Saturday, February 4, 2017

Fact Finding Needed

State v. Anderson, 2016 VT 127

By Elizabeth Kruska

Here’s a bail forfeiture case that gets reversed and remanded for further findings. Bail is very important; it’s the stage in a criminal proceeding that determines if someone is going to go home during the pendency of his or her criminal case, or if he or she is going to wait in jail. Bail is very fact-specific in each case. The court is required to weigh various factors related to a Defendant’s risk of flight; if the court finds facts tending to show that a defendant is not likely to appear for court in the future, the court can set bail.

The concept of bail is simple. People generally don’t like being in trouble. In a huge percentage of cases, the court trusts that someone accused of a crime will show up to deal with the situation. But there are defendants who don’t show up, or who are not likely to show up. Without getting into the entire history of bail (goes back to before the Magna Carta, so it would be a lot), the way it has evolved is as an incentive system. The court says, “Hey, Defendant, we don’t trust you to show up. But if you give us something of value—like money—and we promise you’ll get it back in the end as long as you keep showing up, we’ll let you go home.”

But, by and large, you know who ends up in the criminal justice system? Yep. People who don’t have bail money. The point of bail is not to create a system of pretrial incarceration, although that is often the unintended effect. The Vermont Constitution provides that someone can post bail with “sufficient sureties” and SCOV (in one of my favorite SCOV opinions) said, “Hey trial courts: that means people can use a bail bondsman, and ‘cash-only’ bail is unconstitutional here.”

So, if someone has bail but only has a little bit of money, he or she can call a bondsman. A bondsman like the appellant here, Eastern Bail Bonds. The bondsman asks for a percentage of the total bail amount—usually around 10%—and assures the court that the defendant will show up. If the defendant flakes out on a hearing, bail can be forfeited. If a bondsman wrote the surety to the court, that means the bondsman is on the hook for the balance. In this particular case, the defendant’s bail was set at $5000. If he forked over 10%, or $500, to the bondsman, that puts the bondsman on the hook for $4500 if the defendant doesn’t show up. (The bondsman, of course, can go after the defendant for repayment, depending on the kind of agreement they made initially.)

All that having been said, Mr. Anderson got arraigned in August 2013 on a charge of possession of stolen property. He got held on $5000 bail. After about 2 weeks in jail he was able to bail out with the help of Eastern Bail Bonds. He went into a treatment court, which he did for about six months. His case was returned to the regular criminal docket in February 2014. He didn’t appear for a sentencing hearing in late 2014, but there was no warrant issued because it turned out Mr. Anderson was in substance treatment.

That sentencing hearing got rescheduled for April 10, 2015, and then was continued to April 27, 2015. Mr. Anderson didn’t appear for that hearing. The court issued a warrant and ordered bail forfeiture. A forfeiture hearing got scheduled for May 22, 2015.

Neither Mr. Anderson nor Eastern Bail Bonds showed up for the hearing. The court forfeited the bail and sent notice to Eastern. Eastern got that notice around June 18, and immediately set about finding Mr. Anderson. He was picked up on June 22. Eastern responded in writing to the court asking that the bail not be forfeited.

The court denied that motion, and Eastern appealed. SCOV reverses and remands for a new hearing, saying that the trial court needed to take evidence and sort out some factual disputes before forfeiting bail. 

Why? Because bail is pretty fact-specific. And when a court is going to take the extraordinary step of depriving someone of his or her liberty, the court needs to make good findings to back up that decision. You can’t have good findings without facts. SCOV said the trial court abused its discretion in not letting Eastern put on its facts.

Eastern had argued that it got notice of the May 22 hearing. It got in touch with the court about the hearing and was told it would be put “on hold” because the defendant was in treatment. So, the bondsman didn’t go to the hearing, thinking it wasn’t happening. Then, when the bondsman got word that the hearing went forward and the bail had been forfeited, he filed a motion with the court stating the facts as he understood them. SCOV says it was a mistake for the trial court not to take this evidence, because it could have factored into the court’s decision about whether or not to forfeit the bail.

The bondsman also raises an Equal Protection issue and another issue, but SCOV doesn't address those arguments because they had not been raised below.

So, this goes back to the trial court for further findings.

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