Written by attorney John R. Osgood

Bail and Pretrial Release

In federal cases the rule of thumb is you either are detained without bond period, or you are released on a signature bond (your own signature and perhaps that of a family member sometimes pledging assets such as real property). It is an extremely rare exception indeed where an actual bail bondsman would become involved in a federal case, so this discussion focuses on the common daily issue of bail in a state case. Article I, Sections 20 and 21 of the Bill of Rights of the Missouri Constitution provide for the right to bail in all state cases except capital murder cases where the proof is evident or the presumption of guilt is great. The mere charge of capital murder, absent the latter proof or presumption, may still entitle the accused to be released on bail. In non-capital cases the bail may not be excessive and may only be set at a sufficient amount to ensure the presence of the defendant for trial and to protect the safety of the community. When arrested and charged, the natural tendency is to immediately start a frantic search for a bail bondsman to get the loved one or family member released on bond at the earliest moment. This is more often than not a wrong and bad decision for several reasons. The very first person that should be contacted is a criminal defense attorney. The following bullets explain why. ATTORNEY ADVICE: Early advice from a competent defense counsel is an absolute must and should take precedence over all other considerations including bond. It will often make the difference between ultimate conviction on a major charge and acquittal or a plea to a much lesser offense. REDUCING AN EXCESSIVE BOND: In a great many instances the bond will be set unfairly high and can be reduced to a more manageable amount by the attorney. This can be accomplished very early in proceedings shortly after arrest. FEES CHARGED BY BONDSMEN: Bondsmen will typically charge a 10% fee that is non-refundable and the bond fee will only cover that case filed in that county at that time unless there is a very clear written agreement to the contrary. So if the bond is $50,000, the bondsman will want $5,000 that is then simply gone forever as a cost attributable to the service provided by the bondsman. Also, an attorney will likely have an immediate read, particularly after an initial consult with the client, on whether there may be charges in other jurisdictions that might affect the overall bond situation. Bondsmen, on the other hand, are not attorneys, so there is no privilege and there is therefore a serious risk and danger in discussing the alleged offense with such persons. POST YOUR OWN 10% CASH BOND: Bonds are generally set at a specified cash amount by the court. In Missouri, the defendant is in most instances entitled to be released upon payment of a 10% cash fee paid to the Court Clerk as the bond. This money, unlike money paid to a bondsman, is then refunded to the defendant at the conclusion of the case. As a caveat, the defendant himself is legally the owner of the bond, regardless, of who helped him post it. DUAL USE OF YOUR MONEY AND BOND ASSIGNMENTS: Most attorneys will take what is called a "bond assignment" which is a document executed by the defendant that states that after the case is over the bond posted by the defendant or a family member is paid by the court to the attorney to be used as attorney fees. This enables the defendant to save the fees that would otherwise be paid to a bondsman and instead apply the money to attorney fees for a retained attorney. PUBLIC DEFENDERS AND CONSEQUENCES OF POSTING BOND: Generally speaking, as a rule of thumb, courts will not permit a defendant to have an appointed public defender if the defendant has already paid a bondsman to get released on bail under the assumption that if the person has sufficient funds to defray the cost of bond, then that person must be able also to hire their own counsel. While many public defenders are quite well qualified, there are also those who lack experience. Add to this mix the fact that the public defenders are faced with a case load that some critics say far exceeds their ability to provide adequate representation and you should conclude that the better approach is to FIRST immediately hire a good private criminal defense attorney. Then with his or her help address the bond issues. ATTORNEY WON'T ACCEPT BOND ASSIGNMENT: This too will be a rare situation. However, there may be occasions for whatever reason an attorney will not be willing to accept such an arrangement. If so, this is a situation in which a second opinion from another qualified criminal defense attorney is probably warranted. If the answer is the same, then the only choice is seek the services of a bondsman. If money is no issue, this is of course not a problem. Unfortunately, for most, money is a major issue and factor in a criminal proceedings. PRUDENT ALLOCATION OF OR LACK OF RESOURCES: As already discussed, if you are released on bond you will likely not be provided with a public defender. Depending on the nature of the offense, the amount of bond involved, and the projected attorney fees, a couple of hard decisions need to be made. ONE, while harsh as it sounds, if no attorney is willing to accept a bond assignment, the defendant may wish to simply remain in custody until trial, push for a speedy disposition, and use all available funds to hire the best possible criminal defense attorney to defend the matter. TWO, if lack of money is a deciding factor, the only alternative probably is to remain in custody and avail yourself of the public defender and pray for the best. RECENT JACKSON COUNTY MISSOURI BAIL REFORM STEPS: Following an unfortunate incident in Jackson County in March of 2010 where a released defendant killed a child in a subsequent high speed chase after having been arrested and released on a number of prior occasions for "driving while revoked", the Jackson County prosecutor announced an across board rule on bail recommendations for anyone charged with such an offense. This now appears to have been nullified in large measure by a rather detailed Jackson County Administrative Order issued by the Chief Judge which sets specific guidelines for prosecutors and defenders when it comes to bail. The order adds clarity and establishes some long needed reasonable rules on how to approach this sometimes thorny subject of balancing constitutional rights to bail and presumption of innocence against issues of threat to the community and flight risk. The full order can be reviewed on the Jackson County Circuit Court web site.

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