Pre-trial custody without bail is lawful an attorney’s point of view


The following article has been written by Bob Maloney. It includes some editorial content which is the opinion of the writer.

Having been a criminal trial attorney for some years having represented both the prosecution and the defense, I have often been puzzled with jury verdicts that were contrary to my personal belief. I’ve repeatedly been told, and believe it is true, that reasonable men will differ. What jurors debate about in their deliberations are the facts presented in the trial. How jurors can differ on the same facts presented in a trial is no more difficult to understand than how observers can differ on whether a glass of water is half full or half empty. The answer, I think, is that each juror has a different perspective based upon their individual history and background which includes their education.

The first goal in motivating people to vote in a specific way is to educate them in relevant facts which will encourage a vote in the desired way – conviction for a prosecutor and reasonable doubt for a defense attorney. Which facts will accomplish that goal in a trial will depend upon the personal background, education, and experience of the prosecutor  or defense attorney.

Scales of Justice
Scales of Justice USA

Once facts are identified and presented, they then need to be argued. That is, articulating what facts are important or not, and why. The absence of facts, even when the result is correctly sought, destroys the validity of the argument because a conclusion must be based on facts and not mere opinion, rumor, or hearsay. I see so many political arguments in and out of court today being lost as a result of the absence of facts. Doesn’t anybody have the skill today that policemen and police women have in gathering facts to prove a point?

It is our obligation as citizens whose careers have been built on public safety to educate the public on what we know that will enhance public safety. My personal belief, and perhaps yours, is that public safety will be enhanced by pre-trial confinement without bail of people charged with violent crime. Bail reformists in the last several years take a contrary position. For those judges afraid to confine pre-trial defendants charged with serious violent crime set on the thought that such people absolutely are entitled to their liberty pending trial, these judges (and prosecutors and legislators too) need to be educated, on a case called United States v. Salerno (481 US 739 (1987)).

Salerno was a case where Mafia defendants were charged with serious crimes including conspiracy to commit murder. The federal bail act was at issue, the prosecution seeking pre-trial confinement and the defendant’s seeking release on bail pending trial. An adversarial hearing was held where the prosecution presented the danger the Mafia and its members engaged in and the danger to the public by release of the defendants.  Defense attorneys were able to cross examine the prosecution’s witnesses on these issues. The defendants were then ordered held without bail pending trial.

Pre-trial custody without bail is lawful an attorney's point of view

Salerno stands for the proposition that a criminal defendant’s due process Constitutional right to freedom and liberty pending trial can be over ridden by the public’s right to safety. A factual showing can be made by experienced officers and detectives in a bail hearing describing how, even imprisoned in state prisons, persons can continue serious violent criminal conduct through others, intimidate witnesses, and continue to facilitate serious crime victimizing the public but particularly more so if they are at liberty. This kind of factual showing is easier if the defendants are actual gang members or associates. Actual murderers or those who attempt murder by shooting firearms at people but can be shown dangerous to the public too pending trial since once the risk of harm by an intent to shoot/kill is shown, the certainty of public safety is in doubt and that needs to be argued.

Where local or state laws do not exist to allow for bail hearings that include consideration of public safety, they should be made patterned after the federal bail laws and rules. Legislators should be made aware that such laws are Constitutional and valid as described in Salerno. Where such laws exist, prosecutors should be educated on the principles and conduct authorized in Salerno. Most importantly, judges need to be educated on Salerno principles that allow confinement of criminal defendants charged with serious violent crime pending trial without bail.

Seal of the United States Department of Justice.
Seal of the United States Department of Justice.

When judges become aware that they have that kind of confinement authority and that the public knows it, they may be more inclined to order custody without bail pending trial. When judges are comfortable with their authority to deny bail (Salerno), factual showings of increased dangerousness of defendants by knowledgeable officers testifying at bail hearings, even on “close calls” where reasonable men can differ on the facts in bail hearings as they can in trials, they, the judges, may be encouraged to err on the side of public safety and order custody pre-trial. More education of legislators, prosecutors, and judges needs to take place by us all to increase knowledge of the lawfulness of pre-trial custody without bail starting with an appreciation of United States v. Salerno and its principles.

About the writer: Bob Maloney.  55 years in the federal and state Criminal Justice Systems in 3 states, mainly California. Motorcycle Traffic Officer days; law student at night (San Francisco/Oakland; later Sgt. in Los Angeles); criminal trial attorney including capital murder cases prosecution and defense; twice elected County District Attorney 32 years apart; ten years a Special Prosecutor for Murder Cases; ten years a criminal defense attorney and public defender; Certified Police Academy Instructor at CHP Academy, State Fish & Game Warden Academy; State Park Ranger Academy; local Certified Police Academy; Lifetime Credentialed Community College Instructor in Law and Police Science.

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Pre-trial custody without bail is lawful an attorney's point of view

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