As a private attorney, bail was never an issue. Clients can’t do a lot of lawyer shopping from jail. All of my clients were already out on bail so I had very little experience with the concept. Little did I know how vitally important this concept was.
The soonest someone can get a jury trial after they are arrested is roughly 4 months. That’s a quarter of the year. That’s 120 days in jail. And we all know the wheels of justice spin slowly; 4 months is ideal, and ideal is rarely reached. The average wait will be closer to a year than 4 months. Discovery takes time. Pretrial motions take time. Trial preparation takes time. The best results in a lot of things are not achieved by rushing important steps. But time is your enemy when sitting in jail wrongly accused of a crime you did not commit.
Wasting away in jail prior to a conviction is utterly inconsistent with the our beloved presumption of innocence in this country. Yes, there are exceptions. The main exception is for capital offenses (think murder). Another exception is when the state shows the suspect is a threat to the victim or to the community (key emphasis on the ‘state shows’).
That’s all great in theory; reality is a bitch.
Missouri Supreme Court Rule 33.01 supports our presumption of innocence. The very first sentence reads “Any person charged with a bailable offense shall be entitled to be released pending trial”. I assure you, those are just words to these trial judges. They’ve seen too much crime and criminals; they are jaded to our American ideals.
Section d of that rule reads as follows: “The court shall in all cases release the accused upon his written promise to appear…”. Again, more hollow words that sound great in theory, but don’t get enforced by our judges. That section of the rule goes on to list 6 ‘conditions’ that can be added to a written promise to appear, and again, the rules uses the word “shall”, but the courts don’t oblige. They’d rather just keep the bad guys locked up while facing trial.
Section e of that rule describes 10 factors the court “shall” consider when deciding bail. All 10 “shall” be considered. Today, I witnessed a judge throw down a $100,000 bail on an indigent person in 0.1 seconds and denied any opportunity to argue for a reduction. How can one consider 10 factors in less than a second? When the law uses the word “shall“, does that mean something different to judges then to rest of us normal average folk?
I thought the most important part of my job was going to be convincing juries of my guys’ innocence, and ultimately, that remains true. But right under that is getting them the F out of jail while the legal wheels spin on in their case. Because if I don’t, they’ll just plea out to whatever deal is on the table…