heard on bail before a decision is made.

By PML, A local Judge

As I mentioned in a follow-up comment on that post, the comment by the Hon. PML is not correct. CPL 530.20 states, in pertinent part,

(b) No local criminal court may order recognizance or bail with respect to a defendant charged with a felony unless and until:
(i) The district attorney has been heard in the matter or, after knowledge or notice of the application and reasonable opportunity to be heard, has failed to appear at the proceeding or has otherwise waived his right to do so ...

This may seem picky to some, but it is very important in some cases. The statute does not "require the people to be heard before a decision is made," as suggested by PML, a local judge (no, I haven't figured out who this judge is, but I suspect it really is a judge and I am honored to have such a comment, even as I attack it).

It requires that the DA be heard, or that the DA either fail to appear or otherwise waive the right to be heard after notice and a reasonable opportunity. That's pretty loose language.

I will say, first of all, the statute is bunk. I see no reason why a judge should be prohibited from setting bail on minor felonies without the DA being heard. Cases involving minor felonies (the lowest level of Grand Larceny, for example) are routinely resolved with no jail time for the defendant. This rule might make more sense if it applied only to offenses of C Felony grade and up, but even then a judge should have the discretion to set bail.

But let's talk about what's really wrong with this statute, and I'll put it in the context of a couple of old cases I had.

Case #1 was a DWI case, but the police officer also charged my client with assaulting a police officer, a felony charge. I appeared in a local court at 4 am after my client had called me at 2 am. The assault charge was baloney. The officer's injuries were non-existent -- he was in the courtroom when we appeared and apparently had not bothered to go to the hospital. I have little doubt in my mind that the felony charged was tacked on because the police involved didn't like my client. In fact, I'm quite sure they beat him up. This particular department has a pattern of charging defendants with "assaulting a police officer" after they beat someone up. They did this to another client of mine -- and it's never happened to any of my clients in any other place. At this point I suspect many local defense lawyers would know which jurisdiction I'm referring to, and I'll further that along by saying that the judge who showed up was and is one of the best local judges out there. Very experienced, knows the law, and is fair.

So I asked that the judge set bail and he refused, noting the statute we're discussing. I then asked the judge to dismiss the felony charge, since the officer was obviously not injured. The judge chose not to address this. I remember someone mentioned that the DA had been called, and that there was supposed to be someone on call, but they did not respond. In retrospect I should have asked the judge to deem that notice and a reasonable opportunity to be heard. But he probably would have said no anyway. I then spent about 11 hours on a weekend trying to get someone from the DA's office to respond so we could get bail set, and finally got it. The client was, of course, completely ungrateful for my effort.

The client, by the way, was clearly not a flight risk. A successful business owner, homeowner, with wife and kids, etc. Charged with among the most minor of felonies, and yet bail was unavailable.

Case #2 is one of my favorites. Client was accused of "stealing" something from the store where he worked. The arresting officer was buddies with the boss, and really stuck it to my client. He arrested my client at night, after court was done for the night in that particular jurisdiction. So there was no DA available. The cop also manufactured evidence indicating the item "stolen" was worth more than $1000, making it Grand Larceny at the lowest level, an E felony. By timing it the way he did, my client would have sat in jail for three days until the next court night, if it wasn't for his brother finding me on the web. We got my client out the next day. The prosecution eventually dropped the charge to a petit larceny, offered an interests of justice dismissal, and we won the case at trial.

This bail rule is completely arbitrary. I had another client on a similar "stealing from the store" grand larceny case where the officer brought that client to the police station, ran his prints and did whatever else he needed to do, and then drove that client back to the client's house with an appearance ticket telling him when to be in Court. In other words, if the cops want you to spend some time in jail, they can make it happen. This is the practical effect of CPL 530.20. We were thinking of suing the cop in Case #2, but one night in jail and my relatively modest legal fees just weren't enough to make it worthwhile. And the cops know they won't get sued if they only jerk you around a little bit.

By the way, I'm not trying to pick on all cops here. Just the bad ones who abuse the system. I'd say that's far less than half of them, but there's certainly some who do it. And CPL 530.20 provides them with a way to do it.

I hope the Hon. PML will keep this rant in mind the next time this issue comes up on a low-grade felony, and use discretion to deem a phone call and no response within a half-hour as notice and a reasonable opportunity for the DA to be heard.
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