The Times Union reported June 6th about a case in Rensselaer County where Judge Jacon released a defendant on his own recognizance. The defendant, 18 years old and local to the county, was the driver in an accident where a 19-year-old passenger was killed.
The victim's mother and some elected officials in the county are upset that no bail was set. Anyone can understand the victim's mother being upset, but the actions of the county officials are disturbing.
According to the paper, the county legislature is considering a resolution to ask the state legislature to set a minimum bail requirement, and some officials "have demanded an explanation from Jacon." Since he can't explain (a judge is not supposed to comment on a case pending before him), I will. No bail was set because there's no reason to require bail. A local 18-year-old is not a flight risk. He is likely to appear in court so there's no need for bail.
One Republican official is quoted as saying that community members are upset by the judge not setting a bail amount, and said that the county legislature's action "will bring the matter to Jacon's attention." Great. So the county officials (all of whom are from the party opposite that of the judge) are doing what then? Um ... threatening judicial independence? Yep.
The victim's mother is quoted as saying there should be "a repercussion" for what happened. There is. The defendant has been charged with at least two crimes (felony vehicular manslaughter and misdemeanor DWI). If convicted he can get jail time. But you see, he gets convicted and punished AFTER he gets due process. It's this crazy little concept we used to have in America called "Innocent until proven guilty."
I congratulate Judge Jacon for doing the right thing in the face of this kind of offensive political pressure.
Showing posts with label bail. Show all posts
Showing posts with label bail. Show all posts
Thursday, June 07, 2007
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.
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.
Bail - Its true purpose and how it is subverted
Some time ago I had a brief rant about criminal injustice and I mentioned bail at that time. The bail issue came up recently on a couple of my cases so it's in my head again.
First, the true purpose of bail -- to make sure the defendant shows up for Court. See People ex rel. Lobell v. McDonnell 296 N.Y. 109, 71 N.E.2d 423, 1947. It is particularly important where the defendant is perceived as a flight risk. OJ's drive in the Bronco is a good example of how a defendant can ensure he is denied bail.
But what about where the defendant shows no sign of being a flight risk? It is nevertheless very common for judges to set bail at a very high level in some cases. Two of my recent cases are great examples. In one, my client grew up in the area, owns a home, is married, has kids and a substantial extended family, has a stable job with the government, and faces one of the weakest prosecution cases I've ever seen on relatively minor felony charges. Bail was set at $90,000.
--Note--
If you're about to face a judge who's going to decide bail read that paragraph above again. If you live in the area, own a home, are married, have kids, and have a job, those are all things you should say to the judge before he sets bail. It's hard to know when to say it, but at some point, say this: "Your Honor may I be heard on bail?" Wait for the judge to give you a chance to speak. He or she probably will. Then say: "Your Honor, I've lived in this area for _______ years. I own a home. I'm married and we have ___ kids. I have a steady job. These are important factors the law says you're supposed to consider in setting bail. I'm not a flight risk. This is my home. Please release me on recognizance."
However, do not talk about the strength or weakness of the prosecution's case. You don't want to speak about that in open court yet.
--
I've got another case where my client, from out-of-state, drove over four hours to appear in Court to face charges similar to the one above, and bail was set at $50,000.
Let's get this straight. The guy drove up to Court to face the charges from out of state. How is this defendant a flight risk? How is the other defendant a flight risk?
And that brings us to the improper purpose of bail. In many cases the defendant is unable to make bail and remains in jail while the case is pending. This has one very profound effect, and everyone in the system understands it. A defendant who is in jail is always looking for a deal to get out of jail. By contrast, a defendant who is not in jail is a lot less motivated to take a deal.
Prosecutors want bail set high because that makes it easier for them to make the defendant take a deal. Many judges are complicit in this. The other day I challenged this issue with a judge who had set bail rather high. The judge claimed not to have had enough information. So how did the judge choose any particular bail amount? My cynical side suggests that bail was set high with the expectation the defendant wouldn't make bail and would be stuck in jail. The defendant's family made bail anyway.
Sometimes when the defendant makes bail, it's through a bail bond. The bail bondsman charges the defendant's family a fee for posting the bond, and that fee is substantial. Typically the fee is about 10%. My client with $90,000 in bail ended up spending about $7000 on the bail bond. Even if he wins (and he will) he never gets that $7K back.
This system is particularly unfair to the poor, as they can rarely afford any level of bail. I've even heard that one local judge sets bail on alleged prostitutes (a misdemeanor offense), and by the time the police lose the evidence they've already spent a substantial amount of time in jail. The women charged with such offenses are often poor and rarely have spare money lying around for bail.
One of the unfortunate realities of being a criminal defense lawyer is that the people who call me about their family member in jail usually can't afford me. I can tell this right away because they couldn't afford to bail the person out.
Here I am, one of those heartless Republicans, and I'm complaining about how the poor are treated. Hmm. Where are the Democrats on this? But now I should be on my political blog.
First, the true purpose of bail -- to make sure the defendant shows up for Court. See People ex rel. Lobell v. McDonnell 296 N.Y. 109, 71 N.E.2d 423, 1947. It is particularly important where the defendant is perceived as a flight risk. OJ's drive in the Bronco is a good example of how a defendant can ensure he is denied bail.
But what about where the defendant shows no sign of being a flight risk? It is nevertheless very common for judges to set bail at a very high level in some cases. Two of my recent cases are great examples. In one, my client grew up in the area, owns a home, is married, has kids and a substantial extended family, has a stable job with the government, and faces one of the weakest prosecution cases I've ever seen on relatively minor felony charges. Bail was set at $90,000.
--Note--
If you're about to face a judge who's going to decide bail read that paragraph above again. If you live in the area, own a home, are married, have kids, and have a job, those are all things you should say to the judge before he sets bail. It's hard to know when to say it, but at some point, say this: "Your Honor may I be heard on bail?" Wait for the judge to give you a chance to speak. He or she probably will. Then say: "Your Honor, I've lived in this area for _______ years. I own a home. I'm married and we have ___ kids. I have a steady job. These are important factors the law says you're supposed to consider in setting bail. I'm not a flight risk. This is my home. Please release me on recognizance."
However, do not talk about the strength or weakness of the prosecution's case. You don't want to speak about that in open court yet.
--
I've got another case where my client, from out-of-state, drove over four hours to appear in Court to face charges similar to the one above, and bail was set at $50,000.
Let's get this straight. The guy drove up to Court to face the charges from out of state. How is this defendant a flight risk? How is the other defendant a flight risk?
And that brings us to the improper purpose of bail. In many cases the defendant is unable to make bail and remains in jail while the case is pending. This has one very profound effect, and everyone in the system understands it. A defendant who is in jail is always looking for a deal to get out of jail. By contrast, a defendant who is not in jail is a lot less motivated to take a deal.
Prosecutors want bail set high because that makes it easier for them to make the defendant take a deal. Many judges are complicit in this. The other day I challenged this issue with a judge who had set bail rather high. The judge claimed not to have had enough information. So how did the judge choose any particular bail amount? My cynical side suggests that bail was set high with the expectation the defendant wouldn't make bail and would be stuck in jail. The defendant's family made bail anyway.
Sometimes when the defendant makes bail, it's through a bail bond. The bail bondsman charges the defendant's family a fee for posting the bond, and that fee is substantial. Typically the fee is about 10%. My client with $90,000 in bail ended up spending about $7000 on the bail bond. Even if he wins (and he will) he never gets that $7K back.
This system is particularly unfair to the poor, as they can rarely afford any level of bail. I've even heard that one local judge sets bail on alleged prostitutes (a misdemeanor offense), and by the time the police lose the evidence they've already spent a substantial amount of time in jail. The women charged with such offenses are often poor and rarely have spare money lying around for bail.
One of the unfortunate realities of being a criminal defense lawyer is that the people who call me about their family member in jail usually can't afford me. I can tell this right away because they couldn't afford to bail the person out.
Here I am, one of those heartless Republicans, and I'm complaining about how the poor are treated. Hmm. Where are the Democrats on this? But now I should be on my political blog.
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