Sunday, February 19, 2017

A Bail Appeal

This photograph of hot chocolate
 has nothing to do with bail.
It’s cold and windy when I’m
writing this, and I think hot
chocolate would be nice.
State v. Bullock, 2017 VT 7

By Elizabeth Kruska

Bail, of course, is not meant to serve as punishment before someone is convicted. That’s not the point and it’s not what bail is for. Bail is meant to ensure that someone is going to show up for trial. But, there are going to be times when someone is accused of something so serious that no amount of bail is going to ensure his or her future appearance. Why would someone show up for trial only to be convicted and sent to jail? The likelihood of that defendant deciding to beat feet and make a run for the border goes up as the seriousness of the case goes up. Nobody’s outrunning the marshals over stealing a pack of gum. That might happen, however, if someone’s looking at spending life in prison.

That’s why Vermont has a specific section of the bail statutes specifically for lif- imprisonment situations.

The State can (but is not required to), seek to have a defendant held without bail if the defendant is charged with an offense where the maximum possible penalty is life imprisonment. There’s a separate section having to do with hold without bail requests in violent crimes; that’s not what was considered here, so we’re going to save that for another day.

The State has to show more than just that the defendant is charged with such an offense. The State has to prove to the court that it has substantial admissible evidence of guilt exists and that the evidence could reasonably lead the factfinder to conclude that the defendant is guilty.

In this case, Mr. Bullock was charged with three separate offenses for which he could be sentenced up to life in prison; human trafficking, aggravated sexual assault causing serious bodily injury, and kidnapping with the intent to sexually assault. These are really serious charges. The State sought to have Mr. Bullock held without bail pending trial. Mr. Bullock objected.

The court held a hearing and a recording of the complaining witness was played. She gave a statement explaining what happened and swore to the truth of it. The trial court felt that was sufficient and held Mr. Bullock without bail. Although the court agreed there were some foundational issues with the recording and conceded it would not be admissible at trial, it was sufficient for the bail hearing. The trial court also concluded there were no combination of conditions of release that could be imposed that would be appropriate in this case.

Mr. Bullock appeals and SCOV affirms. SCOV looks to State v. Duff, which is, and has been, good law on bail in Vermont for nearly thirty years. Duff doesn’t say that during a bail hearing the State has to put on all the same evidence it would put on at trial. What it does say is that the State’s got to show it has enough so that at trial it can prove its case. In this case, the State has, at the very least, a sworn statement by a complainant that squarely fits the elements of two of the charges. If she were to testify consistently with her statement, that would be sufficient to convict Mr. Bullock on those charges.

SCOV is clear that the burden of proof in the hold-without-bail analysis is lower than at trial, but is more than mere probable cause.

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