Saturday, April 19, 2008

"The Weaker the Case, the Higher the Bond"

A couple months back a potential client called, asking if he should take the polygraph the detective requested. I had just read the notice in the local police union newspaper reminding officers that "if an officer is involved with a critical incident and is questioned by an investigator, tell the investigator that "I'm just waiting for my attorney." I also remember what my father, also a lawyer, told me: "very respectfully tell the officer that you don't wish to comment without an attorney being with you."

Of course, the next day the guy was arrested and was told by the arresting officer, "you should have taken the polygraph." His bond was automatically set at $25K for the charges he faced.

At his preliminary hearing, I took a chance that waiving it would be more likely to accomplish getting him out of jail while he awaited trial. I did this because I knew the judge had been on the bench less than six months, that the case involved child sexual assault charges and that winning a "prelim," would be highly unlikely, given the charges and unlikelihood that a brand new judge would not bind over such a case even on the flimsiest of evidence.

Instead, I focused on reducing my client's bond. The prosecutor said, beforehand, that she wouldn't agree to the reduction that I wanted(from $25K to $2.5K) but that she would agree to some reduction. I thought a bird in the hand was better than two in the bush.

And for a minute I thought my approach would work! After I told the story about the phone call to the court, the prosecutor agreed with me that the bond should be reduced to $2.5K. But the judge, confirming my hunch that he'd be difficult to convince, said, "No, these are serious charges; I'll reduce it to $10K."

Thinking I could try again in District Court, I filed a motion for a bond review and went to court Friday morning. I laid out, in addition to what I discussed previously, the following reasons:

1. The felonies that were mentioned in the pretrial services report were not convictions, but dismissals, something the judge was being told for the first time!

2. The fact that my client had previously been acquitted of raping, making terroristic threats against, and pointing a gun at his ex-wife, mother of the child involved by a well-known conservative judge named Ronald Reagan at a felony bench trial a few years earlier.

3. That, while my client had refused a polygraph, my client's ex-wife had taken one and failed it!

The judge interrupted me once, telling me to "cut to the chase." I almost asked him if he was at all worried about the possibility of keeping an innocent man in jail, but I instead apologized, telling him that my previous involvement before the arrest made me feel bad about where he now found himself.

Knowing that I better "cut to the chase," but also knowing that I needed to make a good record, I wrapped up my plea by asking for the electronic monitor to be ordered, so that not only could the court monitor my client's whereabouts but that he would also have an alibi if his ex-wife accused him of violating the no contact order.

What the judge said next reminded me of what Tommy Lee Jones' character said to Harrison Ford's in The Fugitive. Remember the scene where the Fugitive says, "but I'm innocent!" and Jones says, "I don't care?"

Judge [redacted], looking relieved that I'd finally stopped talking, said something truly stunning: "Well, I'm not going to try the case today. And in my experience, the weaker the case, the more likely the defendant is to run. So, I'm leaving the bond as it is."

I guess, by that logic, he probably releases the people caught with the smoking gun on their own recognizance, right? I mean, they're not likely to run since it's a strong case. But the ones held on weak evidence, who might be the victims of people trying to use the criminal justice system to fight their own petty battles and to retaliate, those are the ones who need high bonds, since they're "more likely to run."

As depressing as it is to run into a judge who not only applies this logic but openly says it on the record, it's also motivating, at least for me. Imagine the result such thinking would lead to in the absence of the limitations on governmental power laid out in the Bill of Rights. Imagine if we had to try the case to a judge who thinks along these lines rather than to a jury of my client's peers? Imagine what the criminal justice system would look like without the Constitution's ban on excessive bail?

Now imagine what it would be like to be innocent and forced to await trial in the max mod of a jail for at least six months with a bond that's half your annual salary, dealing with a "justice system" that applies such logic?

Not exactly motivating, is it? I guess I better be motivated to convince the jury of what I couldn't convince the judge to do: Let my client go home!

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