Criminal Process – Churgin
I. INITIAL APPEARANCE AND DETENTION
A. Function.
A person who is arrested must be presented before a judicial officer without substantial delay. The defendant will be informed of the charges and warned of the right to refrain from self-incrimination. Arrangements may also be made for counsel and further proceedings. If the defendant is to remain in custody, a probable cause determination must also be made by a neutral authority if not previously done.
B. Probable Cause Determination.
The Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest. Gerstein v. Pugh. Therefore, an arrest warrant, indictment by grand jury, or preliminary hearing is necessary to keep a defendant in custody. A prosecutor’s decision that the evidence warrants prosecution does not meet the requirements of the Fourth Amendment despite the prosecutor’s official oath. However, a conviction will not be vacated on the ground that the defendant was detained without a determination of probable cause. An adversarial proceeding is not essential for the probable cause determination required by the Fourth Amendment, although it may be required by state law and is required in federal courts.
C. Promptness.
A jurisdiction that provides judicial determinations of probable cause will, as a general matter, comply with the promptness requirement of Gerstein. A determination may not be prompt even if within the 48 hour guideline if it was delayed unreasonably, such as to gather additional evidence to justify the arrest, a delay motivated by ill will against the arrestee, or a delay for delay’s sake. If a determination is made later than 48 hours after arrest, the burden is on the government to justify it by showing the existence of an emergency or other extraordinary circumstance. 48 hours is the presumptive norm. McLaughlin v. Riverside. A remedy for a McLaughlin violation has not yet been determined by the Supreme Court.
D. Texas Interpretation.
Although a court clerk may not issue a valid arrest warrant, a clerk may issue a warrant at the direction of a judicial officer who makes the probable cause determination.
E. Illegal Arrests. : “Snatch” arrests, kidnapping a suspect in one jurisdiction to arrest him in the home jurisdiction (both interstate and international), do not void a subsequent conviction.
F. Extradition. : Executive and judicial authorities do not have the power to review the merits of the case in the requesting jurisdiction, the reviewing authority may only review the documents to ensure they are in order.
II. Bail
A. # of appelate cases limited
1. Lots of dicretion w/ trial judge
2. expensive to appeal – rather have lawyer spend time on act. case
B. Application to states:
1. Eighth Am: excessive bail shall not be req=d
2. Sup Ct has been unc;ear, hints in decns that Am is applied to states, but has never come out and actually said
C. Staff v Boil(1951)
1. leading case but not a major cas
2. bunch were being charged as members of the Communist party, judge accepted gov=t risk of flight w/o ?, did not look at indiv=s char, just gave high bail
3. Supreme Ct sd can not do, 8th Am, sent it back
D. Bail Process
1. Traditionally
a. goal : use $ to ensure that indiv. D will believe he has an indiv. stake to show up in court
b. basic form: $ bail or mechanism for equivalent amt, such as deed to house
c. used bailbonsmen
2. Bailbondsmen
a. Normal role: they do the posting, bailbonsmen uses his own prop to get D out
b. AZ case: BB hired bount hunters who broke down door to house, HO shot at them, they shot & killed HO & wife
c. Problems w/ BB
1. often links b/w sheriff & bondmen: pressure, referrals, don=t foreclose on bond
2. just notion of people making $ off this
3. New Development away from $ bail, use other thing
a. Other things
1. Recognizance (ROR): have criminalized failure to appear, take D=s word that D will show up:
! has become the goal of the system
! but takes some checking: study in lg metro had interviews, calls to check info, ROR w/ addl info showed up much more
2. Signature bond: person says if I don=t show up< I=ll pay $50k, noone checks collateral, D just signs for it
b. Notion is if have alot of ties to community, liklihood of showing up increases, so look at D=s work, friends, member of clergy
c. Judge often said A time served@ to make D feel like not wasted time, but looks worse on record
d. Now have people take info before appearance & prepare data for judge
4. Illinois Scheme (Schlib v Kuebel)
a. Scheme: very corrupt BB system so decide instead
retrial proc. just rt @ trial, get jury charge, affects what gov=t must prove
b. S. Ct. saying other interests at stake which can C=ally trump indiv. interest
8. Criminal cases: interlocutory appeal is normally extremely disfavored bail is an exception b/c w/b moot otherwise, Jessup became moot b/c was convicted when reached Sup Ct
9. Unusual for appellate courts to reverse lower ct decns, some cases that have:
a. bail reduced from 500K to 385k b/c sd 5 offenses related to 1 tranx
b. Bail reduced from $1M to $425k , neither D could afford lower amts just TX ct of App telling lower cts to pay attention
c. Ludwig v State: $2M to $1M (2counts of murder), D still couldn=t make, TX ct of Crim App reduced to $50k
10 Exception for capital cases, TX C says no bail if capital and proof evident, so can deny bail but must be evidthat jury likely to impose death penalty, most cases bail is set at very high amt
Cullen-Davis: millionaire, high bond was insuff. so was hearing to see if proof was evid., bail denied, Ct of Crim App sd rt , but later acquitted of crime
11. What happens to indigent D;s, when almost any bail too high?
a. FL proc for bail: 1st thing that sh happen is that $ bail s/b used – is this C=al?
b. parallel case to Gherstein v Pugh: where 5th ct sd no doubt indigent who can reas. be expected to appear by other means, then required $ bail is excessive
c. So for indigent must consider other means, doesn=t mean must grant, just consider before automatic $ bail
d. So often plead guilty b/c can=t afford bail & would have to sit in jail longer than any punishment would be likely
12. Jessup
a. Another attempt of BRA to Atoughen up@ system – drug offenders often had $ to post high bail & then not show up
b. Issue: How to interpret ambiguous statute
c. Say that judges must keep, in mind that Congress has found drug offenders to be special risk of flight
