05/22/2016
After more than 30 years of hearing trial judges remind jurors that my clients are "presumed innocent", it is sometimes disheartening that many of those judges do not act as if they truly believe in this most basic truism of our system of justice (at least, as we true believers are reminded over and over again, until they are either found guilty after trial or admit their guilt by pleading guilty).
This is a concept based in the notion that all humans are fallible, including the police, prosecutors and the witnesses who (sometimes) misidentify or, God forbid, lie about the person who committed a crime, is, itself, imperfect, but testing the truth in the crucible of a trial is the best humans have devised to date.
My dismay emanates from the numerous times I have experienced judges who set exorbitant bail in whatever outrageous amount the prosecutor wants in cases during my clients' first appearance in court when so little is known except what the prosecutor is required or, even, willing to reveal along with that law enforcement officer's "recommendation" for an amount that will "ensure the defendant's return to court when required" and "to protect the community".
Those two considerations, in the context of the defendant's past history, character and ties to the community that make it more or less likely that he/she will voluntarily return to court along with the seriousness of the crime alleged and the often equivocal strength of the evidence against the person are and should be the only concerns of the magistrate who decides what, if any, amount of money or property will ensure their return to court to face ultimate justice - a finding of guilt or innocence. Too often, faced with dueling lawyers - both of whom are cloaked with the requirement to be truthful with the court(Officers of the Court are not allowed to lie about what they KNOW but are always required to impart what they have been TOLD truthfully if they choose to speak. The ethical distinction between these advocates is that the defense attorney MUST remain silent about damning facts he knows about the crime charged but the prosecutor MUST reveal facts he knows that tend to show the defendant may be innocent), Judges will err on the side of setting bails that ensure that a defendant will remain incarcerated rather than a "reasonable" amount that will, simply, ensure the safety of the public and that the accused will return to court when required to do so.
An accused individual who is incarcerated during the lengthy time from arraignment until trial - often 6 months or more - is at a great disadvantage in proving his innocence. He is not able to help his lawyer as much as when he is free in the community. He is under immense (and unfair) pressure to plead guilty to be able to gain his freedom sooner. Far too often, he has lost his job, his home and, possibly, his family support system by the time a trial takes place. How is any of that hallmarks of a fair system of justice? Granted, there are cases where high bail is warranted. But, in this society the system of bail is far too often used to impose preventive detention where there is little of no chance of harm to the community by allowing a defendant to work to support his family and be able to actively assist in his own defense. Effectively, the deck gets stacked against the accused.
This unfair application of the rules regarding "reasonable bail" must change and it is the Judges of this country who are the gatekeepers of any such progress in this regard. After all, every defendant when first charged and before a determination by full trial or guilty plea is (presumed, if not actually) innocent!
