Showing posts with label statute. Show all posts
Showing posts with label statute. Show all posts
Wednesday, September 12, 2007
Update on Bail Status
A hearing was held in court before the pliminary hearing this week. In fact it was several weeks ago. And it was determined by a judge that John, the person suspected of killing Todd, will be held without bail for the time being.
Preliminary Hearing
On Monday, we had what's called a preliminary hearing in Fairfax County General District Court. When a person is charge with a felony (in Virginia), they're entitled to a pretrial hearing, which is basically a sort of mini-trial without a jury, where a judge decides if there's probable cause to proceed with indicting and trying the person, or not (in which case, the charges would either be reduced or dismissed altogether). The preliminary hearing takes place before discovery, and it is generally in the prosecutor's interest to refrain from offering up all of their evidence at the hearing. They want to present enough evidence to pass snuff with the judge, but not more.
Chief Judge Donald P. McDonough presided at Monday's hearing. (I rather liked the man -- he seemed competent, fair, and down-to-earth.) Carrie and Detective Shillingford testified (and they both did an excellent job). Katie Swart argued for the prosecution, and Mark Dycio (an associate of Jim Love) argued for the defense. Jim Love was also present at the defense table. Our social worker from V/WAP also attended and sat with us in the gallery -- it was very nice to finally meet her in person.
The hearing was emotionally hard on us (especially on Carrie who had to testify), but the outcome was good. Chief Judge McDonough determined that there is probable cause to believe that the accused person committed the offense, and certified the case to the grand jury. The grand jury hearing will take place on Monday, but we won't be involved in that (grand jury proceedings are closed). We're not worried about that step, though -- the evidence is good and (to paraphrase Sol Wachtler) most grand juries will indict a ham sandwich. Once the indictment comes through, our next step will be to wait...and wait...and wait...until the trial rolls around, which will be months from now. Of course, we could all be saved a lot of time, trouble, and expense if John would just fess up and admit to doing what he clearly did -- but none of us are holding our breath for that to happen.
I would like to make one request regarding the trial, which will be in Circuit Court: whoever reads this, please offer prayers that we'll get a good judge who will handle the case fairly, rationally, and in accordance with the law. (If you've been reading this blog, you know there's at least one judge in the Fairfax County Circuit Court pool who hasn't always behaved that way.) So much will hinge on what evidence the judge deems admissible. So please pray that we'll be assigned a good judge.
Love,
Lisa
P.S. A note about the charges: For the purpose of the preliminary hearing, the prosecution moved to temporarily amend the charges from "murder in the first degree" to simply "murder," with no degree specified, while reserving the right to specify the degree prior to trial. The defense agreed to the amendment, reserving the right to object to whatever degree the prosecution moves to specify later. The reason for the amendment was purely strategic -- under Virginia statute, if the charge is murder without a degree specified, the court must presume that it's murder in the second degree, even though that isn't explicitly stated. The advantage for the prosecution is that it lowers the burden of proof needed to "pass" the preliminary hearing, so they don't have to play as many of their cards this early in the case. Not a bad strategy, really. Still, rumors have been flying that the charge has been permanently reduced. Make no mistake, the prosecution fully intends to charge John with murder in the first degree. And if the defense objects to the degree being reinstated in the charge, there's really not a lot they can do about it.
P.P.S. The Virginia Courts Case Information online now shows the amended charge as being murder in the 2nd degree. That is either a typo by the clerk, or a system default for murder that has no degree specified. (My guess is the latter.) Once again, I repeat, the prosecution fully intends to charge John with murder in the first degree. The amendment is only temporary.
Thanks.
Chief Judge Donald P. McDonough presided at Monday's hearing. (I rather liked the man -- he seemed competent, fair, and down-to-earth.) Carrie and Detective Shillingford testified (and they both did an excellent job). Katie Swart argued for the prosecution, and Mark Dycio (an associate of Jim Love) argued for the defense. Jim Love was also present at the defense table. Our social worker from V/WAP also attended and sat with us in the gallery -- it was very nice to finally meet her in person.
The hearing was emotionally hard on us (especially on Carrie who had to testify), but the outcome was good. Chief Judge McDonough determined that there is probable cause to believe that the accused person committed the offense, and certified the case to the grand jury. The grand jury hearing will take place on Monday, but we won't be involved in that (grand jury proceedings are closed). We're not worried about that step, though -- the evidence is good and (to paraphrase Sol Wachtler) most grand juries will indict a ham sandwich. Once the indictment comes through, our next step will be to wait...and wait...and wait...until the trial rolls around, which will be months from now. Of course, we could all be saved a lot of time, trouble, and expense if John would just fess up and admit to doing what he clearly did -- but none of us are holding our breath for that to happen.
I would like to make one request regarding the trial, which will be in Circuit Court: whoever reads this, please offer prayers that we'll get a good judge who will handle the case fairly, rationally, and in accordance with the law. (If you've been reading this blog, you know there's at least one judge in the Fairfax County Circuit Court pool who hasn't always behaved that way.) So much will hinge on what evidence the judge deems admissible. So please pray that we'll be assigned a good judge.
Love,
Lisa
P.S. A note about the charges: For the purpose of the preliminary hearing, the prosecution moved to temporarily amend the charges from "murder in the first degree" to simply "murder," with no degree specified, while reserving the right to specify the degree prior to trial. The defense agreed to the amendment, reserving the right to object to whatever degree the prosecution moves to specify later. The reason for the amendment was purely strategic -- under Virginia statute, if the charge is murder without a degree specified, the court must presume that it's murder in the second degree, even though that isn't explicitly stated. The advantage for the prosecution is that it lowers the burden of proof needed to "pass" the preliminary hearing, so they don't have to play as many of their cards this early in the case. Not a bad strategy, really. Still, rumors have been flying that the charge has been permanently reduced. Make no mistake, the prosecution fully intends to charge John with murder in the first degree. And if the defense objects to the degree being reinstated in the charge, there's really not a lot they can do about it.
P.P.S. The Virginia Courts Case Information online now shows the amended charge as being murder in the 2nd degree. That is either a typo by the clerk, or a system default for murder that has no degree specified. (My guess is the latter.) Once again, I repeat, the prosecution fully intends to charge John with murder in the first degree. The amendment is only temporary.
Thanks.
Saturday, August 4, 2007
Epic Drama Unfolding: "As the Bail Turns"
The status of John's bond (i.e., bail) is quickly becoming a soap opera, so much so that I thought I would start a new post to talk about it, rather than stringing my comments onto the old one.
Anyway, to recap "from our last episode": John was denied bond by a magistrate following his arraignment on July 2nd. Last Thursday, his attorney filed a motion for a District Court judge to review the magistrate's ruling. On Friday, the District Court judge looked at the case, acknowledged a few obvious facts, and promptly upheld the magistrate's original ruling denying him bond. John's attorney immediately filed an appeal to the Circuit Court, and a hearing was scheduled for Wednesday morning.
And now for the continuing saga: The hearing was Wednesday morning. Nobody thought he'd be given bond. But, lo and behold, the Circuit Court judge granted his request. That was very surprising (and dismaying) to a lot of us. People are now going into hiding.
Evidently this Circuit Court judge was a former defense attorney, which may or may not have been a factor in his decision. He might simply have been bored, out-to-lunch, drunk, smoking pot, or just plain stupid. Who knows? Dad says the hearing lasted about ten minutes, and that most of that time was monopolized by John's attorney. He went on and on, claiming that John was a wonderful guy with ties to the community, that the shooting was done in self-defense (which isn't true and should not have been considered relevant in a bond hearing anyway), and that the prosecution didn't have any evidence to support the notion that John is an obsessed, stalking sociopath, and thus a danger to himself or others. The prosecution was given very little time to say "actually, yes, we really do have evidence, starting with..." etc. etc. etc.
Most people charged with crimes in America are granted bond -- in other words, they're given the option of putting up collateral in the form of bail with an agreement to stay in town and otherwise behave themselves -- in exchange for being able to spend their pre-trial days/weeks/months/years out of jail. The idea is that you're innocent until proven guilty, so the government shouldn't ruin your life prior to conviction. Most people, however, aren't being charged with first degree murder.
In the Commonwealth of Virginia, first degree murder is a class 2 felony, punishable by 20 years to life. Under Virginia statute, a judge making a bond ruling in such a case is required to operate with a bias against granting the defendant what's called "admission to bail" (i.e., setting a bail amount).1 That's subject to rebuttal by the defense, of course, but they're supposed to start with the presumption that the person is a flight risk and/or a dangerous person, which are the legal criteria for holding someone without bond. The judge is not to attempt to assess the merits of the criminal case itself, but simply determine if the person is too dangerous or too slippery to let out of jail prior to trial.
Personally, I think the judge made a grave professional error, that he ignored the statute, ignored the facts presented to him by the prosecution, and is placing innocent people in danger as a result. I think he ought to be reprimanded. I'm biased, of course, but evidently, so was he. The detective and the prosecuting attorney (who have at least half a century of professional experience between them), plus another attorney I spoke to, were all agog.
HOWEVER...
...NOTWITHSTANDING THE ABOVE...
...John is, as of this moment, still in jail. What's that you say? He was granted bond on Wednesday morning, has loads of cash, and is still sitting in the tank?!! Why, yes! He is! (The cash, by the way, also makes him a flight risk, pardon my peeve...) Anyway, he's still in jail for now -- that could change. But in the mean time, we're grateful. We're not sure of the exact sequence of events following Wednesday's hearing, but we do know the following:
The moral of this story is that sometimes bail bond agents are smarter than Circuit Court judges. Go figure. I'm just grateful he's still in jail, and I hope he doesn't get out.
Sooner or later, we'll see how this soap opera plays out. That is to say, "Join us next time for more thrilling drama (as we rip our hair out) in "As the Bail Turns!" Yadda, yadda, yadda...
~ Lisa
1 The statute regarding admission to bail reads as follows: "The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with...an offense for which the maximum sentence is life imprisonment..." (Code of Virginia, §19.2-120.B, emphasis added).
Anyway, to recap "from our last episode": John was denied bond by a magistrate following his arraignment on July 2nd. Last Thursday, his attorney filed a motion for a District Court judge to review the magistrate's ruling. On Friday, the District Court judge looked at the case, acknowledged a few obvious facts, and promptly upheld the magistrate's original ruling denying him bond. John's attorney immediately filed an appeal to the Circuit Court, and a hearing was scheduled for Wednesday morning.
And now for the continuing saga: The hearing was Wednesday morning. Nobody thought he'd be given bond. But, lo and behold, the Circuit Court judge granted his request. That was very surprising (and dismaying) to a lot of us. People are now going into hiding.
Evidently this Circuit Court judge was a former defense attorney, which may or may not have been a factor in his decision. He might simply have been bored, out-to-lunch, drunk, smoking pot, or just plain stupid. Who knows? Dad says the hearing lasted about ten minutes, and that most of that time was monopolized by John's attorney. He went on and on, claiming that John was a wonderful guy with ties to the community, that the shooting was done in self-defense (which isn't true and should not have been considered relevant in a bond hearing anyway), and that the prosecution didn't have any evidence to support the notion that John is an obsessed, stalking sociopath, and thus a danger to himself or others. The prosecution was given very little time to say "actually, yes, we really do have evidence, starting with..." etc. etc. etc.
Most people charged with crimes in America are granted bond -- in other words, they're given the option of putting up collateral in the form of bail with an agreement to stay in town and otherwise behave themselves -- in exchange for being able to spend their pre-trial days/weeks/months/years out of jail. The idea is that you're innocent until proven guilty, so the government shouldn't ruin your life prior to conviction. Most people, however, aren't being charged with first degree murder.
In the Commonwealth of Virginia, first degree murder is a class 2 felony, punishable by 20 years to life. Under Virginia statute, a judge making a bond ruling in such a case is required to operate with a bias against granting the defendant what's called "admission to bail" (i.e., setting a bail amount).1 That's subject to rebuttal by the defense, of course, but they're supposed to start with the presumption that the person is a flight risk and/or a dangerous person, which are the legal criteria for holding someone without bond. The judge is not to attempt to assess the merits of the criminal case itself, but simply determine if the person is too dangerous or too slippery to let out of jail prior to trial.
Personally, I think the judge made a grave professional error, that he ignored the statute, ignored the facts presented to him by the prosecution, and is placing innocent people in danger as a result. I think he ought to be reprimanded. I'm biased, of course, but evidently, so was he. The detective and the prosecuting attorney (who have at least half a century of professional experience between them), plus another attorney I spoke to, were all agog.
HOWEVER...
...NOTWITHSTANDING THE ABOVE...
...John is, as of this moment, still in jail. What's that you say? He was granted bond on Wednesday morning, has loads of cash, and is still sitting in the tank?!! Why, yes! He is! (The cash, by the way, also makes him a flight risk, pardon my peeve...) Anyway, he's still in jail for now -- that could change. But in the mean time, we're grateful. We're not sure of the exact sequence of events following Wednesday's hearing, but we do know the following:
- Katie Swart (our prosecutor, whom we love) quickly filed an emergency appeal which hasn't been ruled upon yet.
- John has been having trouble finding a bail bond agent who's willing to sign him up. The reason for that is not public information. But given the fact that they'll lose $400,000 if he doesn't behave himself during his release, I'm thinking that might be a factor. (Observe the subtle hint of sarcasm.)
The moral of this story is that sometimes bail bond agents are smarter than Circuit Court judges. Go figure. I'm just grateful he's still in jail, and I hope he doesn't get out.
Sooner or later, we'll see how this soap opera plays out. That is to say, "Join us next time for more thrilling drama (as we rip our hair out) in "As the Bail Turns!" Yadda, yadda, yadda...
~ Lisa
1 The statute regarding admission to bail reads as follows: "The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with...an offense for which the maximum sentence is life imprisonment..." (Code of Virginia, §19.2-120.B, emphasis added).
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