Many murder defendants look forward to their release dates after they’ve been incarcerated for a decade. One Georgia man who’s served this much time is still waiting for his day in court.
It’s unclear why the man has languished in jail for so long. Gregory Edwards, the Dougherty County district attorney, said some of the delay can be attributed to a 2021 courthouse flood, the COVID-19 pandemic, and a previous judge’s decision to try the defendant and his codefendants separately for the 2013 double-murder charge. These two codefendants were tried—and acquitted—in 2017.
The judge is scheduled to rule on a speedy trial motion. The man’s lawyer said dropping the charges would be an incomplete victory. “You talk about getting hostages out of other countries like North Korea or Iran,” he said. “And the average time is six years. We talk about those countries having failed puppet justice systems with no expectation of due process. And yet we have Americans in this country waiting 10 years for an opportunity to force the state to prove its case. And that to me is outrageous.”
Serious Charges and Jail Release
Although ten years of pretrial detention is uncommon in any case, extended incarceration isn’t uncommon in murder and other serious violent criminal cases. Presumptive bail, which is like sticker-price bail, is usually unavailable in very serious criminal cases. It’s also usually unavailable if the defendant faces multiple criminal charges or the case has another dimension, like an immigration or extradition hold.
In these situations, a Marietta criminal defense lawyer must convince a judge to not only set bail, but also set bail on terms the defendant can meet. Some factors to consider include:
- Amount of money the defendant can pay,
- Defendant’s ability and willingness to leave the jurisdiction,
- Severity of the charges, and
- Defendant’s threat to the community in general and specific people in particular.
Most judges work in reverse order. Alleged mass murders never get bail. Defendants who threaten to silence witnesses or prevent them from testifying never get bail either.
Next, many judges presume that people facing serious charges will flee the jurisdiction if they can. But, in many cases, the opposite is true. Many people don’t take misdemeanors seriously. But people facing felony charges are more likely to stay and fight the charges, so they can clear their names. The aforementioned immigration holds and other complexities affect this factor as well.
Defendants who were just passing through are very likely to keep moving if they get out on bail. Defendants with families, jobs, and roots in the community usually at least think twice before they fly the coop.
If a Marietta criminal defense lawyer convinces a judge that the defendant is a good risk, s/he must set an amount the defendant can afford, under the Eighth Amendment.
Delay and the Burden of Proof
Another provision in the Bill of Rights, the Sixth Amendment, guarantees a speedy trial. Attorneys sometimes invoke this provision in jail cases. But they rarely invoke this provision in bond cases. That’s one reason pretrial release is so important in criminal cases.
As a rule of thumb, delay hurts the party with the burden of proof. According to Ebbinghaus’s Forgetting Curve, most people forget about 90 percent of what they see within seven days. But people don’t forget important events they see, like weddings, graduations, and criminal acts.
Although these memories are permanent, the witness still loses credibility over time and eventually becomes legally incompetent to testify.
Prosecutors normally ask witnesses to review deposition testimony, police incident reports, and other such documents to refresh their recollections before trial. This tactic usually works, but it only goes so far.
Assume Phil forgets a hymn he once sang in church as a small child. If someone shows him the sheet music to Amazing Grace, he might remember the notes. But he might not remember other less important details, such as the name of his childhood church. He almost certainly won’t remember extraneous details, such as what he was wearing the first time he sang Amazing Grace.
Now assume Phil forgot about a crime he witnessed a year earlier. If a prosecutor shows him a police report, he’ll remember the important details. But he might not remember less important details, like the weather conditions at the time. He almost certainly won’t remember extraneous details, like what clothes he wore.
At a minimum, Phil’s inability to recall less important details, and possibly extraneous details as well, affects his credibility with jurors. In some cases, a judge might exclude Phil’s testimony. Police reports are inadmissible. So, his testimony must be more than a police report that he puts into his own words.
Delay sometimes affects physical evidence as well. Police evidence custodians aren’t perfect. Physical evidence gets lost. More commonly, new scientific techniques cast doubt on scientific evidence. Over the last thirty years, advanced DNA analytics have helped lawyers free hundreds of wrongfully convicted defendants.
Plea Bargain Options in Serious Criminal Cases
Weak evidence in a criminal case, because of witness memory issues or another issue, is like a weak hand in a poker game.
The Texas hold’em player with a bad hand after the dealer lays out the flop normally loses the pot. Of course, the turn and river cards could change that, but a change is pretty unlikely. So, if prosecutors hold losing hands during plea negotiations, they might hang in there and hope for a better result at trial. That’s especially true if the matter is a high-profile case. More than likely, however, they’ll fold and cut their losses.
In these situations, harsh punishment in a lesser-included offense and deferred disposition are the most common plea bargain options in serious criminal cases.
If Mario is charged with aggravated assault but the alleged victim’s memory is weak, prosecutors might agree to reduce the charge to simple assault if Mario accepts a longer probation term or additional conditions. Prosecutors calculate that Mario probably won’t successfully complete probation and end up in trouble again. Then, it’s up to Mario to defy the odds and make it through probation.
Incidentally, a Marietta criminal defense lawyer can file a motion for early discharge from probation at almost any time.
Deferred disposition is a special kind of probation. When the defendant pleads guilty, the judge doesn’t enter a finding of guilt. Then, if the defendant successfully completes probation, the judge dismisses the case, a disposition sometimes known as n-fog (no finding of guilt). The arrest record remains. But that’s fairly easy to explain away with something like “I got caught up in an investigation, I hired a lawyer, and the lawyer took care of it.”
Delay usually benefits defendants. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.