Sunday, November 26, 2017

Bail, or Not?

Hay! That’s the wrong kind of bail!
State v. Orost, 2017 VT 110

By Elizabeth Kruska

This is a bail appeal across four different dockets. Two get reversed, and that’s really only just so that bail can be imposed in those two particular cases.

Right-o. So, Mr. Orost was charged with a whole bunch of offenses. On October 16, 2017, he was arraigned on Docket 357 (the docket numbers are helpful because there are many of them). Three of the seven counts were punishable by life imprisonment. Two were counts of sexual assault of a child under the age of 18 entrusted to defendant’s care, and one count of aggravated sexual assault.

I already see where this is going.

The State asked that Mr. Orost be held without bail under this statute. Usually bail is presumed, but not where a person is charged with an offense punishable by life imprisonment and where the evidence of guilt is great. This is apparently one of those times.

So, Mr. Orost asked for a weight-of-the evidence hearing. That’s not something that could be done that day, though, so Mr. Orost was held without bail (or, HWOB, as we in the criminal law biz, call it) pending that hearing.

The weight-of-the-evidence hearing was held 10 days later, on October 26. As a bonus, he also got arraigned on some charges in new docket numbers—362, 363, and 364. The charges in 362 and 363 did not include life imprisonment offenses. 364 did. 362, interestingly, included a count of obstruction of justice. It alleged that Mr. Orost offered the putative victim in the case a princely sum if she’d agree to “drop the charges” against him. Just going to foreshadow a little: this turns out to be an unhelpful fact, bail-wise.

They had the hearing, and the court held Mr. Orost without bail on all the dockets. He appeals, and SCOV affirms with respect to Dockets 357 and 364 (the ones including the life imprisonment offenses) and reverses with respect to 362 and 363—but that’s only because hold without bail is not available in those two cases.

We’ve talked about this before. In a life imprisonment situation, a defendant can be held without bail if: (a) they’re charged with a life offense and (b) the evidence of guilt is great. A trial court is allowed to impose bail in these cases or hold a defendant without bail. To get to that decision, the court has to determine if the evidence of guilt is great (because really, sometimes it is and sometimes it isn’t). Then the court has to decide whether it should exercise discretion and grant bail.

The trial court analyzes a hold without bail request subject to the same standard as a motion to dismiss for lack of prima facie case (or, LPFC, as I like to call them). That is, whether the State can show there are sufficient facts to sustain a guilty verdict. The court is supposed to consider whether, taken in the light most favorable to the State, there is sufficient admissible evidence upon which a jury could convict the defendant. If a defendant appeals, SCOV reviews this independently.

If SCOV agrees that the evidence of guilt is great, SCOV then looks to see whether the trial court abused its discretion in making its decision about whether to deny bail. Since we’re talking about a life imprisonment offense, the presumption is actually toward holding the defendant, not releasing him or her.

Here, SCOV concludes that the trial court was correct in finding that the evidence of Mr. Orost’s guilt was great. The court looked at the affidavits in the case, as well as the affidavit by the putative victim saying that Mr. Orost offered her a bucketload of money to “drop the charges.” SCOV reasons that together, this all was enough to satisfy the standard.

Mr. Orost argues that the putative victim’s affidavit was inadmissible and not sufficient to support the finding. SCOV says that in this kind of proceeding affidavits are A-OK, and then cites some cases to back that up. SCOV also says that the affidavit was specific enough to support the charges, while Mr. Orost tries to argue that was not the case.

SCOV also points out that although the trial court could have granted bail, it isn’t required in a case like this. The trial court weighed the seriousness of the charges, the number of them (21, as in blackjack, and the age at which one can legally buy Vermont’s finest adult beverages) the obstruction of justice allegation, an allegation that Mr. Orost violated a restraining order, and the potential for life in prison. The trial judge basically weighed all these different things together and said, “No bail for you.” Mr. Orost also does have some family ties, but that gets tricky, considering the fact he’s alleged to have molested his daughter and then offered her a hundred boxes of ziti to drop the charges.

SCOV does reverse with respect to Docket 362 and 363. The trial court ordered that Mr. Orost be held without bail in all dockets, but neither of those have life imprisonment offenses. So, SCOV sends that back for bail to be imposed in those two cases. Realistically, though, he’s held without bail in the others (357 and 364) so bail could be as low as a dollar, and posting it wouldn’t get him out of jail.

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