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From the Bench
Bail - The Basics
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In this episode we'll discuss the different types of bail, to include ROR (Release on your own recognizance), Unsecured bail, Nominal bail, and Monetary bail. The discussion will reveal the purpose and the many reasons why we have bail. We also discuss why certain types of cases involve the setting of bail as well.
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Hello and welcome. My name is John R. Bailey. I'm a retired senior magisterial district judge and a retired law enforcement professional with 12 years of experience on the bench and 34 years of experience in law enforcement. This is the 12th episode in a series of many different topics I will be providing along with my website and popular podcast. Over the years, I've realized that many people don't have much experience in navigating the court system. Having the unique experience of spending decades on both sides of the bench, I want to present a series of topics in which you may have interest. I present this topic, as well as future topics, to pull back the curtain, so to speak, to educate, enlighten, and possibly help you in a variety of legal topics. Perhaps you've already encountered a situation where having a better understanding of the legal system would have been beneficial. Or perhaps you're just interested in the legal system. FYI, I've lived and spent my entire career in public service serving the Commonwealth of Pennsylvania. So the perspectives that I'm sharing will be specific to Pennsylvania. Today's topic will concern bail. The basic types I've used as found in Rule 524, such as ROR, unsecured, nominal, and monetary. The purpose and why we have bail. We will also discuss why certain types of cases involve the setting of bail as well. I believe you'll find this extremely interesting. Today I am honored to have here as my guest attorney Michael DeSendio of the firm DeSendio Law located in Westchester. My experience with attorney DeSendio started out in 2015 when he was a young assistant with the Chester County District Attorney's Office assigned to my court. I soon discovered how well this young attorney would take control of the many criminal cases he had before him. His professionalism and ability to communicate with the officers, witnesses, and defense attorneys gained him an outstanding reputation along with his knowledge, demeanor, and presentation in the court. Michael, before I turn this over to you, our listeners need to understand that our approach today deals with your reasoning when you argued for bail as a prosecutor in many cases, and now in private practice and your thoughts and concerns in addressing bail before a judge. Keep in mind, in Chester County, as well as you know, pretrial services submits a history workup concerning the defendant and makes a suggestion on the amount. Of course, that's what we deal with on a daily basis. Michael, the audience is yours.
SPEAKER_00Thanks, Judge. And first it you say in honor, it's an honor's mind. It's always been a pleasure to be in front of you and even be thought of with respect to being a part of the podcast. I it means a lot. So I think you know, you know how much I think of you. And I'm glad highly I think of you. Um I think that there's always, whether you're talking with a client, whether you're talking with somebody outside of the system, it's always important to just take the legal aspect of it out and don't use legalese. What's bail? It's already a it's already a legal term. At its foundation, criminal cases take a long time to get through the process. There's multiple critical stages, there's multiple appearances, and if you boil everything down for layman's terms, bail is making sure people appear at every one of those critical stages or court appearances. That's what it is. So within that, we have to now parse out and make a decision what is going to guarantee their ensure their appearance. And is it going to be money, liberty, or conditions, right? And then there's also times where some individuals, all they need is a handshake. So I think that if you look at the titles that you talked about with respect to ROR and unsecured and cash bail, you could really break them down that way into very simple terms. ROR, we're going to be talking a handshake. Unsecured is going to be the threat of taking your money or your liberty. Percentage is going to be taking some and threatening some of your liberty and your money. And then full cash bail is going to be saying you're either going in or you have to pay the money. So you could boil it down that way, and we'll get into each one of them, but that's how we start. And bail, the real issue that gets confusing with it, and this is a separate criminal procedure conversation, but depending on how the individual is arrested and enters into the criminal system is really whether or not a defense attorney or a prosecutor is involved. If they're arrested on a felony and they're taken off the street by a cop before a magisterial district judge like Your Honor, I may never see them. A prosecutor may never see them. The only people who are going to be involved is going to be Your Honor and the pretrial services who make the initial recommendation. So with those, I actually would defer to you on how you you you look at those and how you're going to evaluate them.
SPEAKER_01You actually bring up a very good point. I can't tell you how many times when a situation such as that would be in front of me on either in-person arraignment or a video arraignment. And the person would say, Judge, I I want my attorney, and I would explain to them, look, we're not discussing the case. I am just telling you what some of the facts are in the affidavit and criminal complaint. You will have time to have your attorney present. I have a pretrial recommendation for bail. I just need to explore it to figure out does this fit you, or can I go outside the guidelines and make it different so it doesn't affect and of course, Michael, as you well know, we always think about the family who suffers out of them all.
SPEAKER_00Sure.
SPEAKER_01That's usually what happens before you really have the ability to get involved. Correct. So that's what we deal with.
SPEAKER_00Yeah, and I think if you boil it down, there's really two situations absent somebody getting hiring a defense attorney very quickly before an arraignment. Or for if you got picked up over a Friday and can't see a judge until Monday, which doesn't really happen much anymore with on call, but it conceivably that could happen. The two individuals who are walking into my office who I will be involved in their arraignment and will be involved in bail being set are individuals who are either sent out and sent their charges on summons, which is basically the court system saying you've been charged and your initial appearance is on this day. We're going to set your bail that day, we're going to tell you what you're charged with, we're going to tell you what your rights are, and we're going to have a preliminary hearing, which is your first chance, you know, without getting in very detail, your first chance to potentially test the evidence. Correct. That's the first person. The other person comes to me and says, I've been told I have a warrant up for my arrest, or I've been told I'm under some sort of uh either suspicion of committing a crime or I'm being investigated for something. So at that point in time, now we're thinking, all right, you may be arrested at a later time, and so we want to start preparing them to be arraigned and to have bail imposed, right? Both of those situations is what's usually going to end up in my office. Otherwise, they've already had bail set. That's just really where it comes in. So is there one that you want to talk about first, or do you want to talk about the nuts and bolts?
SPEAKER_01Well, I think I think we're all on the same page with ROR. That's usually the first offender. It's it's really something that, you know, we don't really need to throw them into the system, so to speak. We believe they're local, we know about them, we do a workup on them. And I get it, we're blessed to have pretrial services just to kind of do that workup because other counties don't have that. So when I see that, I look at it, and I look for any past history or who the individuals, and usually how they present themselves, says a lot. The ROR is is a no-brainer. Yep. Um the unsecured, I seem to think that's more important sometimes because they're faced, as you well know, with a monetary amount if they mess up and don't follow the conditions. What I've argued with, or maybe I should say discuss with other judges, is that, you know, if you're gonna put a bunch of conditions on somebody and you lock them up, they're not gonna get this done. You know. So if you go to the unsecured route and say, look, you must report to this person, um, you must follow all these recommendations. If it's a drug and alcohol evaluation, you must get this done. We always provide locations they can go. So I'm thinking to myself, if they're incarcerated, what's the chance of them doing it? Nothing. Correct.
SPEAKER_00It's not happening.
SPEAKER_01So that's why I kind of lean towards the unsecured bail because I have so many conditions that I would place on them. If they didn't follow, then of course they'd forfeit and they're now, you know, facing another situation.
SPEAKER_00Yeah, absolutely. When when somebody comes in, I I have to look at the legal side. That's separate. We don't we don't really get to that with the bail aspect of it completely. The first thing I'm saying is, who are you as a person? Who were you that night, whether you agree with the charges or not? Because you're gonna be arraigned. If we're gonna challenge them, that's happening after your arraignment anyway. So now I have to say what's gonna make his honor or her honor feel comfortable allowing you to go on the street and feel comfortable that you're uh you're gonna show up again, and then there's some other safety of the community and victim that we could talk about. But so it's my job to get that information and then to educate the bench on that.
SPEAKER_01And and I can honestly say you have done that in front of me, and actually you've done it on both sides. As a young DA, you listen to the arraignment. You know, usually it doesn't take place, but sometimes as well as you well know, it will take place uh the criminal day before a preliminary hearing on another case. And I will say, look, this is the bail recommendation, and you have stepped up and say, Your Honor, we're okay with unsecured if you want to go that job, because of the conditions you placed on them. And vice versa now, when you're now representing somebody, I depend on you to bring to my attention. Um again, I only have a piece of paper that says so much, but I I look for you to bring to my attention what you actually know about this individual. You know, what's going to convince me to say, okay, yeah, I'm gonna follow what you your suggestion to the court.
SPEAKER_00Yeah, and I I think on the the defense attorney side, I always say to my clients, now's your chance to put some elbow grease into it. If we know that there's an underlying issue with respect to alcohol, then go go get into treatment now. If we have a mental health issue, let's go focus on that now. Let's show his honor or her honor that you're not waiting until the bench tells you to do it. You're taking the initiative. It's not admitting guilt, it's getting yourself to a position where you're going to be in society and be able to follow these rules. And it helps you. It's going to help you long term in the case, it's going to help you in further arraignment, whatever it may be. And sometimes it's just it's as simple as: look, we have two months before the preliminary hearing in this case, or a month before the prelim. You don't have a job right now. Go apply for 20 jobs. Go work your tail off to try to find employment. So when I say to his honor, Judge, he's trying to turn everything around. He's been, look at how many applications he's done. He's trying to stay a productive member of society, all of those things matter. Um, and they're borne out in the release criteria we look at in the rules of criminal procedure. On the prosecution side, when I would see individuals doing that, no matter what the case was, there's a human aspect where you say, I want to also I have to do my job. But as a prosecutor, the the great ones, and there's a lot of them, they see the human being on the other side too. And they realize I represent the victim, I represent the cops, but I I represent the commonwealth. And this individual's part of that. And so if you don't lose sight of that, when you're hearing an arraignment and you're going through someone's background, you're sitting there saying, are they doing what they should be doing? Are they doing all the right things? And it makes it easier for a prosecutor to say, I feel comfortable giving them a chance, with you know, the unsecured is really that piano hanging over your head to say, if you violate, the piano's gonna drop and you owe us this money or you're going to jail, right? Yep. Um and so you wanna, as a as a practitioner, I need to educate the court, but I also need a client who's gonna want and be willing to do the things to look per, for lack of a better term, presentable to intrustworthy to everybody. And the the way you do that, so I think there's just another level. Your Honor, I'm sure, has been on the other side when I had cases. I'd call over before a scheduled arraignment and say, what's pretrial's rec? I mean, it's as simple as knowing what that wreck's gonna be, because I need to be able to talk to my client and say, maybe the wreck's 50,000, 10 percent. They might not have that money. So I have to, at the very least, be able to say to the to your honor, Judge, the recommendation is unreachable to them financially. And if your job is to keep them showing up, well, fifty thousand dollars to a Vanderbilt might not be a lot of money, but to the person who's in front of the court, that might be all the money they've had this year. So it allows you to fashion bail that's appropriate for the individual. They're not all the same. Um and so as a practitioner on the defense side, you know, we're looking at those bail release criteria, and before we get to anything, we're saying, all right, what do I want to know about you? I want to know about your ties to the community. I want to know about what type of family support you have. I want to know whether or not your family is aware you're in this predicament. Because all of those things are people who are going to hold you accountable and make sure that you you show up and make sure that you complete your condition. So that's important for us to find out.
SPEAKER_01And as well as for the, you know, I I look at the courtroom, I figure out who's there from the family, you know, I and I can tell, look, they're concerned about the spouse or or the brother or whatever it may be that is involved in the situation. They want to make sure that they don't step outside the line, so to speak. They want to make sure that they follow the conditions of the bail. One thing that I'm impressed with, because I was really involved from the beginning stages of it, was the mental health court. Yep. You know, we we were the only ones in the Commonwealth, because I would talk about this up in Harrisburg, and they would look at me like I had three heads. We were the only ones in the Commonwealth that if you were in front of me and I could either detect there's an issue or from reading the affidavit, it sounds like there's a mental health issue. I could actually pick up the phone from the bench, call somebody at Wood Services, which is what we contracted with, get somebody on the phone. If not, they were back to me within five minutes and arrange for the mental health eval. So, as you as you well know, we could we could overcome some of the obstacles in the past, especially if the person was incarcerated. They Michael, they'd sit us in prison for three months before summer, if anybody would go out there. Now that that all changed. It's very different. And I think there was a case that you were in front of me where uh the conditions are known and secured was to have drug and alcohol evaluation and follow recommendations. And I believe it was your client, I could be wrong, but I was told uh I don't have any insurance judge, and I said, No problem. We'll pick it up. The county will pick up your insurance. So basically what you're what I'm saying to you is you well know, and I don't really have to say this, but there's no reason why you can't follow through.
SPEAKER_00There's not, and I'm gonna that's a really good point that you brought up, and it's a strategy point that I use with my clients um and give away the secret, but it's important. So if somebody, let's say they're facing, let's just make it very simple, a DUI, and they're going to be looking at 90 days in jail or three days in jail or whatever it may be. Long term, if they go to inpatient, there are there's some without getting into the nitty-gritty, there's support that if it's inpatient at the very basis, it's inpatient and court ordered, then that should count as your confinement. You should get credit for that at a later time. So if I someone walks into my office and they say, I have a problem, I'm going to inpatient. I might pick up the phone, even though their prelims not for two months, and say, Hey Judge, could I get them in for an arraignment? And then I say to you or whoever I'm in front of, they really need help with drug and alcohol. Could you make getting the eval and following through with the recommendations a condition of that? So once that's in your bail bond, they go to they go to an evaluation, they get recommended treatment. I have an argument at a later time that I can use that for their custodial sentence at a later time. In addition, it also allows me to utilize county funds. So I had an individual who had absolutely no ability to, no health insurance, no ability to get into treatment, and she needed it. She needed dual diagnosis. The human aspect comes out. She wouldn't even be in my office if it wasn't for the issues she had. She needed help. And what we were able to do is get that condition placed on a non an unsecured bail. The minute that happens, our county facilities, they can't say, we're not going to help you. A judge said they have to. So now they've opened themselves up. We've opened up this whole other avenue that they could get help. They go into a county-funded place, they get them the treatment they need, and it's great. You know, and and that's those are the things you have to think outside of the box. You have to all be willing to see it that way. I think great prosecutors do that while still doing their job. I think that great defense attorneys think, how can I achieve all of the goals here? I have to think, I want I want to work with you as a person. I want you to walk out of here better. I need to mitigate the case, and I need to see if there's anything I could litigate. And you as a judge, you're sitting there saying who's in front of me, and what can I do to make sure I call balls and strikes, but also when you're not making legal decisions, figure out how you could best serve that community too.
SPEAKER_01Because that's and that's exactly how I always looked at it.
SPEAKER_00And you did. I mean, and it was always a pleasure to be in front of you because you weren't when you got on the bench, and I'm I'm patting you on the back for this, but there's a lot of them who do this, and there's some who don't. When you walked on the bench for an arraignment, the worst thing you could feel as a prosecutor or as a as a defense attorney is it doesn't matter what I say right now. You've already made a decision about what the sentence or what the bail is going to be. That's the worst.
SPEAKER_01Exactly.
SPEAKER_00Because there's nothing you could do. You and great judges, um, they come out with an open mind and they hear everything, sift through it, and make the decision. I don't always agree with it. I mean, you ruled against me many a times, and that's I still love being in your courtroom. That's part of the business. But, you know, you have to hear that to get to these bail decisions, like everything in our process, but bail in particular, because what do people care about? They care about their health, their liberty, and their money. Depending on some people, liberty and money are more than the other. Right, exactly.
SPEAKER_01Yeah. Uh I'm but you're absolutely right. I mean, I uh I'm I walk into court, I have a piece of paper in front of me. Well, I can't, you know, look at this piece of paper and then go after it and say, uh, you know, question it because it's just a piece of paper, so to speak.
SPEAKER_00Yeah, and I and I think that the bail aspect, or when we have the ability to be involved before the arraignment, the more we can educate some somebody, whether it be, you know, presenting you with a bail memorandum before you ever even see them in front of you, in certain cases that's what we need to do. And it gives us a leg up too on the defense side because a lot of times prosecutors aren't always doing that. But I think with respect to unsecured, which very simply is, you know, you will owe this if you don't comply. I think that that's that's a crucial way to get there. And it allows us to serve a lot of different options and services in service of the individual who's in the in the system.
SPEAKER_01And and, you know, to be quite honest with you, I I had more success with someone on unsecured than hitting them with a cash bail, which I knew they probably wouldn't be able to afford, or if it was posted, it was from a family member or grandparent, and you know, that that just turns into chaos.
SPEAKER_00And once they get out, what could you do with them? They're out.
SPEAKER_01Right.
SPEAKER_00Um so you know, the cash bail is we d I I will say we don't see it but for in very much more serious cases, repeat offenders. I would say the vast majority, and I'd I'd love to I actually tried to look and see if there was a breakdown of it. Um because we had looked at some of the bail rules on the Criminal Rules Committee a few year and a half ago, maybe. And we had looked at that, and I was trying to see the breakdown of how many go for on ROR, how many are on unsecured, and how many are on cash bail. And I I you'd probably even know better, but I would venture to guess that uh the cash bail is a very small percentage.
SPEAKER_01Very small percentage.
SPEAKER_00I mean you're serious cases.
SPEAKER_01Yeah, and right. Serious, and you look at it repeat offenders, or you read the affidavit and you think myself, seriously, you know, but usually there's uh a law enforcement officer there or somebody there that you know swears to the information you know what you're dealing with, and you then you have the cash bail. Now, nothing says that cash bail can't be adjusted once they're back in my courtroom with you as the attorney, and now we have another. insight on what's taken place and who they really are. But I agree. Once again, I think unsecured is a priority. Now, keep in mind it was at one time, I don't know if this changed, but when you put somebody out on ROR, there's really no conditions because it wouldn't go into the system. You know, so everything works off the system and with AOPC, you know, so the bottom line is unsecured was the safest way to go. And you could still hold over them, as you said, that piano, God forbid they don't follow through. And but the results and the completion of all the requests of the court in my courtroom there was never an issue.
SPEAKER_00Yeah. Yeah and and the cash so if somebody gets cash bail, yeah you have um a few different avenues from there. One is you're you're remanded, you go to prison and that's that. You could pay it and if you pay it, great, you're out. If you don't have the finances to pay it, then you uh on the defense side we have a few options. One is a bail bondsman and the other would be filing a motion to reconsider bail or a bail motion at the next level or when we're back in front of your honor at the first level at the district court.
SPEAKER_01Just so our audience shows that that is a bail hearing. So it's separate from everything else.
SPEAKER_00Correct. It would be a separate motion it's a separate separate process altogether and in most cases it's in front of a different judge.
unknownRight.
SPEAKER_00That would be our chance to argue and say the first judge not so much got it wrong but we disagree with it or circumstances have changed or there's a way in which we could hold this individual and ensure their appearance or the safety of the community by not having them only have cash bail. So that's the first. The other option would be that we get a bail bondsman and that's something that it's a private contractor they're a private business. They would go through client's family or whomever it would be would talk to them and typically what they do is they take a non-refundable fee that you contract with and then that client pays them that fee they go post the cash bail and now that client's beholden to them if there's a problem because they're signing as the surety saying if it's $50,000 I will post for Mike DeSendio so he can get out. Mike gets out but if there's a problem Mike owes the bail bondsman and the bail bondsman's the one who's the surety for that money. So it's a private private contract between those parties and the amounts they could vary because just like bubblegum right if one's on sale or one gives you a lesser price that they might that's how you entice business. But that would be your other option with the bail bondsman. The final option is very simple and that's you're remanded and you sit there until the conclusion of your case that's not forever. There are protections that our law places so we don't want we don't want people sitting in jail indefinitely. Correct so our Pennsylvania stick with Pennsylvania there's something called Rule 600 which basically says if the time is on the Commonwealth so as a defend def defendant we don't request a delay if all of the time's on the Commonwealth you have 365 days to bring this individual to either trial disposition plea whatever the conclusion of the case if you're on that after half of the year you could file a bail motion and say I want I'm out I should get out because they've waited over a half of a year now. We've got 180 days I want to be placed on dollar nominal bail and I should get out. If not after the 365 days if nothing's happened as a defendant we would file a motion and argue that they've exceeded their time to prosecute my client that's how the end of the rainbow goes it's either the the case is disposed of or we there it's not indefinite for them. There are protections in the law that say you're not just going to house this person forever without looking at the merits of their case.
SPEAKER_01And and it should be that I've always been a proponent of that and I'll take it even to another step you've been involved in the situation on both sides where uh defendant is charged with a DUI. It may be a situation because of the severity of the incident he may have been incarcerated by the on call judge okay and now um he's in front of of me and you're representing him and unfortunately the Commonwealth can't control this but the Commonwealth asked for a repeated continuance on the blood alcohol. And we know what's going on. I mean it could be uh it could be you know three, four months before you know the that's analyzed through through the uh private agency or PSP, whatever it may be. So that's when you really have to take a look at this and say, well I'm not can't justify this individual sitting out there. Maybe the night of what happened may you had to because of conditions, but now I'm looking at somebody maybe a week later at the most that's now in front of me and saying hey you know what? Um because you know sometimes it's three to ten days before they're set for the prelim and um now I can say you know what they don't need I look I'll put all types of restrictions on it but you don't need to be sitting out in the prison. Simple as that.
SPEAKER_00And as a prosecutor you have tools at your disposal for that too. If that type of evidence you could pick up the phone I believe with a lot of the labs there's a rush that you could put in sometimes the labs are just backed up and just in that particular circumstance but it's the prosecutor's job to be watching that clock. Exactly we're watching it but we're I'm not gonna tell you hey you know what if if you want four months you go ahead and you take four months. That's fine with me because you're not gonna just dismiss this charge right now. They're gonna get past the first level probably right so as a defense attorney I'm sitting there saying if they want four months, you know I I would not like that, but if your honor's obliged to do that, then four months is on there 365 days. Right. Whether my client's in or not, that still counts against them. So there's strategy involved in that and you have to look at the circumstances. You're looking at it looking out at us and you're saying I have to keep these cases moving and I have to serve that individual. So everybody's got different perspectives.
SPEAKER_01Everyone has a a part in this which is so important. Sure. The the one thing that I believe and I'm not sure how many other counties are doing this but Chester County years ago we started with um the credit card. Yes. So I mean you know people were saying hey you know can I post bail my credit card? Absolutely. You go back to the bail bondsman it wasn't unheard of when I'd be on call that bail bondsman would be at the counter when I came in and said uh a meeting so-and-so was arranged by another judge, me and the family here we're gonna do it makes bail, we're gonna petition that it gets released. I mean that was normal. And I always expected that but it's funny because sometimes the questions I would always be asked, it wasn't the monetary amount that shocked them it was, judge how much am I going to be able to get back? Yeah.
SPEAKER_00Because of course the county gets a percentage. They do and and historically Chester County was one of the highest numbers and I have to give our our last clerk of courts she brought it to the president judge's attention recently it was probably about a year and a half ago and we she had basically said look I looked at all of the breakdown in all the different counties and we're taking 40% of unsecured or I'm sorry percentage bails that are posted. So that's what you're not getting back. And she said it's this is a big moneymaker for the county but when I look at it it's not fair because they're complying with what the aim of bail is the the single vehicle or the single most important thing with bail is are you going to appear? Everything else, there are certain circumstances we're looking at community and we're looking at victims, safety of those two. But everything really focuses on are they going to show up? And if they get to the end of the case and their case was disposed of and they didn't fail to appear and there's not a bench warrant for their arrest, they they held held their side of the bargain. Why are we making money off that back?
SPEAKER_01There's an ethical issue and I always thought that um of course it's out of my wheelhouse so to speak but um it's funny because not only was that the question uh the other question was well you know can I go? You know if I post this can I get out of here? You know, which of course sure I mean that's the idea sometimes there was actually situations that when I would look at a cash bail recommendation, especially if it was a low cash bail recommendation, that was a no-brainer as far as I was concerned that was going on on secure because I could get more out of that by doing it. And I think that's why you see a decrease in the cash bail. Again something serious whole different story. You know and there are times where bail is not necessarily comes into the into the picture on how serious a felony may be but you know it's always like well who decides this bail? And legitimate question, especially for the person who's the first time involved in the court system. So you kind of explain this to them. But I agree out of them all I seem to get a a a bigger bang for the buck that's part of the pun with the unsecured because I can put a whole list of of uh conditions.
SPEAKER_00And how many times just how many times no matter what el what what portion of the process you are or what party you are have you seen somebody stays in for too long, posts money, loses their job, things kind of fall apart and unravel from there. It makes it it puts a magnifying glass on the negatives in their life sometimes rather than giving them the ability to say, okay now I gotta I gotta ruck up and do what I got to do to be a productive member of society, to fix my alcohol issue, to fix my mental health, just to get back in line and get back to being a productive member of society. I'm not saying always sometimes people just have a bad night but for those who are on the edges and really could use this as a jumping off point takes that off the table. And a lot of times it could create a problem for them in other aspects of their life over over what? Them talking to a bail bondsman and posting the money at a later time.
SPEAKER_01Right. And and when it comes down to it as we said earlier on you know once again always affects the family.
SPEAKER_00Yeah.
SPEAKER_01Yeah they lose their job they lose their benefits it's affecting everybody.
SPEAKER_00Well and I and I'll I'll go back just because I you asked a question and I didn't answer it fully, but I gave credit to the the clerk for bringing this up. So it used to be 40 percent now it is in no situation less than $50 that the county will keep they keep three percent of the first thousand dollars posted and they keep two percent of the remainder that's it. And then with cash bail it's a little bit of a lower percentage too. But that drastically changed from 40 percent that wasn't coming back. I mean that's that's the question people ask and for the longest time it's like yeah you're gonna get money back but you're not gonna be happy with what that check is and it's not gonna look like what it looked like when you you wrote it.
SPEAKER_01Exactly right.
SPEAKER_00But thank God they took some action on that.
SPEAKER_01Yeah and I'm glad to hear that because that was always a concern because we knew what the outcome was going to be we knew who is going to affect and uh the sad part about it is it's just you know when you when you look at it from a 10,000 foot view so to speak you see where it's going. Yeah and and that but uh but I'm I'm glad to hear that. So they're usually the questions that I'd be faced with um is there anything that we left out?
SPEAKER_00I think that the only other bail status or bail uh imposition that oftentimes is overlooked, but that would be something like a nominal bail. So we we hear it, it's called dollar nominal you'll hear it or nominal bail. And really what that we use that in circumstances where um it's almost ornamental in a way right the idea is anyone's gonna hand you a dollar and you could get out when you when it's right to do so. So it might be a situation where we say you have a case in Montgomery County we don't need to keep you in here but if I put you on unsecured you're automatically going to Montgomery County. So we say we don't want to stop you from getting out once it's right and legally beneficial for you to do so but we also don't want to give you this huge bail. So we say the Your Honor could say it's dollar nominal and then once it's time to post it's easy for anybody to post a dollar hopefully if not you know you reach in your pocket and give it to them, right? But it's more it's more of a way of facilitating a process in the criminal system. It might be directing where they go it might be to make sure they get credit for the time they're in there's a lot of different ways we may use it but it's more of a s it's it's more of a strategy point for all of us involved.
SPEAKER_01And and that's a good point we didn't cover um during an arraignment it's not uncommon to see okay there's an outstanding warrant out of Delaware County or Montgomery County. And maybe that now pushes it more to why is this now there are some times a person doesn't realize there is but there are some times where you realize they just I don't want to say thumb their nose at it but for the most part didn't obligate to their their uh responsibility.
SPEAKER_00There's a lot of times where cops will file a warrant and don't follow up. I mean that's how we have due diligence arguments. Exactly it doesn't happen all the time. But that does happen. There's a warrant place and somebody doesn't know until they get picked up for something else.
SPEAKER_01Trevor Burrus But what sends a flag up is when I see a recommendation of a dollar nominal, then I realize okay there's something missing here. I will say in a humorous time one night on a uh arraignment where it was a dollar nominal, uh the family was there and everybody was scratching to come up with what they would eventually have to be a dollar. Sure. Because in reality the a good law enforcement officer that I always dealt in front of and how I was at the time, you could follow up with a phone call saying is this person really wanted or was that warrant squashed but never taken out of the system? And that does happen as you well know. Sure. And that kind of then dictates how you're going to go with the case. But uh the the biggest one if I had to look at that ROR and the dollar nominal and unsecured in cash, unless it was something very serious 99 out of a hundred times it went to the unsecured realm because that's where I got the biggest bang for the buck with what I wanted done.
SPEAKER_00Trevor Burrus And it's I I always go back it's the piano hanging over their head. Exactly at some point in time they're the ones who are they're holding the rope. Yep. They either let it go or they they show up and do what they're supposed to do. There's no issues. Probation, unsecured bail, I mean obviously when you add conditions on it's a little different but the foundation of everything is you, me, we're all on probation right now. We've got to follow the rules. So as long as you're doing what you need to do on a daily basis it shouldn't be that it shouldn't be that much of an imposition. Obviously we're gonna put more things on there if it's a condition for drug and alcohol or whatever it may be, but um it's a way to keep everybody accountable but also allow them to continue to be productive members throughout. And also participate in their defense. That's what people it kind of takes a back seat, but it's a lot different to say, hey I got a bunch of evidence for your case come to my office when you can and we will review it with no time restrictions, with the ability to sit there and interact on a computer. You know if if somebody's in jail on that, I have to go to the prison, I have to get a specific type of room it's not as easy for them to participate in their defense. And obviously it's that's required at times, but you know that unsecured allows them to to do what they're supposed to do constitutionally and participate in their defense in a much easier manner too.
SPEAKER_01So something else to consider that Sure and you and you see how this works on the arraignment we go through a series of questions we talk about employment so forth and so on. In the back of my mind what I would always say this and I had this discussion one time in Harrisburg I said the person that's in front of me on a Raymond who's wearing a $600 watch, I mean, whether he gets incarcerated or you hit him with all these conditions, you no one knows what the employer's going to take a stance, right? When they come back in front of you at the end, they may have that watch but they don't have that job that supported that watch. And you have to realize this is what takes place.
SPEAKER_00And uh Yeah and that it's very true and it's an important point. I will just on that point there are some DA's offices when you're looking at that too where they actually from the DA side not only am I thinking okay do I need to have this person incarcerated during the pendency of this I used it when I was a DA a few times but let's just assume and I I know that other people have done this let's assume somebody's saying they're picked up for drug dealing and they're charged with a felony for drug dealing and they have a bunch of cash on them. Your Honor is asking them a bunch of questions about their background. They're saying where do you work? What do you do? Who do you support? I don't work I don't I support all these people but I don't work I have this house what type of whatever it is. They get all this information but there's one glaring problem. They have all this cash but they don't have a job. Right? As a prosecutor I might call the district court and say could I have that arraignment sheet and could you do me a favor and send me a copy of that because that's what he said in open court. And he's saying you know where's this money coming from? Well he doesn't have a job so we have to explain that it's circumstantial evidence though for me that he's getting that money from doing something and it's probably from the drug dealing right? Correct. So as a prosecutor too you you utilize your listening in the courtroom and you're listening to what they're saying. If if they're charged with a DUI and trying to figure out why they're acting the way they were and their answer is I take Xanax every day because they ask what are your prescriptions? That's on the arraignment sheet. I usually say don't say anything you don't have to say anything.
SPEAKER_01And I'll be it's a good point. I r really refrain from going to that especially in open courtroom. I don't need to discuss your personal issue other than the facts where you live and job and so with everybody in the courtroom. Sure. So if it was something really sensitive and I may have done this with you, I would call you up to the bench with your client and then we would discuss it. That way it's kind of out of your sight of everybody else.
SPEAKER_00Yeah sure but it just to just to I I know your honor wants a you know different perspective or the the prosecutor perspective but that's also what you're thinking. As a prosecutor if you're doing your job you're dealing with the immediacy is this person getting out today? And am I okay with that? Or what are conditions that would make me be okay with it. But you're also saying all right what can I learn from this right now? Because there are things they're gonna say that may give me circumstantial evidence or direct evidence of what's going on right now. So it's just another way to think of those questions that we ask and the information we share as defendant attorneys that Your Honor elicits from them. All that matters and you know keen prosecutors going to be sitting there with their ears perked up a little bit. You never know what you're gonna get there. Yeah.
SPEAKER_01Michael this has been outstanding do you think we covered I do unless there's anything in particular that Your Honor wishes to the questions I had that uh that were faced in front of me you you you surely covered. I think we covered everything that I wanted to go in with regards to the rules and um I'm very very pleased and impressed with how this went. Yeah I hope it was informative and I had a blast doing it with you again I'm honored. Hopefully you found this interesting and informative please visit my website from the bench uh which is from the bench dot info it's one word from the bench uh for future topics on my podcast. You can also find it on Spotify, Apple and Amazon as well. I assure you they'll be informative sometimes we range approximately 30 minutes, sometimes a little bit longer depending on the topic but it is the topic of interest which feeds this podcast. Most importantly though feel free to leave me your feedback. My email is judgebailey from the bench at gmail.com with any other topics you'd like to have discussed also each topic will be revisited as laws and rules change or are updated. And thank you for your time and attention.