Articles Posted in Bail

Reacting to several recent tragedies where criminal defendants killed police officers and innocent civilians while they were free on bail before trial, Gov. Charlie Baker filed legislation last Thursday that would make it easier for judges to keep in jail dangerous defendants that are charged with felony offenses.

Baker’s bill largely focuses on the state’s “Dangerousness Statute”, M.G.L. Ch. 276 Sec. 58A, which allows District Attorneys to request a “Dangerousness Hearing” where prosecutors ask a judge to hold a defendant in custody while that defendant awaits trial, instead of releasing the defendant.

Under the governor’s proposal, the list of crimes that trigger the prosecution’s right to a dangerousness hearing would be expanded to include assault and battery against a police officer, several additional sex crimes, as well as human trafficking.  Another important change the bill proposes, is that judges would not be prohibited, as they are now, from taking into account a defendant’s criminal history when making his or her ruling on the issue of a defendant’s dangerousness.  That’s a major change.  In addition, prosecutors would be allowed to seek a dangerousness hearing at any stage during a criminal case. Presently, if the prosecution wants to requests a dangerousness hearing, it can only do so only at the defendant’s arraignment, not later – so it has only one chance to ask a judge to hold a defendant in jail before trial. The governor’s bill would expand that ability. Continue reading

As I said in Part One of this Post a few days ago, a lot of people, especially some talk radio hosts, have placed the blame for this tragedy squarely on judge Superior Court Judge Thomas McGuire, lambasting him as a “Hack Democrat judge.” I don’t think that was the problem here, but I do think that liberal judicial thinking and liberalism in general in the judiciary, can be cited as a source of this problem. But in my view as a Boston Massachusetts felony defense lawyer, the key to seeing through to the real source of this judicial liberalism, which caused Mickey Rivera to be released on bail in the first place last fall (2017), isn’t so much the judge who first released Rivera last fall (judge McGuire), as it was the Supreme Judicial Court’s instructions to Massachusetts judges on bail procedures, in its August 2017 decision in Commonwealth v. Brangan.

The SJC’s Brangan decision focused almost exclusively on one factor that lower court judges setting bail should consider – whether and how much a defendant can afford to pay. As a Boston area criminal defense attorney, I fight hard for my clients, and I am well aware of the constitutional and procedural issues relating to bail. But I don’t believe that a judge’s primary focus should be the answer to the question So, defendant Jones, if I were to set bail here, what can you afford to pay?” Whether or not bail is set for a criminal defendant, and how much, should not be brought down to the level of the proverbial car salesman’s question, “What do I have to do to put you in this car today?” Equal emphasis should be “What are the nature of the criminal charges here?”; “What is it that the defendant is alleged to have done?”; “Was any violence involved?”; “What kind of harm occurred in connection with this arrest or incident?”; “What kind of criminal arrest history does the defendant have?”; and “What are the totality of circumstances here?” Very importantly, those totality of circumstances include how much initial evidence the Commonwealth has against the defendant: Is that initial evidence weak? Strong? Compelling? Doubtful? Were there witnesses involved? What is the nature of the evidence?” To subordinate critically important and relevant questions and considerations such as these, to one overriding question:  “What can the defendant afford to pay for bail?” is in my view as an experienced criminal defense attorney, dangerous public policy and judicial guidance. Those factors should not be subordinated to one primary question – how much a defendant can pay for bail? – they should be equal to it. Continue reading

By now almost everyone in Massachusetts, and outside the state, has heard of the horrific story of how Kevin P. Quinn, an Afghanistan combat veteran, 32 year-old married man and the very recent father of his first born baby, was killed by a reckless driver – a criminal defendant who was let out on probation – evading Mashpee police in a high-speed chase. Mr. Quinn‘s car was hit head-on by one Mickey A. Rivera, a 22 year-old troublemaker from Fall River who had a criminal history with the courts. Quinn had just left the hospital visiting his wife and newborn, when Rivera, fleeing Mashpee police who were pursuing him for reckless driving and speeding, hit Burke’s vehicle head-on in Cotuit. Mr. Burke was killed instantly in the accident, as was Rivera. A passenger with Mr. Rivera, one Jocelyn Goyette, age 24 from New Bedford, was ejected from Rivera’s vehicle but survived long enough to be transported to a hospital, but now she, too is dead. She had a 4 year-old son. It is not known why she was in Rivera’s SUV at the time of the crash.

People across Massachusetts, and indeed the nation – are outraged by this tragic story.  And they have every right to be.

Now all three people involved in this police chase (with the exception of the police officer involved) are dead, including Kevin Burke. His young wife is now a widow, his newborn baby is left fatherless, and the airways and internet have heated up, because it’s been learned that Rivera was out on bail when this tragic event occurred. Rivera had been previously held in jail related to a 2015 armed robbery case that resulted in someone’s murder in Fall River. He was released on bail in that case, last fall.

Governor Charlie Baker signed legislation reforming a considerable amount of important laws in the Massachusetts criminal justice system this past April. So, how have those changes been going, on a day-to-day basis in the courts? At only 90 days out from the bill’s signing, it’s a little hard to say, but here’s a quick review of how the principal changes will affect day-to-day prosecutions in Massachusetts courts.

Bail reform

This is one of the more controversial aspects of the bill Gov. Baker signed. Historically, when a prosecutor requested bail, a judge was required to take into consideration over a dozen separate factors in setting bail, partially including:

  • The Nature and Circumstances of the Offense: How serious is it?
  • Family Ties. Does the defendant have any?
  • Employment.
  • Length Of Residence. This is important, as a defendant who’s been living in Massachusetts for many years is much more likely to not ‘jump bail,’ than is someone who has no residence here..
  • Prior Court Defaults. Has the defendant ‘skipped bail’ previously?

One thing that a judge was never required to consider, though, was a defendant’s ability to pay. Now, the new law requires that judges take into consideration the defendant’s ability to pay a given amount of bail – and furthermore, the judge is now required to justify in writing instances where bail is set high enough to prevent a defendant’s release. That provision in the bail reform provision of the criminal justice reform bill, was triggered principally by an August 2017 ruling by the Supreme Judicial Court that ordered lower judges to consider a defendant’s ability to pay a given amount of bail. That decision angered more conservative members of the Legislature and the public, and I can understand why. Continue reading

It can be one of the most misunderstood aspects of getting arrested – what is bail? How does it work? Must you pay in cash? How does it all happen? As a Dedham criminal defense attorney, let me address some questions about bail. (And I hope you won’t ever need to come up with it.)

A brief history: Bail in the United States came out of the English legal system, in which the court granted the accused person the right to offer his property or monies to the court, so that he could secure temporary freedom while his criminal trial was pending. As the years passed, bail became more expensive, in order to cover the expenses of the court. Eventually the entire process of bail became very complicated.

It’s important to remember that bail is not designed to punish someone for being arrested. It has one purpose: To assure the defendant’s appearance at court, each time, during his prosecution (which can take, in more complex cases, up to a year.) Bail can become relevant in one or both of two environments: 1) Immediately after someone are arrested (i.e., at the Police Station where they have been brought); and/or 2) At arraignment in court. At Police Stations, persons accused of lower-level crimes (such as “simple” assault and battery,) will almost routinely be released either on personal recognizance, or for a small fee of usually $40.00. This can be paid at the Police Department where the arrested person is being held, by either the accused himself, or by a friend or family member.