Oscar Pistorious Should Focus on the Marathon

A criminal case is a lot like a war. The trial is the final battle that most people see and read about. Along the way, there are smaller battles fought by opposing sides employing a large amount of strategy.

As we continue to follow the case of Oscar Pistorius from South Africa, the bail hearing outlines the first such skirmish.

In New York State, the bail hearing is usually an informal proceeding where the lawyers argue over whether the defendant is a flight risk. The attorney for the people uses Criminal Procedure Law Section 510.30 to argue the following factors in favor of bail:

1) the defendant's character, reputation, habits, and mental condition,
2) the defendant's employment and finances,
3) family ties,
4) criminal record,
5) prior warrants,
6) weight of the evidence against the accused, and
7) the possible sentence.

The defense then argues the reasons why the defendant is not a flight risk using these same factors. The entire process takes less than five minutes.

And that is why the bail hearing against Oscar Pistorius is fascinating. It has stretched on for days and both sides have presented a significant amount of evidence. The first few steps in the criminal proceedings are akin to a prosecution offensive. The police decide when to make an arrest and on what charges, the prosecution lays out only the evidence they want to, and the prosecution controls the secret grand jury proceeding. The defense strategy is usually to weather this storm and gain as much information and pre-indictment discovery as possible, without giving too much of their defense away.

Within the first few hours of Pistorius' first court appearance, the defense had relayed their client's statement and entire defense. Now the prosecution can spend their time destroying his statement and proving it false. Defense attorneys and their clients must always balance the short-term goal versus the long-term ones. No one wants to stay locked up, but sometimes remaining in custody might help you win the case. It's difficult to explain to a client that remaining in jail is good for them in the long-run as it might help win their case. If Pistorius wins his freedom at the bail hearing, he'll win an early battle, but is it worth losing the war for his life?

That being said, South African law is certainly different than New York State and I expect to have a post up relating to those differences at some point.

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Bail and Bonds

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Bail and Bonds

New York Governor Andrew Cuomo just vetoed a bill that allows charitable groups to post bail and bonds for incarcerated defendants. 

That doesn't seem in the Christmas spirit does it?

The point of bail is not to punish, but to make sure the defendant appears for all court proceedings.  The judge can consider the following factors when analyzing bail:

1) the defendant's character and mental condition,
2) employment and financial resources,
3) community ties,
4) criminal record,
5) prior failures to appear in court or warrants,
6) the weight of the evidence against him, and
7) the sentence he's facing.

Bail exists because a person is more likely to return to court if they have a significant financial reason to do so.  If the defendant doesn't show up to court, the money he puts at risk to gain freedom is forfeited.  Otherwise, what's to stop the defendant facing twenty-five to life from running to Columbia?

The primary types of bail are cash, bond, or property.  An example will explain all three.  The judge orders the defendant held on $100,000 bail.  The judge also says the defendant can post that money in the form of cash, bond, or property.  For the defendant to secure his release he must post $100,000 cash which the court holds until the case is completed. 

He can also apply to a bail bondsman.  The bondsman will post the $100,000 and in exchange the defendant will pay a non-refundable fee.  The fee is usually ten percent of the total.  In our example, the defendant would pay the bondsman $10,000, and the bondsmen would put the $100,000 at risk.  The $10,000 is the bondsman's fee for risking his $100,000 if the defendant doesn't return to court.

Property means that the defendant can use real property as collateral, if they have enough equity in the property.  He can pledge his $120,000 house to make bail.

The charitable groups discussed in the article act like the bondsman.  They agree to put up the money for the defendant's release.  The problem is that they do not seek anything in return.  The defendant has no financial stake in returning for court proceedings.  If he fails to appear, the defendant does not lose anything because he never posted anything.  This brings us back to the reason for bail in the first place.

On top of that, the charitable groups are not regulated and licensing is not required.  We can see the pitfalls.  What is to stop a group of drug dealers from raising money and placing it in a charitable group whose purpose is to bail out those who get arrested?  Now only the charity is connected to the money.  Money raised through crimes can be laundered through charities whose sole purpose is to free the people who illegally raised the money in the first place.

I am not against a form of this bill.  A staggering number of defendants remain in custody on minor charges who cannot afford even $500 bail.  A lot of these defendants receive non-jail sentences at the conclusion of the case.  The legislature needs regulate and license these groups, however.  Otherwise, abuse and fraud will reign.

This also raises the question of whether lawyers should be allowed to bail out their clients.  Looks like a conflict of interest, doesn't it?

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