Getting Bailed Out During the Holidays

Vol. 30 No. 6

By

Eddie Cortés (eddie.cortes@sbcglobal.net), Esq., is a solo attorney in Houston, Texas, focusing primarily in the area of criminal defense and state and federal law. He has tried more than four dozen jury trials, the majority as court-appointed counsel.

It’s 3:00 am on New Year’s Day. You’re fast asleep all snug and warm in your bed. Suddenly, your phone rings. On the other end of the line, sounding like he’s inside of a tin can, is your loving son: the one you used to read to at night; the one under whose pillow you placed a dollar when he lost his first tooth; the one you taught to ride a bike. And what does this fine young man have to say to you after he’s woken you from your peaceful slumber? The last three words a parent ever wants to hear: “I’m in jail.” Although your first instinct is to tell him, “You got yourself into this, now get yourself out . . .” and then hang up the phone, at least your second instinct would be to ask yourself, “Now what?”

What to Say When You Get That Call

Our criminal justice system is one of the strongest connections to our Founding Fathers and the history of this nation, but very few people truly understand how it can affect them or, much less, how to maneuver through it once they have been caught up by the slow-spinning wheels of justice. Far too often people find themselves lamenting the fact that they are up a creek without a paddle instead of focusing on how to get out of that canoe. They want to tell their story to anyone who will listen, as if by some miracle a guard at the jail is going to say, “Oh, well, now that you’ve explained it that way, I see clearly that you did not commit this offense. Of course, you may leave! Here, let me get the door for you.” Which leads me to Rule Number One for those who find themselves behind bars: Keep your mouth shut! Do not discuss the facts of the case over the phone with your incarcerated loved one. Most conversations in a jail facility are recorded. Make sure your loved one understands this: No talk about apologies, regret, or recriminations—nothing that makes him sound guilty.

The next thing you need to worry about is your loved one’s stress level. Obviously, jail is not a nice place to be. But no one really understands the value of a day until they have spent 24 hours behind bars. Irrespective of the constant noise, lights, and of course that indelible smell, you must also consider that this individual has been separated from all forms of communication and identity. Most people nowadays can’t go more than 15 minutes without looking at their cell phone; imagine an entire weekend. This lack of communication leads to stress. What compounds the stress is the expectation of release.

Most jurisdictions take a significant amount of time to process inmates into their detention facility and an equal amount of time to process them out. A common misconception among lay people is the amount of time it takes to get their loved one out of custody. It could take hours or even days depending on the workload the guards have at the jail and whether or not it is a weekend—or worse, a holiday. So every time your loved one calls and gets news about his release, his expectations rise, only to be dashed by another passing hour or by an explanation that he has not had his medical screening yet and so cannot be moved to a different tank. This only serves to compound the stress, and it begins to build on itself. Therefore, one of the most important things you can do when loved ones are arrested is to have them take a deep breath and calm down. Assure them that you will be doing everything in your power to get them out as soon as possible. All they need to do is relax and get as much rest as possible.

Arranging Bond

Now the question is how do you bond your loved one out? The short answer is: Find a bail bondsman and pay the 10 percent fee; the bondsman will get your loved one out of jail. But this is a lawyer’s magazine, so there are never any “short” answers. Article 14.06 of the Texas Code of Criminal Procedure says that a police officer must take a suspect before a magistrate within 48 hours of arrest. The Federal Code says “without necessary delay.” Fed. R. Crim. P. 5 (a)(1)(A). Therefore, from the time of arrest, you can count on your loved one being in front of a judge within 24 to 48 hours. That judge, or magistrate, will inform the suspect of what he is being charged with, what his rights are, and what the bond amount will be. There are a number of factors that go into determining whether or not a suspect gets a bond and, if so, how much that bond will be.

The specific purpose of bond is to assure the defendant’s appearance at court. Stack v. Boyle, 342 U.S. 1 (1951). In essence, the accused is saying, “Judge, if you let me out of jail today, I promise to come back and answer for these charges. As a token of my sincerity, here is X amount of dollars that you can keep if I don’t show up to court.” However, there are many things a judge can look at when deciding how much that “X” should be. A judge may consider “the nature and circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender and the danger to the community.” U.S. v. Salerno, 481 U.S. 739 (1987). The history and characteristics of an offender have a great deal more to do with a bond than what this excerpt may suggest.

Factors Affecting Bond

The history of an offender is going to involve virtually anything and everything he has ever been arrested for above a traffic ticket. It doesn’t matter if he was a juvenile or if it happened in another state. The judge can look at anything that may help in determining if this person is a danger to the community. A prior felony conviction will obviously have a serious impact on that decision. When examining the characteristics of a defendant, the judge will want to know if the accused has a job. If so, how long has he been at that job? Does he own a home or does he rent? Is he married? Does he have any children? What are his family ties? Where did he go to high school? What are his ties to the community? In other words, how much skin does this person have in the game and how much will he lose if he decides to run? The judge will weigh all these factors along with those previously mentioned to determine just how high the bond will be. Many jurisdictions have averages—amounts that are listed on “schedules” for specific crimes. These are guidelines for the judges to follow on certain types of offenses. Obviously, the more serious the crime, the higher the bond.

Some defendants, however, are not entitled to a bond. If the accused is already on probation or parole for another offense, he may not be entitled to a bond. Probation is community supervision in lieu of incarceration; if you follow the conditions of probation, you stay out of jail. Parole is early release from prison for good behavior; if you follow the conditions of parole, you don’t have to go back to prison. In both cases, committing a new offense is considered a “new law violation.” Anyone under these conditions may be given a bond on the new offense but may be held with “no bond” on the old offense. So even if the family goes to pay a bail bondsman on the new case, the person will not be released because of the probation “hold” or parole “blue warrant.” The family would just be wasting money. A lawyer could, however, approach the judge and ask for a bond on the old case for which the accused is on probation or parole. But then there is the dilemma of whether to spend the money on the lawyer or on the bond—a quandary I will address below in more detail.

If the person is already on bond for another case, that, too, could cause the same sort of chain reaction leading to a delay in release. When a judge sets a bond and allows a defendant to be released from jail, he has the authority to lay down certain conditions that must be followed if that person is to remain free while fighting his case. These are known as “conditions of release.” Defendants refer to them as being “on probation” even before they’ve been found guilty. Some common conditions of release include random drug testing, electronic monitoring, house arrest, and random visits from pretrial services officers. 18 U.S.C. §3142 (b)(c)(1)(A) (2006). If the charge is driving while intoxicated, an ignition interlock or in-home alcohol monitoring device should be expected. If it is a family violence or assault case, a magistrate’s order for emergency protection (also known as a protective order) frequently is put in place, which will temporarily restrict the accused’s ability to go within a certain distance of the complaining witness’s home or place of employment. Obviously, if the accused and the complaining witness are married and have children together, this can pose significant and unexpected difficulties.

Should any of these conditions be violated, the judge has the authority to revoke the bond and issue a new warrant for the defendant’s arrest, and in all likelihood will double the original bail amount. Bitter v. U.S., 389 U.S. 15 (1967). This means that the accused will lose the original bond and will have to go back to the bondsman to pay double what he paid in the first place.

Immigration status is another factor that may affect a person’s ability to get a bond. If a suspect is not a U.S. citizen, Immigration and Customs Enforcement (ICE) may very well place a “hold” on him until the case is adjudicated. In other words, even if the person is given a bond in the criminal case and the bond is paid, he still may not be released because of an “ICE hold.” This detainer may be placed on him at any stage prior to release. So just before someone is “ATW” (all the way out of jail), an ICE agent may interview him and decide to detain him. This includes legal permanent residents, persons in the United States with a valid visa, and persons with no status whatsoever.

Contacting a Bail Bondsman or a Lawyer

Assuming none of these issues apply to your beloved son, your very next step should be to call a bail bondsman. They shouldn’t be hard to find. They are as ubiquitous as pawn shops or gas stations. Check the Internet. Ask a trusted friend. As with any other purchase, do not be afraid to shop around. Whether it’s the holiday season or not, most bail bond offices are open 24 hours a day. On average they charge about 10 percent of the total bond amount. In other words, if the bond is set at $5,000, then it’s going to cost you $500 to get Junior out of jail. That $500 is gone. You will never see it again. It is the fee the bondsman charges to put up the whole $5,000. In essence, he is vouching for your boy. The bondsman is saying to the court that he will guarantee the defendant’s presence at trial and if he does not show up, then the court can keep his money. Obviously, the more money that the bondsmen can get from the accused, the better. So depending on the factors listed above, they may require a co-signer or some other form of collateral to insure their investment. They are not just going to put their money at risk based solely on someone’s signature. If the court date comes and goes and the defendant is nowhere to be found, then the bondsman will turn to a second form of insurance: bounty hunters. In many ways they have much more freedom in tracking down fugitives than do law enforcement officials. Suffice to say you do not want to wind up cross-ways with a bounty hunter.

But herein lies a rub: Do you spend your money on a bondsman or a lawyer? Well, as with most things in the legal field, it depends. It depends on the charges and the nature of the offense. It depends on whose court you’re in or in what county. It depends on what resources you have at your disposal. Times are tough, but almost everyone has something of value if they look hard enough: cars, jewelry, land, maybe a 401K. Everyone always says they’ll do “anything” for their kids, but you don’t know the truth of it until it comes time to pay a lawyer or bail. The truth of the matter is a lawyer probably cannot get your son out of jail. His work won’t truly begin until the case goes to court. So my inclination is to say spend your money on a bondsman first. But what if Junior has a bunch of prior convictions? Maybe a felony on his record? What if there’s no chance he’ll be offered probation or deferred adjudication? If the only offer coming from the assistant district attorney is jail time, would he not be better off earning his credit now? What if it’s a drug case and you know he’s only going to get out and use again? These are all questions that have to be answered on a case-by-case basis. If any of these issues apply to your loved one, then perhaps you’re better off saving your money for a good lawyer.

On the other hand, if the bond is exorbitantly high, you may need to go ahead and acquire the services of a good lawyer who could possibly convince the judge to lower the bail. You’re not just paying a lawyer for his experience, his training, and his expertise. You’re also paying for his access. Someone with all these attributes will be much better at packaging all the factors mentioned above in such a way that will allow the judge to lower the bond without fear of reprisals or recriminations. Look, no one wants to be the judge who lowered the bond on someone who then went out, got drunk, and killed a family of four in an automobile accident. For judges who are elected, as they are here in Texas, that’s political suicide.

Personal Recognizance Bond

That is not to say that you cannot get released from jail based solely on your signature. In this case, a bondsman—or a lawyer—will have nothing to do with it. If the magistrate reviews all the factors above and finds that your son has no criminal record and fits all the necessary criteria that show he is neither a flight risk nor a danger to the community, the judge may very well release him on a personal recognizance bond. This is basically a signature bond where the accused signs a piece of paper promising to return to answer the charges against him. This usually happens after an interview with a pretrial services officer. However, if the county you’re in is not large enough to have such an office, the accused may review these factors in front of the magistrate himself and ask for a “PR” bond.

Getting Your Loved One Home

It may actually take a few hours to enter the judge’s order setting the bond or releasing the accused into the county’s computer system. Once the bond is paid, it may take several more hours to enter that information into the system as well. And once the guards can confirm the information in the system, it may take several more hours to get the inmate processed out. If all this is taking place during the holidays, you can add more time to this process given the fact that many jails may be working with skeleton crews. So actually getting Junior out of jail may take quite some time. But once he gets his property back and walks out that door, the best thing you can do for him is get him a good meal and a hot shower to wash that jail smell off of him.

Preparing for Court

So now you’ve got Junior home and his first court setting is in two weeks. How do you find a good lawyer? Wait a couple days. Chances are you will get bombarded with direct mail solicitations. You can be sure all of Junior’s information is going on a database somewhere, and you can be sure that some enterprising company has agreed to do mass mailings for lawyers based on the information on these lists. You may choose not to go that route, in which case you can look to the usual sources: the Yellow Pages (anyone still use those?), the Internet, Martindale-Hubbell, Lawyers.com, etc. However, local bar associations as well as the state bar may have marketplaces where you can look and ask questions.

If language or cultural issues exist, there are particular bar associations that can deal with these types of client characteristics. For example, a majority of the Mexican American Bar Association of Houston’s membership is composed of Spanish-speaking attorneys in virtually every area of the law, including many judges and justices of the higher courts. Maneuvering the maze of the judicial system is difficult enough for a fairly educated English speaker. Imagine how much more difficult it can be if English is your second language. Effective communication between lawyer and client is essential to a proper defense.

However, the most traditional method of finding an attorney is simply to ask a trusted friend or associate. Perhaps you know a divorce lawyer or the lawyer who probated your grandfather’s will. Although they specialize in a different area of the law, these lawyers are bound to know someone who can help with a criminal case. Perhaps a friend at work had an uncle or a cousin who ran into a little problem a couple of years ago. Whatever path you choose, there are two questions you should ask any lawyer you consult with: (1) About how much is it going to cost if the case goes to trial? and (2) When was the last time you tried a case in front of a jury?

The first question is going to help you avoid the type of lawyer who is going to take your case for $250. Maybe he advertises “felonies as low as $500.” Remember the old adage, “You get what you pay for.” Sometimes in these cases, the lawyer continually resets the case, eventually asking for more money or charging per setting. Meanwhile, the case is getting older and older on the judge’s docket. Judges don’t like old cases. Eventually the judge will ask if the lawyer intends to “fish, or cut bait?” Suddenly the client is facing the prospect of going to trial with a lawyer who is demanding an unexpected trial fee—or pleading “guilty” and accepting the state’s plea bargain. Often clients choose the latter because they cannot afford the former. Any decent lawyer with a significant amount of experience should be able to give you a ballpark figure of what you can expect to pay if the case goes to trial. If he can’t, look very closely at the contract and remember: No one can force a defendant to plead guilty. No one.

The second question will weed out those lawyers who may have no intention of taking the case in front of a jury. You may find one who will cite his 30 years of experience, or another who may claim to be board certified. You might even hear one boast that he’s never lost a case. However, if you keep digging you may find that the guy who’s been doing this for 30 years hasn’t tried a case in 20, or maybe the guy who’s board certified hasn’t tried a case since he left the district attorney’s office (he’s put a lot of people in prison, but he hasn’t actually defended that many folks). Or my favorite, the guy who’s never lost a case. If you keep digging, you may find that he’s only tried five cases in his entire career.

The bottom line is don’t be afraid to ask questions. Be informed. Make sure your lawyer is a good match for you. There is a reason they call this a “practice.” There is nothing that says that a brilliant, young, aggressive lawyer can’t achieve the same or better results than a longtime practitioner who’s resting on his laurels. On the other hand, a more seasoned attorney might be able to get done in a phone call or an e-mail what it takes a freshman lawyer six court settings and two trips to the law library to accomplish. Trial is expensive. Every day the lawyer sits in court with you is a day he is not in his office. He is away from his other clients. He cannot deal with other cases. If he is not in his office, he is not making money. Therefore, one could argue, going to trial or accepting a plea bargain is a business decision. But real trial lawyers are not businessmen. They live to do battle against the state. They yearn for the opportunity to be in front of a jury. And most of the time, they don’t come cheap.

Finally, keep in mind that the professional services of a skillful attorney do not fit the normal standards of a consumer society. When most people pay money for something, they are used to receiving a product, something tangible that they can hold in their hands. A lawyer, however, can change someone’s life with a simple conversation. With an e-mail he could shave years off someone’s sentence. With a phone call, he could save someone’s home. With a text message, he could get someone’s kid back. How does one value this? How do you put a price on it? I like to give this example: Assume that you’ve gone to trial on your case, you lost, and the court sentenced you to five years in prison. You’re sitting there doing your time, two years pass, and lo and behold, you get a visitor. I come to see you after two years and say, “Junior, I can get you out of prison today. Right now.” What would you do? What would you say? How much would you pay to get out of prison three years early? How much is three years of your life worth to you? You see, every time a defense attorney conferences with an assistant district attorney, the plea bargain should get better and better. Perhaps the state will start at ten years. Then five. Then two. Maybe they’ll come down to probation. Or maybe they’ll even agree to reduce the charges to a misdemeanor. What is that worth? $50,000? $100,000? $250,000? This is where the lawyer earns his keep. Before the case even gets in front of a jury, this is where the lawyer is earning his fees.

As you can see, even before the case gets to trial, there are a number of things to consider, a number of factors that could affect your loved one’s case. For someone who has never been in or around the system, it can seem daunting. But the right lawyer can make the process go much smoother.

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