I am often accused by prosecutors of making frivolous arguments in support of my clients’ rights. My retort is always the same: prosecutors said the same thing about John Frank and John Flynn—the unsung heroes of Miranda v. Arizona —at one time and of course, you, Mr. Prosecutor, don’t know who they are, but you do know that you have the right to remain silent and anything you say can be used against you in court. As I’m moving on to the next topic, that prosecutor is finishing reciting the Miranda warnings in his head. Pushing the envelope and seeking reasonable extensions of existing law lies at the heart of our belief that motion practice matters in criminal defense.
Over the past year, the failings of America’s criminal justice system have suffered an intense spotlight due to the slayings of Michael Brown, Freddie Gray, Eric Garner and a host of other unarmed people at the hands of law enforcement. Militarization of police, racial inequality and a variety of other shortcomings have become topics from the steps of the US Capitol to dinner tables across the country. On June 11, 2015, the New York Times released a story on money bonds for pre-trial release of the criminally accused.
Frequently, clients are astonished to learn of the bail-bond system. Incarceration before conviction has never been the American ideal, but it has been the American way for decades. Judges, spurred on by prosecutors, lock up innocent men and women for months and sometimes years while the people wait for their day in court. The innocent men and women lose time with family, housing and jobs.
The system was not set up to create such a burden. The United States Supreme Court said, “[l]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Until the 20th century, bail was generally uncommon. When used, the purpose of bail is to protect the public and ensure appearance at trial. Today, judges, at the request of prosecutors, set high bail that results in a presumption that defendants are guilty. The system now exacts punishment from the first moment the accused appears in court. Bail is not supposed to be punishment. Over the years, defense lawyers became complacent and treated arraignment (the hearing when bail is first set) as a mere formality. Rolling in moments before the hearing, briefly talking to the client and “winging it” is a good way for a bad defense attorney to land the client in jail pending trial.
We recognize the importance of each hearing. We know how important your freedom is to you and your family. We know because we’ve been there. At the first threat of criminal charges, you need to hire a lawyer. You need to hire that lawyer before the first bail hearing and before arraignment. You need to hire a lawyer who will push the envelope. If your loved one is sitting in jail and the lawyer won’t try to get a better bail, maybe your loved one needs a better lawyer. We’ll defend you and your loved ones the way we would want to be defended. Every case. Every client.