How to Win a Motion to Reduce Bond in Missouri State Courts
It is often the case that your client begins a case with a bond set so high that he or she despairs of pretrial release. With a few simple tips, you can greatly enhance your client's chances of convincing the prosecutor to agree to reduce the bond, or to win your bond reduction motion in court.
IntroductionIn any criminal case, of whatever severity - be it a municipal ordinance violation, a state charge, or a federal case - the issue of release on bond is the first, and one of the most important issues to address for many reasons. The client cannot continue to work and support his family, obviously, if he is locked up pre trial. In addition, however, studies have shown that the probability of a not-guilty verdict is severely reduced when the client is not free to participate in his own defense while on bond. Finally, a client is less vulnerable to the prosecutor's quite effective leverage of offering a "time-served" recommendation for disposition if he is free on bond. Therefore, it is essential for defense counsel to be prepared to make a compelling legal and factual argument for the reduction of bond if the client cannot afford the amount initially set and/or the prosecutor will not informally agree to a reduction. With a relatively small amount of preparation, counsel can mount a persuasive argument to the prosecutor and to the trial court in favor of her client's release.
Legal AuthorityIn Missouri, two separate legal provisions govern the trial court's discretion regarding the issue of release on bond. The Missouri Constitution, Article I, section 20, provides that "all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great." Mo. Const. art. I, sec. 20 (emphasis added). Similarly, Mo. R. Crim. P. 33.01 provides "Any person charged with a bailable offense shall be entitled to be released pending trial," Rule 33.01(a); and "The court shall set such conditions for release as will reasonably assure the appearance of the accused," Rule 33.01(b) (emphasis added). Moreover, Rule 33.01(d) mandates that "[t]he court shall in all cases release the accused upon his written promise to appear, unless the court determines that such release will not reasonably assure the appearance of the accused." Rule 33.01(d) (emphasis added). In other words, unless the client is charged with a capital offense where the proof is "evident or the presumption great," both the Missouri Constitution and the state's Criminal Rules presume release upon a recognizance or signature bond, unless the trial court determines that such release will not reasonably assure his or her appearance at future court dates. The rule sets forth five specific conditions, together with a "catch-all" provision, which gives the trial court wide discretion in determining what conditions to impose upon the client's release. Finally, Rule 33.01 (e) provides guidance to trial courts "[i]n determining which conditions of release will reasonably assure appearance...." Courts may "take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character, mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings. Mo. R. Crim. P. 33.01(e). The Missouri Supreme Court has recently noted that "The current constitutional provision [on bond] ... repeatedly has been interpreted by Missouri courts to mean that "the only purpose of bond is to secure the appearance of the defendant at the trial." Consistent with this purpose, Missouri law and this Court's rules provide that the purpose of bail is to "reasonably assure the appearance of the accused." State v. Jackson, 384 S.W.3d 208, 215 (Mo. 2012) (en banc) (citations omitted). The Court went on to acknowledge that, although "in 1992 the people of Missouri expanded the purpose of bail to include protection of crime victims by adopting article I, section 32(2), they did not thereby permit use of bail to keep a defendant from being released. Rather, section 32 provides only that bail may be denied or special conditions imposed notwithstanding the right to bail with sufficient sureties under article I, section 20 "upon a showing that the defendant poses a danger to a crime victim, the community, or any other person." Id., citing Mo. Const. art. I, sec. 32(2). It is important to note that the State has the burden of "show[ing] that the defendant poses a danger to the victim or public." Jackson, 384 S.W.3d at 216. The narrow issue in the Jackson decision was only whether a trial court's "imposing cash-only bail  violate[s] article I, section 20 of the Missouri Constitution." The Court held that such bail is constitutional in the state of Missouri. Jackson, 384 S.W.3d at 217. However, the Court was quick to point out that "[t]he problems identified by Mr. Jackson ... are not with ... cash-only bail ... but with abuse of cash-only bail provisions so as to set bail at an amount that the defendant cannot secure. ... it is a concern with the amount of bail, not with the form of bail permitted." 384 S.W.3d at 216 (emphasis in original). Although only dicta, the Court sends a strong message about the unconstitutionality of bail which is "set higher than necessary to secure the defendant's appearance or to protect the public, [as] it constitutes an impermissible punishment, contrary to the venerable presumption that a defendant is innocent until proven guilty." Id., citing Mo. Const. art. I, sec.21 ("providing that 'excessive bail shall not be required.'").
Practical ConcernsAccordingly, in facing a situation where the client cannot afford the amount of bail initially set by the court, counsel should be mindful of the factors the trial court must consider in considering a motion to reduce bond, as set forth in Mo. R. Crim. P. 33.01(e). If feasible, counsel might consider consulting with family members about real property which could be posted as security, as well as their support of your client. If the client is comfortable with your speaking to his or her employer, and that employer is supportive, evidence of a secure job can be extremely persuasive to a trial court in reducing bond. Clearly, if the client has never been in trouble before, or has only minor prior involvement with the law, such evidence is compelling. Finally, if counsel is able to review discovery and interview witnesses, the issue of the strength of the States's case may provide impetus not only to the court, but also to the prosecutor, to consider agreeing to a reduced bond, short of a hearing. Certainly, courts are never enthusiastic about lengthy (or even brief) hearings. However, there is no reason that defense counsel cannot synopsize the witnesses' testimony, especially if those witnesses are available and willing to be in the courtroom and physically show not only that they support the client, but also that they silently affirm counsel's synopsis, and thereby make a moving argument in favor of bond reduction, without the need for an overly lengthy presentation. Although such a presentation may require time, it will certainly be time well spent in the client's eyes, especially if counsel succeeds in obtaining his release. In addition, it will be time well spent because it allows the client to continue to work and to assist more meaningfully in his or her own defense. finally, at the end of the day, it is time well spent for counsel's own purposes in preparing the case for trial and/or successful plea negotiations down the road. Bond is typically the first big hurdle in any new case and can prove frustrating without a plan of attack and the proper legal and evidentiary support. The Missouri Constitution, Rules of Criminal Procedure and Supreme Court all offer solid legal authority for a bond that is not set so high that it prevents the client's pretrial release. Often, the client can offer equally solid evidentiary and factual support for that legal argument.
ConclusionFrom the initial client interview, therefore, make sure to gather facts tracking the factors set forth in Mo. R. Crim. P. 33.01(e). Question your client about his family and community involvement and support, his employment, his prior convictions (or lack thereof), and his or her health, education. In addition, make sure to try to interview witnesses and test the State's case. These efforts can be time-consuming at the outset of a new case, but pay huge dividends down the road.