Raise the Bail – Don’t Tell the Defense!!

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Raise the Bail – Don’t Tell the Defense!!

*Farm Fresh Media Staff Writer

As we’re finally starting to take a clearer-eyed look at the U.S. criminal justice system after a legacy of punitive excess: the enormously expensive and devastating war on drugs that took place throughout the last few decades and extremely punitive three strikes laws for example, we’re finding that prosecutors have a great deal of clout, and hold many of the cards in the average criminal defense case.

So when the media uncovers loopholes that prosecutors use to push their advantage even further, those loopholes seem particularly egregious.

A bombshell report from The Intercept shows a pattern of abuse of a pre-trial bonding process in New Orleans Parrish that illustrates these concerns.

Reporter Jordan Smith starts out with an anecdote of a self-defense case where bail was raised ex parte – without consulting with the defense. Smith then brings in a wider analysis where the prosecution may use a return-on-indictment process to increase bail, or simply consult with the prosecution without ever notifying the defense at all. In general, that’s not how it’s supposed to work.

Ex parte orders, when they are allowed, are supposed to be temporary, but in practice it’s extremely hard to decrease bail after it has already been increased by the judge.

This trend further exacerbates a widely documented problem including in Matt Taibbi’s groundbreaking book ‘The Divide,’ where the criminal justice system weighs excessively on the poor by denying them their freedom prior to trial. It’s all too easy to take Taibbi’s reporting, which is sometimes tinged with tongue-in-cheek irony, as cynicism in the face of corruption, (for example, the apt metaphor in Taibbi’s tome Griftopia of ‘a thief sitting on a second thief’s back, using a third thief as a whip,) but exposing these injustices should really inspire outrage – and in many readers, it does.

Millions of defendants who can’t raise a certain sum of money, whether it’s $500 or $5000 or $50,000, must remain incarcerated, sometimes for years, until the legal wheels finally turn toward their case. In addition to depriving them of precious days, weeks and months of their lives, this pretrial incarceration also increases prejudice, as a defendant appears at trial in a jumpsuit.

Cutting through all of the legal language such as ‘return on indictment,’ ‘ex parte’ and other buzzwords, the bottom line is that prosecutors in the Louisiana courts are having judges reset bails higher without informing the defendant or his or her counsel, and sometimes using confidential information to do so.

If that’s happening in New Orleans, it’s certainly happening all over the rest of the country as well. In here’s one example from the firm of Greg Hill and Associates working in Los Angeles and the surrounding counties, where a professional criminal defense attorney writes:

“Trial court may not increase bill from $90,000 to $1 million based on confidential information provided to judge in a private meeting.”

In this applicable case study, the defendant was re-arrested after the ex-parte-imposed higher bail, which the legal writer suggests “must have been surprising.”

It’s these kinds of “surprises” that legal experts are arguing go against the spirit of our legal system and constitute unethical utility of legal loopholes to further seal the fates of less wealthy and less fortunate defendants

Consider, if you will, this innocent question posed on the forum of the Texas District and County Attorney’s Association by “Larry L.” assumedly practicing law there.

“Defendant is out on bond (felony), and believed to have committed new offense (misd.). Am filing a motion to increase bond. Defendant has counsel. Can I present Motion to Increase Bond to Court and obtain an order prior to serving copy of the motion on Defendant’s counsel (who could warn defendant and potentially delay re-arrest)? I think the prior DA routinely did this, but want to make sure there is some authority for it. Please help.”

Ah, the naivete!

Some respondents come back with the proper respect for disclosure:

“I generally do them at the same time,” writes kpm. “I either have the case set on the docket, or wait until the next setting (assuming it isn’t high risk and urgent). Then, I let the judge and bailiff know that I have a motion to present so that they can put the defendant in the jury box and watch him so he can’t flee. Then when Defense arrives, I present them with motion at the bench and have D taken into custody.”

“As a practical matter, consider letting the bonding agency know of your plans before you file the motion to raise bond. The bond agents I used to work with when I was in the trial division proved very helpful in insuring Ds showed up to any hearing on a motion to raise bond.”

This use of bond agencies may be proper, but here is a different response – and note that prior to this posting, Larry has himself suggested that there may be an issue of BASIC FAIRNESS! This way:

“Thank you for your responses,” Larry writes. “My main concern was presenting the motion and order to the Judge ex parte and prior to it being served on the defendant. There is not an allegation of a violation of a condition of the existing bond, just a motion to find bond insufficient, so the prior thread was not extremely helpful. I know I would have a problem with a defense attorney presenting a motion to reduce bond to the judge ex parte and getting an order signed before there was any notice to the state. Thoughts?”

At this point, member Terry Breen puts in two cents:

“My understanding is that a bondsman can ask the court for a capias (called “getting off the bond”) if he has reason to believe the defendant is going to abscond, and have his client picked right up–no hearing required. If the court denies the bondsman’s motion, and his client fails to appear, the bondsman is off the hook for the bond.

If a bondsman can do it, why can’t a prosecutor? It makes no sense to require the state to notify the defendant of their wish to raise bond, if they have a real fear he is about to abscond.”

Nice try!

It might “make no sense,” but it is a matter of established fairness. Try that argument when you have started to routinely use ex parte orders to increase bond, and some enterprising advocate has found you out!

Maybe stick with precedent.

What the wily advisor could have maybe said instead:

“Larry, due to the deference that the courts show us, you don’t really have to disclose bail increases to the defense at all. I mean, a lot of them are criminals, so they’re just going to re-offend while they’re out, right?”

At GTKYF, we talk about the lack of robust public defense, but we also talk about excessive prosecution. That’s because they are two sides of the same coin. We cannot expect prosecutors to police themselves – many of them are entirely too partisan, and too bent on promoting themselves and advancing their careers, no matter what the cost. We need to be vigilant as public citizens, and advocate for those who have been targeted by an overzealous criminal defense system. As usual, here, the devil is in the details. 

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