A Tale of Two Bails

This could be called the Tale of Two Cities, or the Tale of Two Counties, or even the Tale of Two Judges. Instead, I choose to call it the Tale of Two Bails.

As most of you know I practice law all over the State of Missouri. One day I may be in Lafayette County, the next day and Howell County and then back to St. Charles County. Because of that I am exposed to a wide range of judicial philosophies.

In rural Missouri we elect our judges. It really isn’t a bad way to do it. However, in some counties judges are prone to lack enough backbone to vigorously support the Bill of Rights. They think that granting bail to somebody is dangerous because the voters might not like it.

I agree that elected officials should reflect the wishes of the electorate. I also think that judges fall into a separate category. Judges should not go around pandering to the electorate. If that were part of their obligation we would just let them step aside and we would have a good old-fashioned lynch mob.

So let me tell you the tale of two bails.

In a recent case I was representing a man who was charged with murder in the second degree, or in the alternative, involuntary manslaughter. He was a young man who had never been in trouble before. He has been in jail for quite a few months. His family has been unable to raise bond money.

We filed a motion requesting he be released on a lower bond. He had family in the area, he was from the area, he had a job before he was arrested and there is no reason to believe that he would flee before trial.

We had a hearing on the Motion. At that hearing the defendant’s mother testified and the mother of the person who was killed testified. Both were in favor of reducing the defendant’s bond and allowing him to be released before trial. Seems like a no-brainer, right?

The judge denied the Motion. It really seemed the judge didn’t even listen to the evidence. In giving the ruling the judge seemed more interested in the fact that the defendant’s mother wore a T-shirt that the judge found objectionable, than anything else. That’s right, there was a slogan on the front of the defendant’s mother’s T-shirt that caught the attention of the judge and the judge went so far to mention that in making a ruling.

Now the slogan on the T-shirt was not profane or in-your-face. It was a cute slogan that a large charity had used to sell the T-shirts in a fund-raising effort. I have seen them before. I admit I haven’t seen one in court before. Do I wish the woman hadn’t worn the T-shirt? Yes. Do I think the judge should have let that have any impact on the ruling? No.

So this young man sits in jail awaiting his trial. He has lost his job, his family is suffering, he has not been convicted of anything, and yet the bond is denied to him. No bail, stay in jail.

Let me tell you another story. In a different county, far, far, away, I represent another man who is charged with forcible rape. He is in jail awaiting trial. Well, he was in jail awaiting trial. He is now free on bond.

My client in this particular county was accused of forcibly raping a woman at gunpoint. He had previously been in prison for child molesting. Oh, that was his second trip to prison. His first trip to prison was for burglary. He was finally paroled on the child molesting charge and that is when he picked up his new charge of forcible rape.

Under those circumstances we did not even consider filing a motion for bond reduction. It just did not occur to him or to me that a judge would consider reducing his bond and letting them post bail on these charges. We talked about it. He was willing to sit in jail awaiting trial. I will tell you that the charges against him are very weak. There is very little evidence that he committed this forcible rape. But that will be determined at trial. It will be determined the same way the murder trial is determined; at trial. The eventual guilt or innocence, in my opinion, of the defendant should not weigh on the ultimate issue of a reasonable bail.

Suddenly my client in the forcible rape case developed a fairly serious health problem. The local jail took him to the hospital. The hospital said that he needed surgery. The prosecuting attorney called me. He asked me if I was going to file a motion for a medical furlough for my client. He explained that if I filed a motion for medical furlough, my client could be released on his own recognizance (that means he does not have to put up any money at all for bail) so that he could get his medical treatment and the county would not have to pay for it. Whoa!

I called my client. We talked about this. He thought it was a good idea. Who wouldn’t?

Now, make no mistake this man does have a serious medical condition. It affects his heart. He is going to have to have surgery. So on the appointed day we appear before the Court for our Motion for Medical Furlough. The Judge listened to me and the Prosecuting Attorney explain to him that the defendant had this condition and needed treatment.

He did not require medical records, testimony from doctors, x-rays, reports, records, or anything else other than the representation by two officers of the court (I’m talking about me and the prosecutor) that this man needed treatment. Based on that representation he entered an order releasing the man from jail pending trial so that he could get medical treatment.

This is what any good judge would do. This is what a judge who has confidence in his rulings would do. This is what a judge who understands the Bill of Rights and the justice system would do. I cannot imagine getting this ruling in the other county. I can certainly not imagine getting this ruling from the judge in the murder case under any circumstances.

I’ve said it before, I will say it again, there are judges who do not fully appreciate their role of impartiality in the system. There are judges who talk about the “victims” before they have ever heard one word of evidence in a trial. There are no victims until a defendant is convicted. Until then there are only “alleged victims.”

In every trial the judge reads instructions to the jury about the defendant being presumed innocent. I don’t know how some judges can read that instruction and never hear it.