Saturday, October 6, 2018

After Hours

Moonlight in Vermont
State v. Morton, 2018 VT 22 (mem.)

By Elizabeth Kruska

In a perfect world, we’d all have perfect information upon which to make our decisions. But our world is far less than perfect, and sometimes decisions have to be made on the information we’ve got.

Before I was a lawyer I didn’t totally understand how it was that someone who was arrested would then end up in court. Turns out, there’s a procedure for that. Sometimes people are given a citation and told to show up later, and generally they do. Sometimes, though, a situation is such where a person might not show up for various reasons—they’re not from the area, they have a history of not showing up, they’d be afraid to show up because the charge against them is really serious, just to name a few. If that’s the case, bail might be set and the person held until their initial appearance.

Who sets bail? The court. Not police. The court. It was decided in Merry Olde England before the Magna Carta that bail couldn’t be set by the same police who were arresting people for crimes. That had happened before and was rife with problems, as you can probably imagine. 

People don’t always commit crimes during business hours, though, which makes it complicated for bail to be set by courts that are generally open during regular business hours. There’s a rule of criminal procedure that allows for judges and certain court designees to set bail after hours.

How’s this work? A police officer calls a judge or other designee at home, gives them information over the phone, and that person orders whether bail is set and if so, the amount.

This is where the imperfect information comes in. This is a call made right around the time of a defendant’s arrest, and often while information in the case is still evolving. Police provide the judge or court designee with the information they have at the time, which is almost always not all the information.

In Mr. Morton’s case, he was arrested for attempted murder one evening after court was closed. Police called Judge VanBenthuysen, who, using the best information available to him, set bail temporarily at $150,000. The next day Mr. Morton was brought to court where a different judge held him without bail. Initially Mr. Morton was held in the custody of the Commissioner of Mental Health so he could be evaluated, and when he was found to be competent to stand trial, he sought to have his bail reviewed.

He made an interesting argument. He argued that the trial court could not hold him without bail after the overnight judge had initially set his bail at $150,000. To do so, the court would have had to revoke his bail under the statute on bail revocation.

SCOV affirms the hold without bail order, but addresses the argument. The statute section Mr. Morton argues under is meant to be used in situations post-arraignment where a defendant engages in some sort of behavior sufficient to have his bail revoked. The rule that allows for overnight bail to be set by a judge or designee is really meant to be a temporary place-holder until more information can be developed and presented by the parties to a judge in court.

So, SCOV says here that Mr. Morton is entitled to have a weight-of-the-evidence hearing if he would like, which is where the hold-without-bail order would be reviewed in light of the evidence in the case.

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