The writ of habeas corpus, and its derivatives, is one of the most important and most fragile rights in our country. Habeas corpus, a right which dates back to the thirteenth century, prevents authorities from rounding up the usual suspects and jailing them on the basis of suspicion alone. Governments have always disliked this right. Abraham Lincoln, the Great Emancipator, unilaterally suspended the right of habeas corpus during the Civil War. As a result, law enforcement officials could detain suspected Confederate sympathizers, even if they were simply acquainted with the wrong people, lock them up, and throw away the key. That suspension was eventually lifted, but over the years, lawmakers and courts have repeatedly whittled away at this right.
Sill, strict time limits still apply in terms of arresting and charging suspects. Frequently, these time deadlines do not mean too much. Generally, officers simultaneously arrest and charge suspects. It might take a few days for these charges to wind their way through the system, but the delay normally is not too bad. However, as most of us know, a missed deadline sometimes means everything. Significantly, these deadlines usually have no effect of their own. Instead, a Marietta criminal defense lawyer must enforce them.
Arraignment
In Georgia, authorities can keep defendants in jail for up to seventy-two hours before they formally charge them with criminal violations. For warrantless arrests, the law only allows forty-eight hours. These times don’t include weekends or legal holidays. The arraignment, which usually only happens if the defendant is incarcerated, is usually a plea hearing or a bail reconsideration hearing.
Simple misdemeanor arraignments, like assaults, are usually plea hearings. Judges often sentence defendants who cannot afford cash bail or a bail bond to a week or so in jail. If the facility is at or near capacity, that week might only be a couple of days. Any time in jail is a bad thing. However, a brief jail sentence could be the best option in some cases.
Cash bail is basically a security deposit. If the defendant complies with certain release conditions, mostly appearing at trial, the county refunds most of the money. If the defendant fails to comply with a condition, the defendant forfeits the bond. A bail bond is essentially an insurance policy. If the defendant doesn’t fulfill all release conditions, the bonding company assumes the financial risk. Most companies charge a 15 percent premium for these policies.
Felony arraignments are usually bail reduction hearings. Technically, these defendants also have the option to plead guilty or no contest and receive sentences. But felony incarceration lasts a whole lot longer than a few days. Additionally, defendants usually don’t serve this time in a local jail.
Initial jail release factors are normally limited to the defendant’s criminal record and the severity of the offense. At a bail reduction hearing, a Marietta criminal defense attorney can use a number of other factors to reduce the bail amount. Some of these factors include the defendant’s:
- Ability to pay bail,
- Credible threats to witnesses,
- General threat to the community,
- Ability to travel, or lack thereof,
- Need to work to support dependents, and
- Contacts with the community.
Frequently, prosecutors and Marietta criminal defense attorneys resolve bail matters out of court. These resolutions often involve some compromise on both sides. For example, prosecutors might agree to reduce the bail amount if the defendant agrees to something like house arrest or electronic monitoring.
Indictment
Section 17-7-50 might be the closest thing Georgia has to a writ of habeas corpus. This section requires judges to grant bail if unindicted defendants have been in jail for more than 90 days. However, as mentioned above, the calendar alone does not trigger this mandatory release provision. Instead, if a Marietta criminal defense attorney makes a motion in court, the judge must grant it. Therefore, an unrepresented person could theoretically sit in jail forever without being formally charged with a crime.
The 90-day rule is not completely ridiculous. Grand jury hearings have lots of moving parts. First, authorities must assemble a grand jury. These individuals decide, based on the prosecutor’s version of events, if there is enough evidence to hold the defendant for trial. Marietta criminal defense attorneys cannot make presentations to grand juries or even be in the same room with them. Furthermore, serious felony cases, like murders, require weeks or months of investigation.
Typically, authorities arrest a “person of interest,” like the spouse of a deceased person, mostly to prevent the person of interest from leaving the jurisdiction. Then, investigators talk to witnesses, examine physical evidence, and order scientific tests to build a case. If this investigation does not make significant progress as the 90-day deadline looms closer, many prosecutors offer favorable plea deals. This final resolution might or might not be better than a bail reduction hearing. Section 17-7-50 requires the judge to set reasonable bail. But the R-word is quite subjective.
Statute of Limitations
Once they finish this section, many of our readers will either breathe a sigh of relief or start looking over their shoulders.
The rule for misdemeanors is rather straightforward. Prosecutors must bring charges within two years. The clock starts ticking when the crime was committed.
Felony statute of limitations rules are more complex. There’s no statute of limitations on murder. This rule occasionally comes up in unresolved civil rights murders which date back to the 1960s or even earlier. A similar rule applies to serious felonies and DNA evidence. If prosecutors uncover such evidence, even decades after a crime was committed, they may file charges.
Typically, Georgia’s felony statute of limitations is four years. The SOL In some cases, such as rape, is longer.
For practical purposes, the statute of limitations is much shorter. As a rule of thumb, most people forget about 90 percent of what they see or hear in about forty-eight hours. So, a crime victim or witness usually remembers the event in general, but does not remember the specifics. These specifics are necessary in criminal court, since the burden of proof is so high.
Prosecutors must keep an eye on the clock as they prepare cases. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
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