The presumption of innocence is one of the most powerful weapons in a criminal defense attorney’s arsenal. Essentially, at the start of every trial, the defendant stands wrongfully accused. So, to obtain a conviction, the prosecutor has a very steep hill to climb. Even if the defendant has no affirmative defense, like alibi, insanity, or self-defense, the presumption of innocence is sufficient to secure an acquittal.
But typically, pretrial detention transforms the presumption of innocence into a presumption of guilt. Most jurors assume that people go to jail because they did something wrong. Most Cobb County judges take steps to conceal the defendant’s incarceration. For example, most judges allow defendants to change out of their jail clothes before they face the jury. However, jurors are not stupid. They can still tell who is in jail and who is free.
There is more. Defendants in jail feel pressure to make deals to “get it over with.” Prosecutors know these individuals want to make deals, so they negotiate from a position of strength. That’s a very bad place to be, if you are a criminal defendant. Additionally, people in jail cannot participate in their own defenses in any meaningful way.
The bottom line is that pretrial release is much more than a personal convenience or preference. Pretrial release could be the difference between a favorable and unfavorable result. Since so much is at stake, a Cobb County criminal defense attorney must know how to get a defendant out of jail, and how to keep the defendant out.
Initial Pretrial Release
Typically, the county sheriff sets presumptive bail amounts for different kinds of criminal offenses. Many people do not want to wait until they see a judge to get out of jail, so this system works fairly well. For example, the presumptive release amounts might be $750 for a misdemeanor and $1,500 for a felony.
Limited pretrial release may be available as well, if the defendant is charged with a nonviolent misdemeanor and has no prior criminal history. But the wheels of justice usually turn slowly in this area. So, it may be several days before the pretrial services agency evaluates the case and makes a decision.
As a result, cash bail is usually the way to go. Most jails only accept cash for bail payments. Once the defendant posts bail, the jailers process the paperwork and release the defendant. After the case is resolved, assuming the defendant complied with all pretrial release conditions, the sheriff normally refunds most of the bail amount.
For many people, fifteen hundred dollars might as well be fifteen million dollars. Roughly 40 percent of the families in Cobb County cannot pay a $400 emergency expense. Fortunately, Georgia has many licensed bail bonds agencies who can work with people in this situation.
These agencies generally charge about a 15 percent premium to write a surety bond. The sheriff accepts this bond instead of cash and releases the defendant.
In a serious felony, the bail amount might be tens of thousands of dollars. That’s especially true if the defendant has a criminal record or there are other aggravating circumstances. So, even a 15 percent premium might be out of reach. In these cases, most bail bonds companies accept surety, such as:
- Real property,
- Automotive titles,
- Firearms, and
- Other pawnable items.
Different companies have different rules in terms of noncash bail bonds. For example, some companies allow parties to retain the property, and others do not.
Additionally, different companies have different bail bonds conditions. Many companies have a long list of conditions, such as regular in-person reports and frequent drug tests, and they are very inflexible. Other companies are a little more willing to work with defendants. An attorney can offer some guidance, so if you are arrested, a lawyer should always be your first call.
Bond Reduction Hearing
If the defendant is unable to post bail or obtain a bail bond, an attorney can schedule a bond reduction hearing. That’s because the Eighth Amendment guarantees reasonable bail in criminal cases. So, there is basically a presumption in favor of pretrial release. Some factors to consider at this hearing include:
- Defendant’s criminal history,
- Severity of the offense,
- Defendant’s connection to the community,
- Amount of evidence the prosecutor has, and
- Any threat to public safety (e.g. has the defendant threatened witnesses or alleged victims).
Bail is never a punishment, because the prosecutor has presented no evidence and the defendant has not entered a plea. Instead, bail protects the public and guarantees the defendant’s appearance at trial. The prosecutor must establish that the defendant’s release would pose a threat to the public and/or the defendant cannot be trusted to appear at trial.
Most court cases, including bond reduction matters, settle before trial. Many times, the defense attorney and prosecutor reach a compromise agreement. For example, the prosecutor might agree to lower the bail amount if the defendant also agrees to something like GPS monitoring.
Pretrial release is always conditional release. If the defendant violates the conditions by not appearing in court, not reporting as agreed, failing a drug test, or whatever, one of two things can happen.
Especially in situations like a failure to report, the bonding company might go off the bond. In these cases, the defendant normally has a few days to find another bail bond company before the judge issues a bench warrant.
Defendants who fail to appear in court usually get no such leeway. In these situations, the judge normally forfeits the bond on the spot. The bench warrant immediately goes into the law enforcement computer system. If the defendant runs a red light, the officer must arrest the defendant. The same thing applies in other situations. For example, if someone rear-ends the defendant, an officer could stumble across the warrant.
The good news is that, if the court issues a bench warrant, officers do not actively try to serve it. So, a defendant can usually work with an attorney and secure a new bail bond. The defendant may need to show up at a jail and be processed. But if the defendant goes at the right time, this process usually only takes an hour or so.
Reach Out to a Dedicated Lawyer
Pretrial release jump-starts a successful criminal defense. 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.