How Jail Release Energizes a Criminal Defense

The jailhouse blues are real, and they affect legal defenses and mental health. 20 percent of county jail inmates have a serious mental illness. Incarceration itself substantially or partially causes these mental illnesses. Confinement causes the body to produce catecholamines, the “fight or flight” stress hormone. Neither is an option in jail. Since defendants cannot release these hormones, they build up, causing brain damage.

Torture victims will say anything to stop the torture, even if they know a false statement will cause more problems later. Similarly, incarcerated defendants only care about the here and now. They cannot fully understand the long-term direct and collateral consequences of a criminal conviction. Furthermore, waiting for a jury trial is not a viable option. For these reasons, incarcerated defendants almost always accept the prosecutor’s first offer, no matter how unfavorable it is.

Therefore, it’s almost impossible for a Marietta criminal defense lawyer to successfully resolve jail cases. Attorneys need time to establish procedural and substantive defenses. Incarcerated inmates simply don’t have time to wait. Every day they’re behind bars, their mental health, personal relationships, and professional careers deteriorate. Jail release is a process that includes initial release as well as bond forfeiture matters.

Procedural and Substantive Defenses

Jail release gives a Marietta criminal defense lawyer access to a full range of procedural and substantive defenses. Jail cases handcuff lawyers. Attorneys only have limited access to their clients, as well as limited time, in jail cases.

Scant discovery is available in criminal cases, especially misdemeanors. The police report, the key piece of information in a criminal case, only contains the officers’ side of the story. So, unless a Marietta criminal defense attorney is free to interview the defendant and follow-up on these interviews, it’s almost impossible to formulate defenses.

Procedural defenses usually include illegal searches and seizures or illegal interrogations. Physical evidence, like guns and drugs, is inadmissible unless officers had search warrants, or a narrow search warrant exception applied. Confessions and other verbal evidence are inadmissible unless officers gave defendants their Fifth Amendment rights, including the right to remain silent. Officers must also give defendants a realistic chance to assert those rights.

The burden of proof in a criminal case is beyond all reasonable doubt. If a key witness lacked credibility, for whatever reason, it’s almost impossible for the state to meet this burden of proof.

Initial Jail Release Options

Generally, the sheriff sets a presumptive bail amount within a few hours of arrest. The presumptive amount is based almost solely on the severity of the offense and the defendant’s criminal record. Presumptive settings open the door for three kinds of pretrial release:

• Bail Bond: Most bonding companies charge a 10 percent premium (e.g. $150 for a $1,500 presumptive bond) to write a bail bond, which is like an insurance policy. If the court forfeits the defendant’s bail, the bonding company bears the financial risk.
• Cash Bond: Alternatively, if the defendant pays the entire amount, be it $1,500 or whatever, the sheriff releases the defendant. Then, if the defendant complies with all release conditions, the sheriff refunds most of that money when the case is resolved.
• Pretrial Release: Officials usually offer OR (own recognizance) release if the defendant has no criminal record, faces nonviolent charges, pays a small fee, and agrees to abide by all terms and conditions.

The conditions of bail usually include one-size-fits-all general and specific conditions. A Marietta criminal defense lawyer customizes these conditions, reducing the likelihood of bond forfeiture.

General conditions usually include supporting dependents, which means staying current on alimony and child support payments. If Jim lost his job because he was arrested and missed work, he obviously cannot afford to keep making support payments at the same level. An attorney must go to court and get these payments reduced.

A keep-away order in an assault case is a very common offense-specific bond condition. If the defendant and alleged victim work or go to school in the same area, the defendant technically violates this condition practically every day. Usually, an attorney inserts a conditional exception (e.g. it’s okay to be in the same commercial or public building if the defendant toes the line).

Arraignment/Bond Reduction

Sheriffs normally don’t set presumptive bail amounts in extreme cases, such as murder, or if the defendant faces multiple charges, like drug possession and assault. In other cases, the aforementioned three options are unavailable, perhaps because the defendant is charged with a violent felony and the bail amount is very high.

If the defendant remains in jail, the presumption of innocence basically becomes a presumption of guilt, as outlined above. Since so much is at stake, a judge takes a closer look at the matter during a bond reduction hearing. At this hearing, in addition to the severity of offense and criminal history, the judge examines additional factors, such as the defendant’s:

• Ability to pay,
• Connections to the community,
• Likelihood of flight, and
• Threat to the community.

The Eighth Amendment requires reasonable bail in criminal cases. Therefore, affordable bail should be available in all but the most extreme cases, like first-degree murder (a premeditated killing).

Bond Forfeiture Matters

The jail release process usually concludes with bond forfeiture matters. Most people cannot drive more than a few blocks without violating at least one traffic law, and most defendants cannot make it more than a few weeks without violating at least one bail condition. The infraction could be an FTA (failure to appear) or a non-FTA violation.

If defendants fail to appear at a trial setting, the judge usually forfeits their bail on the spot. When defendants fail to appear at procedural hearings, a Marietta criminal defense lawyer usually convinces court staff to reschedule the hearing and give the defendant a second chance.

Second chances are also available for most non-FTA violations, such as failure to update contact information or missing a compliance deadline.

If the judge issues a bond forfeiture warrant, that warrant remains active until officers serve it. Generally, officers don’t actively serve these warrants. Instead, they remain on the defendant’s permanent record. When defendants violate traffic or other laws, the warrants pop up, and off to jail they go.

Therefore, we usually suggest that defendants in these situations turn themselves in, after an attorney lays the proper foundation for quick release.

Jail release might be the most important event in a criminal case. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.