New York City criminal defense attorneys are often always asked under what circumstances can the police search you, your car, or your home. People tend to know that the 4th Amendment stops the police from conducing unreasonable searches and seizures, but beyond that there’s a lot of confusion. This is the first in a multi-part post that attempts to address these complicated issues. These are only a general posts about the issues associated with these circumstances and are not intended to substitute legal advice.
In the last few blog posts I’ve discussed how bail works in the New York State Court system, the different kinds of bail bonds that exist, and how a surety hearing works. In this post I’m going to briefly tackle how bail works in the Federal system. Bail and how bail works in the federal system is a lot different than in the New York state system.
An observer at a New York City criminal court arraignment may hear a judge set bail in a certain amount and will then hear the judge say “and I am ordering a 72-hour surety.” Clients, their families, and defense attorneys are annoyed when they hear the judge order the surety because it means the defendant will likely have to stay in jail for at least another three days even though people can bail him out immediately. So what exactly is a surety?
In my previous post, I discussed how bail works in New York. The next question that usually comes up when discussing this topic is: what are the types of bail that exist? What happens after a judge just set a dollar amount of bail necessary to ensure your return to court? What do you do? How do you actually get your friend or loved one out? To answer that question specifically, you have two options. The purpose of this post is to discuss them.
In any jurisdiction in the United States, a person who is accused of a crime is presumed innocent unless and until his guilt is proven beyond a reasonable doubt as to each element of every crime charged in either an indictment or other accusatory instrument. It stands to reason that if a person is presumed innocent while they “fight the case” it would be incredibly unfair and inconsistent with that presumption of innocence to have the person incarcerated before they have even been convicted. On the other hand, if a person is charged with a very serious crime that could lead them to spend a significant portion of their life in jail and if the case is strong, the person may have a strong incentive to flee. The concept of bail exists as a compromise between the ideals of our justice system and the reality that free people don’t like losing their freedom.
I am often asked by clients to explain to them the differences between the criminal justice system on the state and federal level. I will try to explain some of the differences in both a succinct way and then in a more elaborate way. Some people mistakenly think that the case is more serious and the chances of prevailing are smaller if the case is federal. This isn’t true. Every case is unique and how it is handled matters. This is true regardless of where the case is heard. You need a good lawyer either way.
Suppose hypothetically speaking that a six-year old child disappeared without a trace in lower Manhattan in 1979. Suppose further that there are two suspects in this disappearance. One is a mentally diminished man who worked at a local deli just a few blocks from where the boy lived. This man has several psychiatric issues and has a very low IQ, but has no history of violence either before or after the event. Suppose this man went on to live a somewhat normal life in which he raised a family in New Jersey. Suppose there is absolutely no allegation that he ever harmed anyone ever other than this one time where he brutally murdered a six-year old boy. Suppose the other suspect is the boyfriend of the boy’s babysitter. Suppose this person is a known child molester who was twice convicted of molesting children, one who was six and one who was eight. Suppose the suspect with no record, but who has an IQ of approximately 70 spent multiple hours with detectives off camera before he gave a 35 minute confession on camera to killing the kid and then “throwing him out” like garbage on the street. Suppose the convicted child molester also made a statement to a different prosecutor that he was “90 percent sure” he molested the boy right around the time he went missing. Who would you think was the boy’s killer?
The New York Times reported this morning that a Staten Island judge has refused to release the minutes from the Eric Garner Grand Jury Proceeding. This is not even remotely surprising. Generally speaking, Grand Jury minutes are rarely released. The concept of Grand Jury secrecy dates back hundreds of years. It exists so witnesses can feel safe in testifying against others and it stops the targets of investigations from knowing they are a target of an investigation. The concept of Grand Jury secrecy is so serious that it is actually a felony to illegally to even discuss what happens in a Grand Jury proceeding unless certain criteria are met. There are some pretty obvious exceptions to this rule. Most notable is that if the case eventually proceeds to trial then the defense attorney is entitled to have the minutes from any witness who testified in the Grand Jury if the prosecutor intends to call that witness at trial. The lawyer doesn’t get these minutes until before opening statements in a jury trial, or before the first witness testifies in a bench (judge) trial. The Grand Jury minutes of a defendant are also discoverable if the defendant chooses to testify on his own behalf in the Grand Jury.
Watching “the Jinx” on HBO was certainly on my list of things to do. Indeed, I knew about the story and I wanted to see it, but I kept putting it off for when I had more time. Then over the course of this weekend, Robert Durst got arrested for the California killing of Susan Berman and I got a news alert for quite possibly the biggest spoiler alert in recent history from the New York Times. So I sat down and plowed through the series. From a criminal law standpoint, it’s obviously fascinating. I am annoyed at myself for not watching it sooner. In any event, for those that don’t know (SPOILER ALERT), Robert Durst basically said he committed all three murders when he thought he was off camera. He was still on microphone though and the apparent confession was recorded. That recording aired last night during the documentary’s finale.
The Michael Brown and Eric Garner cases have gotten a lot of attention lately. And because in both instances the grand jury failed to indict, the grand jury system has also gotten a lot of attention. It seems like the process itself has come under
indictment attack. But how does the grand jury system work?
A grand jury is a secretive body that is composed of regular people who get jury duty. There are two kinds of jury duty a person can get. The first is a summons to serve on a petit jury and the other is for a grand jury. Most people who watch TV or follow the news are familiar with a petit jury. This kind of jury is usually composed of 12 people and their job is to determine at trial whether the evidence proves beyond a reasonable doubt that a defendant is guilty. They usually sit to the side next to witness stand. A judge presides during the trial, the prosecutor is there, there is a defense attorney, the defendant, etc. They hear opening statements, testimony, summations, and then they deliberate and reach a verdict. A grand jury, on the other hand, is a fundamentally different animal.