GET FREE(ON PRETRIAL RELEASE)

SARA BRIN, AFPDJUNE 27, 2019

Can I get the Cardi B Vid here?

STATS (NOT THE MOST RECENT)

• Fiscal year 2017:• WAW Release Rate: 72.15% (not too shabby!)

• National Release Rate: 49.87% (abysmal)

Pretrial Services reports that national release rates increased 2% in FY 2018 (promising?)

WHAT WILL WE COVER?

•Getting the Case

•Pretrial Services (What, When, How?)

•The Initial Appearance and Release

•The Detention Hearing and Release

GETTING THE CASE

• Call/email us if we are covering for you!• Read the Complaint/Indictment

• Check for 18 U.S.C. § 3142(f) Offenses• Call the prosecutor

• Are they going to move to detain? Ready to go or 3 days?• Priors? Detainers? Where arrested (state custody? surrendered?)• More about the case (especially if an indictment)

• Go see your client• Lots of advice about how to handle that first meeting• Email/phone monitoring at FDC/BOP/KCJ• Family/friend/support contact info• Preview the Pretrial Interview

PRETRIAL SERVICES

• Work directly “for the Court”• Role is dual:

• Investigation (Pretrial Services Reports)• Reports are confidential (18 U.S.C. § 3153(c)(1))• Pretrial Interview (in lockup, at FDC, or in their office post-release)

• Atty should be there with the client (can kick PTS out if necessary)• Social history (“ouch” areas: dv, immigration status, gangs)• Drug/alcohol History (US v. Scott, 450 F.3d 863 (9th Cir. 2006))• Mental health history• Assets/income• Contacts• Guns, dangerous weapons, dogs?

• Supervision• After release on bond• Any modifications• Any bond violations• Recommendation for self-surrender if conviction

WHEN DO YOU GET THEM OUT?

• Initial Appearance!• Fraud, Postal Theft, Extortion, Illegal Reentry, Threats

• Maybe: Others (talk to AUSA)

• Later at the Detention Hearing!• 3142(f)(1) offenses:

• Drugs, 924(c), guns, failure to register, robberies, terrorism, child porn

• Maybe: Others (if you didn’t go forward at the initial)

INITIAL APPEARANCE

• Upon your client’s initial appearance, the Court “shall issue an order” releasing that person (18 U.S.C. § 3142(a))• Your client has a right to release! • Unless it there is a 3142(f) factor, your client should be released without a detention hearing, without a PTS

report, etc. • So, where….

• Not enumerated type of crime, not “serious risk of flight” or danger, not someone with recidivist history of enumerated types of crime…..

• RELEASE on Personal Recognizance or Unsecured Appearance Bond (18 U.S.C. § 3142(b))

• No conditions, no nothing!*

*Results may vary

HICCUP!

• You have a fraud case but AUSA is saying they are moving for detention?• Challenge it!• They have to show “serious risk of flight” or that they pose a

threat (18 U.S.C. § 3142(f)(2))• Serious isn’t just “her mom lives in Paris”• Serious might be that she has a bazillion dollars and tons of

houses everywhere, including non-extraditable countries

If you have a hiccup case, just look at the amazing checklist we’re going to make available to you with all the law and good stuff you could ever want. (All credit goes to the amazing Alison Siegler at the U of Chicago Federal Criminal Justice Clinic)

DETENTION HEARING

• § 3142(f)—The F-Factors• Govt requests detention hearing for (f)(1) offenses-

• Generally: guns, drugs, child porn, terrorism, minor victim, sex trafficking, bank robberies

• Timing: they get 3 days to prepare, we get 5 (18 U.S.C. § 3142(f)(2)(B))• Govt OR judge for (f)(2)-

• Serious risk of flight• Serious risk of danger• Govt burden to show no condition or combo of conditions will:

• “Reasonably assure” future appearance (Govt shows by preponderance of the evidence)

• “Reasonably assure” safety of community (Govt shows by clear and convincing evidence)

• The standard is not that we “guarantee” their appearance or public safety

DETENTION HEARING CONT.

18 U.S.C. § 3142(g) Factors:

• The nature and circumstances of the offense (including whether is it a “crime of violence,” sex trafficking, minor victim, terrorism, drug, firearms or weapons case)

• The weight of the evidence against the person (*Least important factor*)• History and characteristics of the person:

• Character, physical and mental condition, family ties, job, how much money they do or don’t have, how long they’ve been in community and community ties, drugs or alcohol abuse, past conduct, criminal history and court appearance compliance

• If they were under a criminal justice sentence when they committed this crime• The nature and seriousness of any danger to the community(NOTE: immigration status is not a factor)

18 U.S.C. § 3142(c)(1)(B) Conditions:

• Must impose “the least restrictive further conditions”• Some common conditions in this District include:

• Pretrial supervision• Employment/schooling• Drug and mental health treatment• Location Monitoring (different levels of restrictions)

PRESUMPTION CASES

Two kinds:

• Present Case: 18 U.S.C. § 3142(e)(3)• Honestly, it’s a lot

• Firearms in furtherance of “crime of violence” or drug trafficking

• Child porn or minor victim

• Sex trafficking

• Conspiracy to kill or terrorism offense

• Drug offenses with a max of 10 years of more (pretty much all of our drug cases)

• Prior Case: 18 U.S.C. § 3142(e)(2)• Weird and REALLY unusual fact pattern involving prior enumerated conviction that was sustained when on

release pending trial for another case and also that no more than five years has passed since conviction or date or release

What is our burden to combat that presumption of detention?

• Burden of production—can be met by the Pretrial services report• Some evidence exists showing that our client will not run or hurt anyone

YOU LOST AND YOUR CLIENT IS DETAINED

• If your client gets detained what are your options?• You can appeal the detention order all the way to the Ninth Circuit!

• 18 U.S.C. § 3145(b) and FRAP 9(a)• It’s all de novo, so keep trying!

I ’M NOT READY!!!

• Most common reason is that there is no release plan for your client

• Continuance? • Not any real mechanism for that under the BRA, but you can always ask and give “good cause” pursuant to 3142(f)(2)(B)

• Family member’s attendance or testimony

• Not a ton of pushback

• Also: stipulation without prejudice to reopen pursuant to 3142(f)(2)(B)• Standard for reopening is that “information exists that was not known to the movant at the time of the hearing and has a material

bearing on the issue” of whether conditions would assure the appearance of the client and protect the community

• Best practice might be to stipulate because “at this time, do not have a viable release address”

• Magistrate judges will reopen without much of an issue

GET OUT OF THE MINDSET“BUT S/HE’S GONNA DO TIME…”

SO WHAT, TRY ANYWAY

• Client trust• Law is pretty good for us• Engagement with the case• Sentencing benefits• Self-surrender recommendation (helps BOP designation)• Can’t hurt (ish)

Get Free�(on pretrial release)���Sara Brin, AFPD�June 27, 2019Stats (not the MOST recent)What will we Cover?Getting the CasePreTrial ServicesWhen Do you get Them out?Initial AppearanceHICCUP!Detention HearingDetention hearing Cont.Presumption CasesYou lost And Your Client is detainedI’m Not Ready!!!Get out of the Mindset�“But S/He’s Gonna Do Time…”