Bail And The Right To A Hearing

Bail and The Right To A Hearing

When a person is charged with a crime, that person generally has the right to Bail and the right to a Hearing. Traditionally, bail is some form of property, money or otherwise, deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail. In Colorado, some jurisdictions follow a simple bond schedule when setting bond. Other jurisdictions will be observant of the circumstances surrounding the accused and the facts supporting allegations. One of the more observant jurisdictions is the 21st Judicial District, my first home as an attorney. In the 21st, bond hearings are generally treated with a higher degree of care by the defense, the state, and the bench. The state will generally generate a report indicating the criminal history of the accused, how many times the accused has failed to report to court, and the degree to which the accused is tied to the community. The Court’s job is to balance the need for an accused to participate in the process against the requirement that bail is not in excess of being simply sufficient. Bail should not be arbitrary, oppressive, or a constructive denial of bail altogether. All the rules change, however, when you are charged with a capital offense.

At Miller Law, we attempt to stay as up to date on Colorado and Federal case law as possible. Buried in every published opinion is a mistake to learn from or a weapon to deploy. This year, the Colorado Supreme Court published People v. Blagg. A case derived, serendipitously so, in the 21st judicial district of all places. Admittedly, this is a very narrow decision that does not apply except in very rare circumstances. In Blagg, a Defendant was given the right to a new trial due to juror misconduct (A juror lied during jury selection and published a Facebook post stating that she was “fighting for this beautiful family …” – naturally, a juror is charged with the responsibility of being, both, honest and impartial. This juror, as it turns out, was incapable of that). The question then became, ‘what should bond be while the Defendant is waiting for a new trial?’ The Defendant was charged with a capital crime. In capital punishment cases, your right to bailment is greatly diluted if the prosecution establishes that proof of the crime is so evident or the presumption so great that the accused committed the crime as charged. In fact, those accused of capital crimes are held without bail until they affirmatively request admission to bail.

Here, after the court authorized a new trial, it also reinstated the most recent $500,000 cash or surety bond without opportunity for hearing. Thus, neither the accused, nor the alleged victim, nor the District Attorney (DA) was afforded an opportunity to respond. The DA (Pete Hautzinger) filed an emergency motion to stay the court’s order. The trial court denied that motion, and the DA appealed. The Supreme Court agreed with the DA, ordering that the Defendant be held without bond until a request for admission to bond is made, and opportunity for all related parties to be heard. Essentially, the Supreme Court clarified that when a Defendant is granted a new trial, the case should be completely reset from a procedural perspective. This makes sense in light of many guiding constitutional principles, to include the presumption of innocence. Starting back up, where everyone most recently left off, is almost always inappropriate. Although the Defendant in this case was likely negatively impacted, the future accused will benefit from the constitutional foundation made more firm by this decision.

This case is highlighted to provide a glimmer of insight into how technically demanding the protection of a seemingly straight forward right can be. Admittedly, this case also provided an opportunity for me to give a shout out to a fondly remembered former employer. Give us a call today, for a fair shake.

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