Rant: Bond pending appeal
Everyone knows the dirty little secret in federal criminal cases -- everything is stacked against the criminal defendant. That's why so many defendants plead. Even innocent defendants. It takes a ton of courage to fight the government because the stakes are impossibly high.
One tactic the government uses against criminal defendants is opposing reasonable bail. In many cases, the government tries to keep defendants behind bars during pretrial litigation. But lately, judges have been much better about releasing white collar defendants on bond during pretrial litigation. This trend has not reached appellate bonds though.
If a defendant is convicted at trial, it is nearly impossible to get an appellate bond -- even for white collar defendants who are not a risk of flight or danger to the community. This is maddening because defendants who end up prevailing in the court of appeals end up serving time unnecessarily. And it's not because the law is bad... it's just because there is a culture of denying such motions.
Yesterday, our firm had a sweet appellate win in the 5th Circuit (we were not the trial lawyers) for a 68-year old doctor who was improperly and unjustly convicted of medicare fraud (here's the opinion). The conservative court of appeals found that the evidence against her was insufficient. But her motion for bond pending appeal was denied, so the doctor sat in prison for almost 10 months waiting for the appeal to be decided. Even though that is relatively quick, she will never get those 10 months back. In a recent 11th Circuit case, the poor client had to spend 3 years in prison before being vindicated in a published order saying that she was actually innocent. Now, that woman is seeking to be compensated for her time in prison.
There is nothing more sacred than our liberty. If a person has the courage to stand up to the government and fight the charges, and if they are not a danger to the community or a risk of flight, then courts should be willing to say that they have "close" issues on appeal (which is a pretty low standard) and grant them bond pending appeal. I'm sure that there are a handful of cases over time where someone has fled on an appellate bond, but I have never seen such a case. The harm in denying such a bond is irreversible if the defendant wins on appeal. If she loses, then the government has lost nothing.
I'm happy to debate any prosecutor or judge on this issue. Let me know and we will set up a back and forth on the blog.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
8 comments:
seems like she got away with it and the court of appeals let her off the hook, especially since sufficient evidence of her guilt could have come from the jury disbelieving her testimony. That, at least in the 11th circuit, should have been enough to sustain the conviction. (though this prosecution admittedly seems quite weak). But the larger point is that your plea for an appellate bond does not seem to be supported by this case. 10 months is probably the right result in the grand scheme of things. On the other hand had the judge decided in this case that the evidence was (admittedly) flimsy on the agreement element, an appellate bond would not have been unreasonable. So maybe you should have argued the motion for bond!
Response to 10:10 AM:
So the presumption of innocence is not a sacred thing anymore?
It's like Thomas Jefferson said -
better to make ten innocent people spend ten months in jail
to ensure that a guilty person is locked up for the duration of their appeal....
Good point on the testimony issue - disagree with the rest - how did the Court deal with a testifying defendant being disbelieved? Is the law different from the 11th?
11:49 -- she was CONVICTED -- the presumption is no bond absent a showing by the defendant otherwise. And again given how tenuous that case seems to be a bond in that case would not be unreasonable. But David is taking it a step further (for his clients of course who are white collar rich people) that they should get bond on appeal as a matter of course. nonsense. Poor black or hispanic guys convicted for guns or drugs do not get that benefit; neither should rich doctors who get themselves involved in a medicare fraud scheme.
I am 90% bleeding heart liberal. But come on, the defendant was already convicted. The presumption of innocence has already been rebutted through conviction. If the conviction is overturned, then a conversation can be had about compensating the defendant after the fact (I'd gladly do 10 months at a minimum security federal camp for $1,000,000.00).
I think there'd be no disagreement from the author that white collar rich people and poor black or hispanic guys convicted for guns or drugs should all get the benefit of a bond pending appeal. Not as a matter of course. The post doesn't say that. But if they have "the courage to stand up to the government and fight the charges, and if they are not a danger to the community or a risk of flight."
Okay, let's say a wrongful conviction is overturned. How difficult is it to get compensation? Like, when cops beat the shit out of people, and then qualified immunity comes along and strips the victim of vindication, due people suing for wrongful convictions have to cross such an insane hurdle as well?
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