Andy
Today we're talking all about release conditions. What are they? How do they affect your criminal case? Stay tuned. This is attorney Andy Markell and attorney Mark j Victor. We are the partners at the Attorneys for Freedom Law Firm here today with our next installment in Fighting the State. How you doing today, mark? Good.
Marc
I'm excited to get started on this one because as people can probably tell from watching these videos, we just love to talk about this
Andy
Stuff. These are my favorite videos
Marc
And I don't even know how we're going to get started. What we're going to say. I mean, I got a few notes here about some things, but for the most part, this is just us yaking about release conditions.
Andy
It's another day at the office for us, frankly, because as part of our role as criminal defense attorneys, when people come in and meet with us and consult with us, and a lot of times people are coming in and it's the heaviest thing they've ever had to deal with in their life. They're being charged with a crime. Maybe they're looking at a felony, maybe they're looking at prison time. You and I often have the role of educator. We have to tell people, the vast majority of whom by the way, have never had any interaction with the criminal justice system. We have to sit down and kind of break these things down to them and explain to them. We have to kind of be the professor in the law office sometimes and explain to them, here's what you're looking at. Here's what the process looks at, and so that's why we're doing this series. I love this.
Marc
I mean, even though we know exactly how this works, I mean I can't even imagine how many of these hearings that I've done over the years. I think it's comforting for people to just understand so they understand what kind of hearing is this? What is it that's going to be important for the judge to hear? What's going to affect the judge's decision one way or another? If you are released, what kinds of restrictions might you have on you? What is it we're fighting for? How does it normally work? And part of the process is just educating people about how this works. So that's what this video is about today, so I'm excited to get to it.
Andy
Yeah, I think to set the stage for this video and what it's all about, our staff had us break up this video into maybe 10 different parts, and this is maybe part three or something like that, but we want kind break it up even further than that into kind of the microcosm, which is, I remember a long time ago when I was fresh out of law school and talking to you about a criminal case. I liked the way that you framed a criminal case into three different parts. I had never heard it broken down like that either in law school or to any of the other law firms that I had worked for, and it really made it click for me. You want to talk what you mean by a case kind of comes in three different parts,
Marc
And this is just the way I think about it just from representing people for over 30 years now, what you might call step one or phase one is really as I like to say to people where you are going to be, well, we're working on the other two steps or phases, and this is the thing usually people care about the most, especially at the beginning. If you're arrested and you're hauled off to jail, I know we know already what's in your head, get me out of this place. And so that's really the first part, and this is really, it sets up the case because if our client is going to be stuck in a jail cell while this case is pending, they're going to want to get it done a lot faster. It's going to put a lot more pressure on us to get this thing resolved one way or another because every time we continue the case 30 days, they're going to be like, ah, another 30 day wait.
Marc
So if we can get our client out of custody, it takes all of that pressure off the case, and that's important because sometimes it just takes time. I mean, we want to get an expert involved. The expert's got to review the case, their schedule is busy. They may be looking for an extra piece of evidence that we don't have. We're waiting on the state to get that to us, and we can't get an opinion from the expert until the expert gets that piece of information and we want to use the expert's report for something if they're out of custody. I mean, even though people will still want to get the whole mess behind them because oftentimes it will be the most stressful thing that's ever faced in their entire lives, but it's far less pressure if they're out and they're at their home and sleeping in their bed and eating food out of their own refrigerator rather than in a cage.
Andy
Yeah, alleviating that pressure for clients is so important not only for them but for their criminal defense attorneys. When you hire a competent criminal defense attorney, you don't just go with a public defender or some bargain basement lawyer when you get a good defense attorney, the purpose of hiring that person is not to just hire somebody to do as little work as possible, hold your hand, walk you into court to take the very first plea that the state offers. No, the reason for hiring a firm like ours is because you want the case done. You want us to take our time, go through all the evidence, go through everything with a fine tooth comb, file all the motions that need to be filed, fight every issue that needs to be fought, and it's so much easier to do that when we don't have that pressure coming from our client who understandably doesn't want to be in custody at the time.
Marc
Yeah. The other thing that's good about it is, especially if somebody has engaged our law firm and they're really not that familiar with our firm, oftentimes people are referred to our law firm from somebody else, might be another lawyer, another person out in the community. Hey, try these guys out. So maybe they're not a hundred percent sure and this is a real emergency situation. Usually the call is the wife, the girlfriend, the brother, someone like that. Hey, my loved one has been picked up and is now in jail. So it gives us an opportunity to really show what we are about at the beginning of the case, we can get involved quickly, move fast. Again, this is part of the reason why we really want people in the A OR program to fill out that emergency contact form because it makes our job easier instead of scrambling around to get all this information, imagine asking the girlfriend, how long has he lived in the community? I guess I don't know, or what are his ties? These kinds of things. It
Andy
Gives us so much information if they fill out that form ahead of time that we can use that's relevant to step one ways that we can get them out of custody arguments we can make to the judge. So if you're an A OR client and you haven't filled out your information form that gives us your emergency contacts and everything on your portal, go fill that stuff out. It's not just for show. It's not just for fun. It's incredibly legally relevant and it helps us do our job.
Marc
And the other thing I like about it too, it's our first skirmish with the prosecutor and look in Arizona, if you're a prosecutor and you don't know our law firm, you're probably brand new. And so they see a notice of appearance attorneys for freedom. They know what they're dealing with, but especially if it's an out of state case and maybe they're not so familiar with us, it gives us a great opportunity to get in there and really bring
Andy
It, really show 'em on the very first interaction.
Marc
We
Andy
Bring it big. We want
Marc
To serve notice to this prosecutor right at the beginning that we're going to fight this case. This isn't one of these where it's just going to be kind of a lay down or we're going to walk through, we're going to take a quick plea or something like that. You got a team on the other side that's going to fight every aspect of this case. Also, it's great to just for appearances, it's nice when you show up at two o'clock in the morning, you've done this, I've done this. And not only are you in a suit with a jacket and your shoes are shined and ready to go, you've got a grasp of the case. You know who your client is, the best arguments, and if they were paying attention in the pre-charge section, we may have a motion to set release conditions ready to go. I mean, this is a hearing. This
Andy
Makes a statement.
Marc
Almost never does a defense attorney show up, right? There's almost never a public defender there. Usually there's not a private attorney ready to go and all of a sudden here comes this case and there's a lawyer who's completely prepared, showing up, dressed to the T, looking like a lawyer ready for battle, acknowledging all the facts in the case, and that's the kind of thing a prosecutor notices. This is going to be a hard fought case.
Andy
So before we get into the step one real quick, we're not going to get into the details today. We're going to save that for future episodes, but do you want to at least mention what, because we've talked about how it's a three part case, three parts
Marc
To
Andy
A case. Number one is where are you going to be while the case is pending? That's what we're talking about today, but what's part two and
Marc
Three? So that gets resolved, right? You're either in custody and the bond isn't going to be posted or you are out of custody. You got conditions. As long as you follow those, you'll stay out of custody the whole time and we'll loop back and talk about some of those conditions. But then we move into step two or phase two, which is what we call the guilt phase. Then we're going to do a series of videos on the guilt phase. This is the question of are you going to be guilty of something and if so, what? Because it's really common that you may have one charge that's a very serious charge, and then sometimes that'll be reduced down to a lower. Okay? So that's what step two or phase two is about the guilt phase. There's an awful lot that goes into that. That could go for a year or more sometimes depending on the case.
Marc
And then if it's indeed going to come out that you are guilty of something, then you move to step three or phase three, which is now the sentencing phase. Sometimes people overlook this and they don't really think that, okay, now we're on the downward, we've taken a plea and you're just going to go and do a quick sentencing. And they might think that because they've maybe watched a lot of these. And if you go to court, people who aren't familiar with this, just go to your local court on what we call Law and Motion Day where they're doing changes of pleas. They're doing release hearings, they're doing sentencings. The average sentencing's probably five to 10 minutes long. The prosecutor gets up there and says, yes, judge. He's the worst guy ever. Here's why the defense attorney gets up and says, oh, he's a good boy and he's never going to do this again.
Marc
And he feels bad. And then the defendant stands up and says, yes, I've learned my lesson. I have a lot of remorse. I feel terrible. And then the judge pronounces sentencing and everybody's done. That's not how we do phase three, hell no sentencing. We almost always request something called a pre-sentence hearing. Think of it. I tell people like a mini trial on the issue of what that sentence is going to be. Sometimes you get a stipulated sentence and everybody knows what the sentence is going to be. Okay, fine. That's a relatively easy one, unless you think the judge is going to reject the plea, which it doesn't happen very often, but in most cases in that phase three, there's a range. So you took a deal. There's the worst thing the judge can do, the best thing the judge can do and things in between. There's a lot of play there too. And I like to tell people, I make a football analogy here, it's kind of like when the running back gets the ball and he fights for every inch shucking and jiving and pushing and spinning and this and that, and then holding the ball out to try to get every last inch. That's how we look at sentencing.
Andy
Yeah, I remember talking to you saying, that reminds me of a conversation I had with a prosecutor once where it was not a stipulated sentence, but the range of jail was relatively low compared to some other cases we've had. And I said it for a pre-sentence hearing, and the range was anywhere between six months to eight months of jail. And so I set it for a full-blown two and a half hours on the court calendar sentencing hearing, where I was going to bring in numerous character witnesses and experts and everything like that to fight for the six months. The prosecutor contacted me and said, really, you're setting it for a two and a half hour hearing on the court when all we're quibbling about is two months? And I said, you sound like somebody who's never spent an hour in custody before, because I guarantee you that means something to my client. I'm going to fight for every inch. Yes, sorry to inconvenience you prosecutor, but we're setting it for two and a half hours. I'm making my case. Look, if
Marc
The range was the defendant is going to do one day in jail or two days in jail, I would fight just as hard, whether it was a range of one year to 20 years, because that extra day is a big deal. I mean, we'd bring in witnesses, we'd bring in experts, we'd make big arguments. We'll take up the full day in court if we can to make that argument. And the good news here, and we're probably stray a little too far from this video, but just make this point. Sometimes you can get back in chambers and have a little informal discussion with the judge. That's
Andy
A huge subject. Save it. Alright, let's save it when we get to, I love getting back in chambers and
Marc
Having those
Andy
Conversations with the judge, but that is such a giant can of worms. There's
Marc
So much to talk about in
Andy
All this. Table it for now. Let's get back to step one. Okay, fair enough. So today we're talking about release. So we're going to assume that our viewers have maybe seen the previous episodes, particularly the one about pretrial, right? Right. We've talked before at length about what happens before a case is charged and what a good seasoned criminal defense attorney can do to put you in a better position for the case. But specifically today, we'll talk about release. So now let's assume there's a charge. Now, one of a couple of things is going to happen. One thing that they could do is they could send you a summons that has an initial appearance day. Sometimes it's called an arraignment. Sometimes it's called an initial appearance hearing. Sometimes it's called a pretrial conference. But bottom line is a summons is where they actually send you a notice saying you are charged with a crime.
Andy
Here's your court date. We'll see you. Then the other thing that they could do a little bit more dramatic is they could issue an arrest warrant and they can send law enforcement out to find you either at your home or your work or some other place, slap the cuffs on you and take you by force into custody. Now, if they go that route, they're going to have to set an initial appearance pretty soon. It varies per jurisdiction. Here in Arizona, they got to put you in front of a judge within 24 hours. But the point is you're going to get a hearing pretty quick if they go that route.
Marc
If you get that summons that says, Hey, you've been charged and you are to appear in court on such and such a day, that's a really good sign because nine times out of 10, if you walk into court for the hearing for the judge to decide the question of release, the question of whether you're a flight risk is pretty much resolved because that's one of the things the judge is going to think about. Is this guy going to come back for trial? Well, look, judge, you just told him what the charges are and he just walked into court knowing what the charges are. Having an attorney who explained the charges to 'em, there's a pretty good chance flight risk isn't going to be a problem. So although it's not a guarantee, and I have had prosecutors argue for the person who just walked into court to be taken into custody, there
Andy
Are flight risk judge, we want 'em taken into custody right now. I remember you and I had a case one time where a guy drove across the entire continental United States from the east coast to Arizona, and the prosecutor still got up and said, he's a giant flight risk judge. We should take him into custody right now. I
Marc
Couldn't believe that one. That was amazing. So it's not a guarantee, which is why I say nine out of 10, it's probably closer to 99 out of a hundred, really.
Andy
But that point you just brought up though about a flight risk, we should talk about the things that a judge considers in ways when they're making the determination of release.
Marc
So at that hearing, the judge is going to come out on the bench and several things are in the judge's mind, okay? And while this isn't an official factor, I think the overview here is the judge is thinking, if I let this person out of custody, am I going to look bad? Is this person going to commit a new crime? And someone in the press is going to call me and say, why did this judge who might be an elected judge who might need to be reelected at some point? Hey judge, why did you let this horrible person out of custody on such a low bond or no bond? And now they've gone and done some terrible thing?
Andy
I want to interject here real quick. This is not the standard judge should be using. You guys are getting a taste right now of the practical real world considerations that perhaps some judges have, but the standard in the law doesn't say the judges to impose the release conditions most likely to make the judge look good or avoid looking bad.
Marc
But this is an inside baseball kind of show. There you go
Andy
Guys.
Marc
This is inside baseball. So this is what when we know that, right? So we want to make that judge comfortable. Hey judge, we got no problems here. This person's not likely. I mean, the two big things flight risk. What are the chances this person's going to flee the jurisdiction? Well, if they showed up in response to a summons, we got a very strong argument here. It's almost not even worth talking about it. But if they were arrested, you got a big case here. And there are many different things that a judge will look at on this point. And the number one thing is what we call ties to the community. Has the person been living in the community for 20 years? Do they have three kids who are locally going to school? Are they involved in a local church or other events? They have a job here. Do they own property here?
Andy
Were they more of a vagrant passing through town kind of thing or bouncing from place to place? No ties to keep them here Is the
Marc
Person visiting from some distant part of the world. I mean, that makes a big difference because the judge is thinking about let this person out of custody, they're going to be gone, and the chances we get this person back are really slim. And so the flight risk is really, really important information. So this is again, and you'll see if you look at that emergency contact form, there are a lot of questions that are calculated to help us make that argument that this person has strong ties to the
Andy
Community. Sometimes these prosecutors will even get crazy with their flight risk arguments and say things like, yeah, we've done research on this person. We found that he has access to boats and planes and all kinds of other things, and maybe he has his pilot's license or his boating license. Maybe he has family in Mexico or some other country judge. And so the state think that he's more of a flight risk than usual because of that. So we need to be prepared to rebut all such arguments. These
Marc
Are the arguments that come up. It's really common in a federal case where we may suggest surrendering the person's passport, right? Because if the court's holding the passport or a probation department's holding the passport, it's going to be very difficult for this person to travel out of the country. So that sometimes can be sort of the tipping point. There are many other things that the judge will consider if there's a victim in the case, which means it's not a victimless crime, say it's a real crime, what are the views of the victim? And so that can be anywhere on a spectrum from hey, a prosecutor says, judge, we contacted the victim. We haven't heard any response to victim, doesn't take a position to victim, is really scared of this person and wants this person held in custody and very strongly feels that the person should not be released to those kinds of things. Let me
Andy
Put a bookmark on this point because we're going to keep coming back to this over and over and over again. The views of the victim, the state's responsibility to the victim. Most states have some kind of form, whether in their constitution or in the statutory law, some kind of form of essentially a victim's bill of rights. You can think of it as in other words, certain things that the state has to respect and the prosecutors have to fulfill with respect to a victim in the case. And one of those things is a victim in almost all states has the right to be contacted and informed of all proceedings that happen in a case and to be asked about what is their opinion about it and be invited to court to speak to the judge directly or to give a written statement, for example, to the prosecutor to read. So that begins, I wanted to put that bookmark. You're going to be hearing us talk about this again when we're talking about other videos and other steps of this process. But it really does begin right here where at that very first hearing, the victim will be consulted
Marc
And life can get tough at this point because other lawyers do what we do, which is representing victims sometimes. And when we represent a victim, we come to court at that release hearing and pound the table and make the case that no, this person should not be released. So not only does the victim have a right to come there and speak, but victim has a right to hire an attorney on their behalf to come there and speak. So you might be dealing with that as well. And that can be a two-sided sword as well, because if there's an attorney representing the victim, then it's easy to talk to the victim's lawyer, maybe try to negotiate something in advance. And this is again, it comes back to that emergency contact form. If we know how much of a bond somebody can put up, say $50,000 is a bond, we know that definitely can be posted. We could go to the victim's attorney and say, Hey, look, I know the victim wants this, that, and the next thing, and what do you think about a bond at 25? And they say, now how about a 75? And we say, what about 40? Okay, deal. Or at least we know you're getting out. Yeah, I
Andy
Think we mentioned that in our pretrial video. All we're about to say about the initial appearance hearing and the fact that it's kind of scrappy and we're going back and forth about release conditions, we can make that all moot and we can make it much less dramatic, which oftentimes our client prefers. They like to know when they're walking into court that they're walking out. Again, for sure. We can make this all moot by just making a stipulated deal with the prosecutor ahead of time. But back to the factors that the judge considers. So we have the ties to the community. We have the views of the victim. If there is a victim in the case, there's also another factor, which is this person a danger to the community. The
Marc
Danger to the community can be a big one. And obviously the big point here, priors, right? Does the person have a bunch of priors? Are they dangerous? Priors the worst prior you can have in a case, in almost any hearing, this is a failure to appear strangely enough, not a very serious crime.
Andy
It's usually a misdemeanor or something like
Marc
That. But if they got prior failures to appear, man, that prosecutor is going to be hopping up and down and say, judge, here's what happened. In a previous case, there was a hearing that was set and the person didn't appear and they got charged and convicted of essentially knowingly failing to appear. And that's a big strike against you. Now, sometimes there's arguments. You can come in and client will say, well, I didn't have notice. I didn't know, or as there was some emergency, or you can try to mitigate that, but that's the kind of thing you need to know in advance, which is again, worst thing that can happen to us is to show up in court and learn about it for the first time. Yeah.
Andy
You do not want your attorney, I mean the state's going to have your criminal record. The judge is going to have it in front of them. You don't want the only person in the room to not know that be your attorney. And
Marc
So this sort of blends into something that bugs me about these hearings more than any other aspect of this kind of a hearing, which is really, it's part of the danger to the community analysis, but it's the nature and circumstances of the offense and the wait for the judge to give this to me. There's really no way to square this with a presumption of innocence. That's right. It's always bothered me since day one when I started practicing law. On one hand, we have this very strong presumption of innocence. You are presumed to be innocent. On the other hand, the judge reads a little short summary of the cases. These are really bad facts. This is a very serious crime, sir. And I think there are a danger to the community, and I want to stand up and say, well, hold on a second, judge. The facts you just read are allegations. They're not proven, and my client is presumed to be innocent. Why are you even putting weight on these kinds of facts? And I frankly never had a satisfactory answer on this.
Andy
That's right. And prosecutors will stand up and do this all the time. Judge, the reason why you should hold him on a $1 million bond is because the allegations are very serious here, judge.
Marc
Yeah, right. It's a murder charge, especially if we're bringing self-defense. That's sort of an interesting thing too, because now we're debating the case and we're not supposed to be doing that. He's presumed innocent of this charge. The judge really should be making a decision that doesn't include the current charges because that requires the judge to make decisions. Now they're going to say, okay, the presumption of innocence is at trial, and we can use the same, essentially presume that you're guilty for purposes of the release hearings. It's really not compatible with a presumption of innocence. I also say, especially for people who are listening to this video or watching this video right now, because they're thinking, man, I don't want to be held just because I'm charged. That's terrible. It feels wrong. But on the other side of the equation, there's so much noise right now. People upset with judges letting people out on bond who are then going to commit other crimes. We can't really have it both ways, right? Either you're presumed innocent and you should be. Either
Andy
We're serious about this whole presumption of innocence thing in this country or we're not.
Marc
Yeah. The way to fix this, in my view, just as a little segue, you got to punish the people when they're actually convicted of real crimes. Real crimes include things like shoplifting, breaking windows, theft of places like Sam's Club and Costco and Walmart, these kinds of places, those people need to be prosecuted, and if they're convicted, they need to be punished. That's where you deal with people like this, not next time they're arrested and say no bond for people who are charged with crimes. Is that really a position we want to be taking as Americans? What we're really saying here, when you argue the judge shouldn't release somebody, they should not release them on bond. What you're saying is I want to delete the presumption of innocence from American jurisprudence.
Andy
Right? There are a lot of other arguable factors too that we hear from the state when it comes to danger to the community. You mentioned priors. If somebody's charged with a crime of violence and they have numerous violent priors, they will definitely make that, and the judge will definitely consider that also, whether they have gang affiliations is often brought up, whether if it's a victim crime, whether the same victim or similar circumstances were involved. So these things are all used by the judge to say, oh, yeah, or by the prosecutor rather to argue, this guy's a danger to the community judge. So independent argument from the flight risk issue, if you release him out, there's just a higher chance that he's going to go out and hurt somebody. And how the judge, as you mentioned earlier, how the judge may interpret that is by saying, oh, okay, there's a higher chance I'm going to look bad if I release this person down to the community.
Marc
Other things we look for, if we've got evidence that the person is not under the influence of drugs, if a judge thinks this person's addicted to meth, the judge is going to think the chances of this person getting released and committing future crimes really high. So if you've got something, maybe you were working on the case in the pre-charge phase and you've got a succession of negative drug tests, this could be something really good
Andy
Or an inpatient check-in at a hospital or something like that. Something showing that they have taken proactive steps to stay clean. And
Marc
Then something else that I think can really sway a judge. If you've got somebody in, they're out in the community and they're working a job, they're employed, and you get a letter from the supervisor who says, look, if this guy stops coming to work, we got to fire him. We cannot hold his job. That can be strong information too. So sometimes I'll tell people, if we've got time, make sure you're working. Can you get two jobs, work two jobs? Can you get yourself enrolled in school? Right? Because we want to make the argument not just at the release hearing, but also at a sentencing. If the judge is making decisions that this person is now acting as a good citizen and why upset the Apple card and keep this person in custody cause them to lose their job, wife may not be able to support everything. Kids could lose the house. They're on welfare. You can see this sort of chain of an argument here. You can make, so essentially you got to be creative and you really want to make it hard for that judge to say, I want this person to stay in
Andy
Custody. That's right. And every jurisdiction has a different legal standard that the judge is supposed to follow. I really like the way that Arizona's is worded. The judge is required, and we've said this directly to the judge before, judge, you are required today to give the least onerous release conditions that this court can possibly give in order to secure my client's presence at future court dates. It's so succinct.
Marc
The language is to be reasonably assured of their appearance at trial. Look, there's no guarantee anybody can. I also say too, I've had very few clients who have actually absconded, and again, this is in the thousands and thousands of cases, most of them major felonies in my career, very few who have actually absconded and of those,
Andy
Hey, stop speaking lawyer. What do you mean by absconded?
Marc
They've taken off. They've fled the jurisdiction. They've said, you know what? Thanks, I'm
Andy
Not showing up thanks, but no thanks. I'm done being prosecuted. See you later. Yeah,
Marc
It happens sometimes I can only think of one who didn't get brought back, and they will bring you back from a foreign country if you think you're going to take off and go to Mexico. Of course, depending on the charge, if it's a misdemeanor, they're probably just going to put a warrant out for you. They may not even extradite you if they pick you up in another state, but if it's a serious charge, I have had people brought back from foreign countries on serious cases. It's just generally not a good idea to flee the jurisdiction if you get in and you're going to get a new charge and you're going to get no benefits of any doubts going forward on anything.
Andy
So that's what an initial appearance looks like. The judge weighs these different factors. Here's oral arguments from both sides. We have a chance to present evidence to the judge in order to bolster the reasons for the more lenient release perhaps that we're looking for. And then at that point, the judge makes a decision, and as we mentioned, if you receive a summons, this is likely to take place in a courtroom at the court, but if you don't receive a summons and they choose to go the arrest route, then likely this hearing is going to take place in a jail. I think we should say a few words about these release hearings in jails, which actually you and I are quite big fans of.
Marc
Yeah, they're kind of fun these night court type hearings.
Andy
Yeah, which had mentioned they run in most jurisdictions, they run around the clock
Marc
In the big cities for sure. They run 'em around the clock. Usually they'll set 'em every maybe three or four hours,
Andy
8:00 PM 11:00 PM 2:00 AM
Marc
And it's night court, just like you see on tv, you usually get a fairly new judge who may be a pro tem, somebody that's not there full-time gig because again, who wants to be the judge on at two o'clock in the morning and then you'll get a prosecutor who might be sleeping in an office somewhere and the place is quiet. I have
Andy
Literally walked in on prosecutors sleeping at
Marc
2:00 AM in the office. Me. Yeah, me too. And it's kind of a fun little hearing, and they parade these people up. Most of them are still in street clothes. A lot of them are falling asleep. It's sort of a strange situation. You might be meeting with your client in the corner of some jail cell somewhere quietly whispering. Again, this is what we want to avoid doing an interview right here, right five minutes before the hearing. This is why the emergency contact form. But yeah, they're interesting hearings. Almost never is there going to be another defense attorney there. Usually they will put your case to the front sometimes. In fact, I'd say oftentimes you can get that judge and that prosecutor together and have a little meeting back in chambers. You might be able to broker an agreement right there, which could make a lot of sense. Take the pressure off. I tell my client all the time, I'm going to go in and speak with the judge and the prosecutor. If I come out of that thing with a smile on my face, you just keep your mouth shut. That means you're getting out.
Andy
Yeah, these hearings are fun. I call 'em late night freedom fights. And it is really fun to show up in that type of a setting where frankly nobody really expects that you're going to show up and to really advocate for your client and send a message to the state from the very, very first encounter that you have with them on the case. We're not screwing around. We're here to fight.
Marc
So if you do get released, of course, if you're not released, then okay, you're stuck in the jail and that's that we can talk about too. Getting a review of that order, that doesn't mean you're going to be there necessarily for the rest of the case. I
Andy
Definitely want to talk about modification of release conditions. You want to go
Marc
There now?
Andy
Well, I think it'd be good before we hop there to talk about what are release conditions. Let's give some examples of what release conditions could be because the judge has a ton of different options, right? Yeah.
Marc
The judge's attitude here is, look, I could keep you in custody if I wanted to. I'm letting you out. There's a lot of strings attached. I'm going to put any strings I want on there. If you don't want to comply with these strings, you got a place to sleep right here. I remember judges saying, Mr. Victor, if your client doesn't want to come to court, I'll give him a free ride. I'm like, no, no, judge. It's okay. We're good. If he's having trouble finding somewhere to live, I got somewhere for him to live. Counsel
Andy
The jail cell, right,
Marc
Right here. So that's the judge's attitude. So you better follow these release conditions. They always are going to have the same first release condition. Don't commit any new crimes. If you commit any new crimes when you are released, that's almost always what we call a term one violation. This is a real pain in the neck because now it makes it hard to fight this, right? Yeah.
Andy
We use the same terminology, by the way, for probation violations. If a new crime is committed,
Marc
And this can be hard, right? Because it can be difficult. Now you're in a position where you want to make statements to say, no, this didn't happen, or Here's our excuse or reason or defense, but you're not yet charged and you might get charged, and so you don't want to make any statements that can definitely be used against you. So if you get charged with a new crime while you are on release, you are definitely going to have problems with that release being revoked.
Andy
Alright, I'm going to start kind of burning through some of this long list of release condition possibilities that a judge after hearing the arguments from both sides may institute. So the most lenient one that the judge can do is something called or release. It means you're released on your own recognizance. That just means you're promising to appear at all future court dates, and as long as you do that, there's not going to be any other release conditions. Generally that's the best. If we can get or released, that's what we
Marc
Want. That's the gold standard. That's what we want right there. You're just let out, here's your new date, we'll see you. Then
Andy
There's a little step up from that in terms of supervision, maybe the judge, maybe it's the type of crime where the judge doesn't totally trust or maybe wants a few different conditions, additional conditions imposed, but he doesn't want to hold you in custody, so they might release you to something that's often called pretrial services. Pretrial services is basically, there's a department within usually probation departments, and their job is to make sure that people who are currently charged with crime show up to court check in every now and then. They have the right sometimes depending on the charges to put some additional things into play. We
Marc
Should probably back up just a tad too. Just because you're released to or doesn't mean there are no other conditions. There are going to be some standard conditions like we talked about, don't commit any new crimes, and they want that there because then you're not just punished with a new crime. Now, you've also violated your release conditions. Other things that are almost standard, don't leave the jurisdiction
Andy
Without permission.
Marc
Without permission. And the jurisdiction could be don't leave the city, don't leave the county, don't leave the state. You could get, don't leave the country. I have had people with permission to leave the country even on federal cases,
Andy
And how you get permission is through your lawyer. Your lawyer has to file something generally with the court and have the judge make the determination. You're allowed to leave
Marc
Motion to modify release conditions really common, which
Andy
To allow travel, things
Marc
Like that. Yes, and just on those, it's very common to first try to talk the prosecutor into it and sometimes you can. If the person's been released for a little while and there's no problems and you got a good reason, prosecutors say, I don't oppose that. It's almost guaranteed to happen at that point, but you're going to get conditions like, don't use any drugs. Don't use any illegal drugs. I think it's important to note that marijuana is still illegal federally, so people can get confused on this. If you're on a federal crime and you get a release, one of those terms from the federal judge or federal magistrate judge is going to be, don't use drugs including marijuana. Even if you got a medical marijuana card or marijuana is legal in your state, that's a state issue and it definitely will violate your federal release conditions.
Marc
If you smoke marijuana, almost always you'll get report to an officer or something like that kind of to check in so they know who you are. We talked about don't leave the jurisdiction, don't change your residence without prior approval. If this is where you live, we want to know where you live, so you got to continue to live at this residence. Sometimes there'll be a search of the residence where you have to agree to let a probation officer check if you put your residence down as some crack house down the street. The probation officer, if there's one or pretrial services officer we would call at this point, because you're not on probation, you're on pretrial release. They go out and check out the place and they're like, nah, this isn't an approved residence. You are out. Sometimes they'll say, you are to keep your job, you're supposed to stay employed. That's really common. Sometimes they will say, don't associate either with a co-defendant on the case or with anybody who's got a criminal conviction. So if you've got a buddy and he's got a felony on his record, you can't talk to that person. That's a condition of your release.
Andy
I want to return to that point that you just made about co-defendant contact, but we'll get
Marc
There. Oftentimes, if you get arrested for something, sometimes it's even broader police contact, you get pulled over for speeding and a police officer's giving you a warning, technically you got to report
Andy
That. Yeah, they may say within 72 hours of any police contact, you better let us know.
Marc
And then really comment, no guns. Yeah. Now, this is one of those things that's being challenged, right? Because under the Bruin standard, it's not so clear that this kind of a restriction was part of our nation's history and traditions.
Andy
When you're accused of a crime and presumed innocent, you're not allowed to defend yourself. Doesn't seem consistent with
Marc
Relations, but they're pretty standard conditions of release both for state and federal, especially on a felony case, which is you saw where you can't have guns, not just guns, any kind of a weapon. That's for defense. No nunchucks, no tasers, none of that stuff. And so if you could say, look, I'm not willing to abide by that. The judge could say, okay, well, you stay in custody. So those are some common things. And you were talking about pretrial
Andy
Services. Yeah, I want to return to pretrial services. So pretrial services is put in place, and oftentimes when they want to add a little bit more in terms of your supervision, and oftentimes what's required for pretrial services, remember this is somebody from the probation office, usually they want you to check in. They'll say, we want you to check in once a week, twice a week, once a month. Oftentimes they'll tailor it to your current situation and felony level and things like that. But then they'll also impose some other things depending on the crime. Sometimes, for example, a very standard one is if you're charged with driving under the influence, aggravated driving under the influence or something like that, they may impose alcohol testing. Let's say you're charged with a drug offense. Hey,
Marc
With a no alcohol provision.
Andy
Yeah, right? And we're going to alcohol test you at random. You're charged with a drug offense, same thing. They may say, Hey, you got to call in every morning. You got to call in, and if it's your time to go drop a ua, you got to go down and drop a ua. And if it comes back dirty, you're in violation. We can take you back into custody or
Marc
You fail to show for the test. I mean, that's your requirement. You're agreeing to, they make you sign that. We should mention too, there are written conditions here when you get released, especially if you're in custody, normally what'll happen is the court clerk will come out and say, here you go. Here are your written release conditions. Lots of times the judge will read these into the record, at least some of the special ones, if the judge can tailor these any way the judge wants and then you'll sign them. So you have in writing a copy of these are your conditions, so there's no confusion that you knew what they were.
Andy
I want to bust through a couple more. The judge may require you to wear an ankle monitor. Maybe there's an argument that you might be a flight risk in the jurisdiction, or maybe say in the case of a victim crime, they want to assure that you're not going near the alleged victim's residence, but the judge isn't quite there where they want to keep you in custody or maybe you've posted a bond and they say, if you're released, you got to get an ankle monitor. They could very well do that. And along those same lines, less extreme, but same kind of principles here. They may impose a curfew. They may say, all right, you're allowed to leave the house, go to work, and everything like that, but you have to use a special app, a GPS tracker on your phone or something like that. It used to be a landline that you would have to get installed in your house. We've kind of moved the technology in. Most jurisdictions have moved past that, but they check up on you to make sure you're back in your house at 6:00 PM or something like that, and you could be found in violation if you break
Marc
That. Yeah, I like to tell people that if you are released to pretrial services, think of it as being on probation before any conviction. Normally you can't be on probation unless you're convicted of a crime. But pretrial services, it looks and smells and quacks a lot like probation. So that's essentially what you're
Andy
On. And then I want to talk about two different types of no contact that could be ordered by the court in a victim crime. They're almost always going to say no contact with the victim, say it's a domestic violence offense, or maybe even a shooting where the person survived, don't have contact with the victim. There's concerns about witness tampering and intimidation, and you better not show up to court. Who knows what they're concerned about. But they'll oftentimes impose those types of things. But then there's another type of no contact provision. And it's interesting because a lot of times in cases with multiple co-defendants, they'll say No talking to the co-defendants about the case outside of court. Oftentimes this can serve as a hindrance to what we're trying to accomplish in a case. Let's say that for example, we want to work with another defendant and their attorney on kind of a joint defense. Well, these things can be modified by joint defense agreements and motions to modify, which we're about to talk about. But oftentimes they'll start with a blanket prohibition about contacting each other about the
Marc
Case and also not to return to the scene and can be a one as well. And sometimes we may want to go out there to the scene with our client to say, okay, show us exactly what happened where. And like you said, Andy, these are actually pretty easy to modify. We file these all the time out of our,
Andy
Let's talk about a motion to what is a motion to modify release
Marc
Conditions. So a motion to modify is when you file a motion, what you're asking is for the court to do something. Hey judge, I'm asking you to do something. And so a motion to modify pretrial release or release conditions is saying, judge, something about the release conditions we're asking you to change. There could be all kinds of good reasons. My client's hours of work changed and we need to change the home arrest provision or the curfew provision, Hey, he's done a good job out now and he doesn't need this ankle monitor anymore. We want to sort of step down on that. People don't like it as there's a charge you got to pay. They can be kind of itchy and scratchy. Sometimes they go off when they shouldn't go off, they don't work.
Andy
Maybe this is a cyber crime or something like that, a white collar crime of some sort where the court imposes no internet, you can't use the internet while you're on pretrial services. Somebody might be able to make a convincing argument. Look, judge, like if my client works online, he works from home. If he doesn't have the internet, he's going to lose his job. And so you should modify for every, or
Marc
Something can happen, right? There might be a death in the family and now client wants to go attend the funeral in a different state. That's often granted. Things like that. The more trust you can build up with the court,
Andy
Even sometimes in maybe less serious cases, your client just wants to go on vacation. Judge, my client has a Thanksgiving gathering in a different state with the family, and we are asking the court's permission. He just wanted to be as transparent as possible. Wouldn't even think about going without the court's permission. That can build some trust with the court.
Marc
And these get granted far more routinely if you can get the prosecutor on board. So we never file one of these without talking to the prosecutor first. Sometimes my argument to the prosecutor is, you might build up a little good faith with my client. There might be some level of trust at some point for some reason, and prosecutor might want to seem reasonable. That happens sometimes and say, okay, I don't think your guy's fleeing. Or sometimes they'll say, I'll give your guy an opportunity to screw the pooch, and that'll happen. And so yeah, it's pretty common to try to get these changed. Another reason you might want to move to modify release conditions is the first judge at that initial appearance just was out to lunch. And again, you usually don't get the most experienced judges doing these types of hearings. And sometimes they're far too sort of conservative.
Marc
They set the bond way too high and we look at it and say, oh, that's too high for a case like this. And they say, sorry, counsel, that's my decision. And that's the end of that. Alright, well, when the case moves to the next level, usually you can bring a motion to modify that and you get a new judge at a new level to sort of review the conditions that were set. And it's pretty common to get the more experienced judge to say, yeah, I think that was maybe a little too harsh. I'm going to lower the bond amount. Or something along those
Andy
Lines. And there are different legal standards that dictate this, right? Technically in a lot of jurisdictions, Arizona included, you have to show that there was a substantial change in circumstances from when that initial release conditions were set. But frankly, that substantial change could be judged. Maybe that initial appearance judge just didn't have all the information and just didn't have everything that they needed to consider in order to make an informed opinion about the release conditions here. So there are different standards here, but the last thing that I think, so we've been kind listing off things that a judge can set as your release conditions. The last one I want to talk about is the big one, which is after all that, if after all the oral argument, the judge weighs everything and decides despite hearing all that, there is no combination of release conditions that I can give that would secure the appearance of this defendant. I'm going to set a bond. I want to set some sort of a bond and we should talk about bond. We should talk about the different types of bond and we should talk about bondsmen. So what happens when the judge sets a bond? Yeah.
Marc
What the judge is essentially saying is, look, put some money up. And there are different kinds of bonds. You can have a cash only bond, which I think we shouldn't have. It just makes it harder to post the bond, which is, hey, if you can post this amount of cash and post it sometimes with the court, sometimes with the jail, that if you flee, we're taking the money. Yeah, you've
Andy
Probably heard us talk about this before, this issue of cash only bonds. If you haven't then review some of our other videos. But we're very opinionated about this. There's an argument that they should be unconstitutional, that they're inconsistent with a presumption of innocence. But I digress,
Marc
Punishes people who don't have the money to put it up. Yeah, it takes the possibility of a bondsman usually out of the equation. Sometimes they'll still put up a cash only bond. They may want 20, 25%. Yeah, sorry,
Andy
You're on debtor's confinement. Basically we're holding you in custody through no fault of your own other than you just don't have the resources
Marc
To put. Yeah. Then there's the secured bond, which is usually the bondsman is going to put up essentially a piece of paper that says, Hey, if the defendant flees i'll, I'm good for it. I'll pay for it. And the bondsman is going to want usually about 10% of the total amount of the bond as a fee and a lien on something. So that bondsman iss not dumb. That bondsman says, Hey, if I got to put up the money for this, I want collateral. I'm not going to be out the money. I'm going after you. I'm selling your house. I'm selling your car, your jewelry, whatever. I'm in business. I'm trying to make money. I'm not trying to lose money because your dumb ass fled the jurisdiction. So those are the different kinds of bonds, how high they are. And of course, in some cases there's no bond at all. And this is really common in the federal court. Sorry. You're detained. You're detained. There is no bond, no amount you can put up. We're not letting you out of custody. I think this is pretty outrageous if to say you are detained. There's no amount of anything that will allow us to let you out, and yet you're still presumed innocent. Don't think for a second. Anybody here thinks you're guilty.
Andy
I'm glad you brought up the federal system because it's really important to have a seasoned defense attorney who does both state and federal, because the rules vary so much between the two. For example, under certain states, there's ways they can actually hold you non bondable. For example, if you're on probation at the time, there's an option if it's an inherently dangerous felony in some
Marc
Jurisdiction, you committed a felony while you were on release for another felony.
Andy
Yeah, I mean there are certain ways we consider these so serious and the presumption it needs to be great and there's ways to challenge that and everything like that. But yeah, it's really important to know the nuances of this and
Marc
The real serious crimes. Lots of times judge will just hold you non bondable. Sorry, you're entitled to a hearing on all this stuff, but it doesn't mean you're going to win the hearing and the way it shakes out. If the crime alleged is really, really bad, you're going to be held either on some crazy, hugely high bond or no bond at all. That can be very difficult and no, in my opinion, there's no way to square that with the presumption of innocence.
Andy
So now the judge has set your release conditions. It's something from the menu of all the different variations that we just laid out, and the case is now proceeding along and it goes to the next video we're going to make, which is just the regular flow of the case, the procedure. But the last thing I want to talk about in this video briefly is what happens if you violate your release conditions?
Marc
That's always a bad scene, right? It's horrible to get that call from the prosecutor, Hey, we're picking your guy up, or We've picked your guy up because your guy's alleged to have violent Look, this is an important enough change in status, right? You're out and now they're trying to bring you back in saying you violated. You are definitely entitled to a hearing on this, but it's not proof beyond a reasonable doubt. It's a much
Andy
Lower
Marc
Standard. So lots of times the person will be just arrested, taken into custody, and then we'll set a hearing and the evidence will be brought about why the person violated. The judge could still find the person violated, but I'm going to put you back out on release again.
Andy
Maybe with a few extra conditions, maybe with more intensive surveillance, a few extra
Marc
Things, yeah, really common. So the judge can add a few things or the judge can say, sorry, you blew it.
Andy
You blew it. I gave you your chance. You're going back in. Yeah. So
Marc
You got to be very, very careful, which is why when you get those conditions over release, you really should read them carefully. Hold on to them. If there's something you think is just unpalatable there, you got to get your defense attorney to litigate
Andy
That. Sit down with your defense attorney and make sure you understand each and every aspect because a lot of people don't speak legalese and sometimes these courts don't put it in normal plain talk of what this means, what this condition means, what this condition means, does it include that? So I always have a sit down with my clients right at the beginning of the case saying, alright, let's go through your release conditions and make sure you don't violate it. Find
Marc
A little inside baseball tip here. It's not that uncommon either for us to go to the prosecutor and say, Hey, we're going to file a motion to modify release conditions and have the prosecutor say, look, I'm going to offer you a deal. I don't want you to file that motion to modify release conditions. If the guy serves another name it 10 days, 20 days, 30 days, I'll just give you a time served. Something like that. But if you file, you make me argue this, then I'm not going to give you that deal. So there can be some negotiations in the back room there where we go back to the client and say, look, we could file this, but here's what it's going to cause the prosecutor to do, and we could this thing wrapped up if you just stay in another two weeks and be done, look, making the sausage back in the back room there is a big part of what we criminal defense lawyers
Andy
Do. Yeah. Most important things in a case don't occur in the courtroom. They occur between the parties and chambers, things like That's right. But I have one more little piece of insider baseball that I want to share, which I think is really, really important for defendants to understand. Whenever I'm arguing to get my client out of custody or keep them out of custody on release, I always tell them, look, there are selfish reasons why I want you out of custody. As your defense attorney, yes, I want you to be comfortable and sleep in your own bed and have a hot meal and take a shower in your own home. I'm sure you'd prefer that, but in terms of your legal defense, there are advantages to this. For example, if we end up sometime down the line at a sentencing, and my client has perfectly behaved himself, we had maybe a big fight in the beginning where the prosecutor's like, judge, you got to worry about this guy.
Andy
You got to take him into custody, you got to worry about him. He's a flight risk. He's a danger. And then I managed to keep him out and he does a great job on pretrial services. At the sentencing, we might be arguing whether this person needs to go to prison or whether they're going to be able to be compliant with probation. And what takes the wind out, the prosecutor's argument faster than anything that they need to go to prison. They're not going to be a good candidate for probation. Judge, he's been out this entire time with perfect compliance on pretrial services. There ain't no argument he wouldn't be successful on probation. No,
Marc
It's a great point. I'll just add to that. Sometimes the reverse is true where we say, you know what? There's going to be this argument at sentencing and we look, if you stay in another 30 days, we've got a good argument, a better argument. Judge, he's served enough time, he doesn't need to go to prison. And so we are always thinking, and this is again,
Andy
And that's not what I thought you were going to say when you said the reverse is true. What I thought you were going to say is if you make that argument and you get your client out over the objection of the state and then your client blows it. Yes,
Marc
That's a good point too.
Andy
By violating that can blow up in your face with sentencing. There you go. Judge says the prosecutor, there you go. We gave him a chance, you gave him a chance, we told you not to, and he screwed it up. Sometimes we got to send into prison.
Marc
Sometimes we have that conversation with the defendant. Look, dude, if we get you released and you screw it up, you're going to put yourself in a worse position. And sometimes they say, look, I don't really have a place to live. I am addicted to meth. I don't have a job. I'm probably going to get in trouble. You might actually be better sitting
Andy
Right there. Want to stay and start racking up your time right there
Marc
Now. Yeah. So again, every case is different. This is why you need a customized defense on your case because every person is different. The facts are different. People say, mark, how do you do on these kinds of cases? I say, there aren't these kinds of cases. Every case is unique, there's a different defendant and a different set of facts. And you really need a customized defense even with the same case, same defense, different prosecutors, different results, different judges, different results. So there's a lot to talk about. This is why we love doing
Andy
What we do. That was a whole of information about release, and I'm sure we probably forgot a million things, but I like this approach that we're taking, which is just kind of hit the major points. Throw as much as we can, throw some insider tips along the way. I think that's what we're going to try to continue to do with this series. And then the next time we meet, we're going to talk about, okay, now release conditions have been determined. What's the flow of a case look like? And we're going to talk about it in multiple contexts, even all the way down to courts of limited jurisdiction like misdemeanor courts, city courts, justice courts, state superior courts, felony courts, and even all the way up to federal. We're going to talk about all kinds of different stuff, how a case flows.
Marc
Yeah, I mean, if you want to know the inside baseball of how to defend a criminal case and what criminal defense lawyers do and maybe measure it, or maybe you're going through one of these right now, this would be a great series of videos to watch to just say, maybe I should ask my criminal defense lawyer. Hey, have you thought of this? Have you thought of that? These are just, and of course we can't get to every possible scenario in these videos, but we're trying to give you a deep dive into how you do a case, what happens behind the scenes, just from our experience on doing these.
Andy
Alright, everybody, if you enjoyed this video, make sure to like it, subscribe to it, and leave us a comment down below. Maybe we missed the question that you had in your mind when you clicked on the video. No worries. Throw it down below and we'll try to get it responded. To. Check out attorneys on retainer us to learn all about our self-defense program and have a criminal defense attorney on your side 24 7 365. And to learn more about our law firm attorneys for freedom.com, learn about our philosophy and how we defend people. Until next time, this has been attorney Andy Mark. Until, and attorney Mark j Victor. Peace.
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