Detention Hearings - Topics

-Getting the Case

-Seeking Release from Detention

-The Pretrial Services Interview

-The Pretrial Services Report

-The Detention Hearing

-Supervision, Services – Staying out

-Review, Revocation, Appeal

Getting the Case

• Call the AUSA and Pretrial Services• Detainer?• Criminal History?• Detention? 3 Days?

• See the Client

Why Bother Seeking Release?

Rewards:

-client preference

-discovery review

-sentencing set-up

-treatment, job

-BOP designation-client relationship

Risks

-Delay?: need more info

-about case

-about release plan

-Interview pitfalls

-obstruction

-18 USC 1001

-Sentencing – pitfalls

Pretrial Services InterviewSocial History

• Education• Residential• Employment• Family

• Drug/Alcohol History• Mental Health History• Assets/Income• Contacts

Preparing for the Interview

• Review topics with client• Think expansively about the “the crime”• Be there!!• Tricky areas: drugs, mental health, finances• Timing – slow it down or fast

• Does case need some release planning?• Advise client:

• Pretrial will confirm info he provides; call the family yourself

• Lies may cost you – detention, sentencing, crime• Don’t have to answer every question.

The Pretrial Services Report

• Criminal History• Warrants, holds, FTA’s

• Social History• Third party – corroboration• Recommendation

The Hearing / Law

The Bail Reform Act

18 U.S.C. 3142

Hearing

• Defendant may testify, present information, present witnesses, cross-examine.

• Typically, information is presented by proffer. Rules of evidence do not apply.

• Victims can be heard, re: danger.• Some discovery may be had depending on

how government proceeds.

Options for the Court

1. Release on PR or Unsecured Appearance Bond – default position

2. Release with Conditions – only if judge finds flight risk or danger to the community.

3. Temporary Detention (on bail, alien)

4. Detention – no conditions could reasonably assure appearance or protect community.

Government Motion for Detention -Three Day Continuance

• Crime of Violence, with max 10 yrs or more,• Terrorism Cases,• Any offense with max of life prison or death,• Drug Offense with max 10 years or more,• Minor victim, firearm offenses, Failure to Register,• Serious Risk of Flight or Danger,• Any felony if defendant has 2 or more prior

convictions for any of the above offenses.

Detention Hearing – Burden on Government

• Serious Risk of flight or danger• No condition or combination of

conditions will:1. Reasonably assure future appearance (preponderance of evidence)

OR

2. Adequately protect community (clear/convincing evidence).

Factors to Consider

• Nature/circumstance of offense• Violent offense or drug offense

• Weight of Evidence (least important)• History/Characteristics of Defendant• Physical/Mental Condition• Family Ties• Employment

Factors (cont…)

• Financial Resources • Length of Residence in Community• Community Ties• Past Conduct• History of Drug/Alcohol Abuse• Criminal History (generally) / FTA record• Release status – supervision, bail, etc…

Conditions/Resources Available

• GPS Monitoring (various levels)• Treatment – CD and MH• Computer Monitoring• Financial Monitoring• Financial Bond/Lien• Third Party Custodian

Presumption Cases(based on current offense)

• Rebuttable presumption that person will be detained, if probable cause to believe• committed drug offense, max 10+ yrs or more, • 924(c) offense, • Conspiracy to kill in foreign country, terrorism,• Trafficking (sex, peonage, slavery), or• Crime involving minor victim.

Rebuttable Presumption Cases(Based on prior convictions)

1. Prior convictions for certain enumerated types of offenses (e.g. “3 days offenses” - violent crime, drug offense, offense against minors, FTR etc…), AND

2. That prior offense was committed while the person was on release pending trial for a Federal, State, or local offense; AND

3. A period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for that prior offense.

Presumption Cases Aren’t So Bad

• Burden of production only• Can be met via Pretrial Services Report• Some credible evidence showing defendant

is not a flight risk or danger to community,• “small burden”• Examples -

Generally

• Detention is the exception, and should be ordered ONLY in rare cases.

• Doubts regarding the propriety of release should be resolved in defendant's favor.

• Court must find that NO CONDITIONS could adequately protect the community or reasonably assure appearance.

Review

• Either side may seek review before district court.

• Magistrate may reconsider – new evidence.• Review must be prompt.• De novo review by district court.• Parties may submit additional evidence.

Release on Supervision

• Work with Client / Pretrial Officer• Additional resources needed?• Advice from Pretrial?

Revocation

• Violations – revocation/detention.• Failure to Appear or self-surrender is a

crime, resulting in consecutive sentence.• Committing a crime while on supervision

is also a separate federal crime, resulting in consecutive sentence.

Post-Conviction(plea/trial)

• Strong presumption after conviction unless:• guideline recommends probation.• Clear/convincing evidence that defendant is not

a flight risk or danger.• If an (f)(1) offense, detention required unless

clear/convincing evidence defendant is not a danger/flight risk, AND likelihood of Rule 29/New Trial motion or Government will recommend no prison.

• If remain released – self-surrender.

Pending Appeal

• Detention if it’s an (f)(1) offense; • Other offenses, detention unless:

• Clear/convincing evidence not a flight risk/danger, AND

• Appeal will likely win, or a non-prison sentence is likely (or credit for time served sentence).

Sentencing

• Release Status Report by Pretrial Services