• Pre-Trial Bail versus Post-Conviction Bail
• How bail impacts your ability to leave the police station
• What is the Goldilocks approach to setting bail?
• What happens if the Michigan Constitution changes and caught between the old constitutional provision and the new provision.

There’s been a lot of chatter about the notion of Bail Reform. Realistically, bail doesn’t need to be reformed, certainly not in the State of Michigan. But my guess is most people championing for this “solution in search of a problem” don’t understand how bail actually works. We’ll discuss that in great deal. But here’s a primer:

So what is bail? What’s its purpose and why is “Bail Reform” getting all the press attention these days? To being, and simply put: The primary purpose of offering bail is BOTH to ensure that the defendant appears in court, while also ensuring the safety of the public.

At the defendant’s first appearance before the court, the judge must order that the defendant be held in custody or released on bail. You are “bailed out of jail” with the posting of a financial security, or, in laymen’s terms: posting bond. There are three types of bail for which a bond is required: cash bail (which just means posting 10 percent of that dollar amount), there’s secured bail, and finally, there’s unsecured bail (a/k/a personal recognizance). Complete denial of any bail is permitted only under certain circumstances, discussed in just a bit.

So how does this usually work, you wonder? If the defendant is going to be released while her trial is pending, the court must determine whether or not she will be released on her own recognizance or whether bail will be required. And, if bail is going to be required, the judge must establish an amount of bail the defendant must provide. Generally, the court will order release on a personal recognizance. Alternatively, the court could make specific findings in order to impose conditions on release and thusly order the release of the defendant on money bail. Or, if the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot be otherwise assured, complete denial of bail may be ordered by the Judge.

PERSONAL RECOGNIZANCE

If the defendant is not ordered to be held in custody, the court can order the release of the defendant on her own personal recognizance, with the understanding that the defendant will appear as required to each court hearing, that she will not leave the state without permission of the court, and she will not commit any crime while released.

CONDITIONAL RELEASE

If the court determines that a release on personal recognizance will not reasonably ensure the appearance of the defendant as required, or will not reasonably ensure the safety of the public, then the court may order a pretrial release of the defendant on the condition or combination of conditions that the court determines are appropriate. What are some of those conditions, you may wonder? Think things like: checking in with a probation agent, not using legal or illegal substances such as alcohol and marijuana, obtaining employment, attending treatment programs for dependency, those sort of requirements.

MONEY BAIL

If the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot be otherwise assured, money bail, with or without conditions, may be required.  When setting money bail, the court must recognize that there is a constitutional mandate excessive bail shall not be required. Money bail is deemed “excessive” if it is in an amount greater than reasonably necessary to adequately assure that the accused will appear when her presence is required. The court in fixing the amount of the bail shall consider and make findings on the record as to each of the following:

(a) The seriousness of the offense charged.

(b) The protection of the public.

(c) The previous criminal record and the dangerousness of the person accused.

(d) The probability or improbability of the person accused appearing at future court proceedings.

We’re finally bringing this topic in for closure. But before we do, we have a few more critical cases which we need to discuss.

As continue to delve deeper into our right to finality from a criminal trial, we start to look at aspects where multiple jurisdictions bring criminal charges, despite the criminal action occurring (arguably) in only one place. We will also discuss the power a trial court judge has in a criminal case and why WHO YOU VOTE FOR MATTERS for trial court judges. Lastly, we’ll wrap up the podcast by discussing whether a County Prosecutor can bring state law criminal charges against a Defendant, only to have the State bring actions against that Defendant, as well!

In this podcast, we will continue our conversation about Double Jeopardy and how you are protected by the Michigan Constitution. Cases we will discuss will involve:

• What happens when a Prosecutor intentionally throws the case in order to get a mistrial?
• When an Eye Doctor pleads guilty to a misdemeanor, if the Judge doesn’t revoke his medical license, is it Double Jeopardy for the State Licensing Board to take it away from him?
• What is Manifest Necessity? How does it apply against Double Jeopardy?
• Do multiple prison sentences by crimes committed in one transaction, violate Double Jeopardy?
• How does Duel Sovereignty and Double Jeopardy mesh? Or, do they conflict?

I bet you’ve never given this area of constitutional protection much thought. We “get it”, perhaps conceptually. But do you really understand what it means to be put TWICE in jeopardy? When does it attach? How does it get reviewed? When are you truly a “Free Person” and needn’t fear another governmental trial?

Double Jeopardy embodies three separate protections:

1. It protects against a second prosecution for the same offense after acquittal;
2. It protects against a second prosecution for the same offense after conviction; and
3. It protects against multiple punishments for the same offense.

But those three protections are not where most of the litigation against Double Jeopardy allegations occurs. There is, arguably, a 4th protection against Double Jeopardy and that’s the prohibition of a retrial of a defendant after a mistrial occurs. But we’ll get into that later. So why? Why is this protection against Double Jeopardy so important, so vital, that we have it both in the US Constitution and the Michigan Constitution? Well, there are several reasons.

First, to reduce the chance of convicting innocent people. The theory here maintains, if this rule didn’t exist, the State of Michigan would be able to re-try a defendant until they presented just the right case to convince a jury of the Defendant’s guilt. Think of it like if you could re-take a math test over and over, until you Aced the exam. You know where you got things wrong, so when you retake the test, you have the benefit of knowing where you wrong answers were so that you could get them right the next time. A criminal trial is the same concept. We don’t want a County Prosecutor to have the ability to try you for a crime, be found innocent, thus giving the Prosecutor a second bite at the apple to try you again and strengthen the case where it may have lacked originally.

The second reason is to avoid harassing the Defendant. Crime trials are expensive to defend, stressful on the Defendant and his/her family and no Prosecutor should be allowed to repeatedly try the Defendant for an alleged crime

Lastly, we as a society want to ensure the certainty and finality of criminal litigation. When we have a guilty or not-guilty verdict, whichever the outcome may be, the Defendant should have the luxury of moving forward with their life, whether it be as a free person (thanks to a Not Guilty verdict) or in a jail/prison, because they were found Guilty. Regardless the jury decision, the Defendant should know their criminal case is done and over with.

In this podcast we’re going to discuss the following matters:

-Judge influence of the jury-Right to jury at common law-Waiver of right to jury trial-Judge vs. Jury decision making