If I am presumed innocent, why am I in jail?

A lawyer down the street was ahead of the times in what came to be known as the “Me Too” movement. He developed a favorable reputation during the 80s and 90s representing children and (mostly) women in civil cases against the people who physically or sexually abused his clients.

He remains passionate about the cause.

My interpretation of his views is summarized as follows:

People don’t make up allegations of abuse;
Anything the accused does to defend himself causes further harm to the “victim;” and
The standard for proving allegations of abuse should be lower than the standard for proving other allegations.

I was a young defense lawyer when we faced off regularly. To say we disagreed would be a monumental understatement. I consider his positions (at least my interpretation of those positions) dangerous to due process, the right to effective assistance of counsel, and the presumption of innocence.

And yet, I admire and consider him a dear friend. I think of him fairly often.

One phone call several years ago is particularly memorable.

Lawyer down the street: "I have a client who needs your help." Amos: "Okay, what’s up?” Lawyer down the street: "He is accused of sexually assaulting another student.” Amos: "You used the term “accused.” Lawyer down the street: "Yea, we believe he is innocent.” Amos: "Come again!” Lawyer down the street: "It was all consensual.” Amos: "What makes you think so?”

Lawyer down the street: "We interviewed a third person, another female student, who was present for and participated in the entire encounter. Dinner, evening [relations], sleep, morning [relations], and breakfast together. She described a consensual encounter between the three in vivid detail.”

Mostly, I think about this conversation when my clients surrender for service of a warrant, are arrested, or before a hearing to set bail. (What I like to call conditions of release.)

Despite the presumption of innocence, jailing a person accused of a crime pending trial is far too easy and common. Few seriously consider the life-altering consequences of this practice.

The client I described earlier was not charged with a criminal offense. But consider the potential impact if he had been charged:

We surrender him for service of a felony warrant, which creates a public record.
A magistrate sets a six-figure secured bond.
He stays in jail until someone posts the full amount or pays a bondsman up to 15% for his release.
The bondsman’s percentage is never returned.
The client’s family uses resources that could go to hiring competent counsel, retaining necessary experts, or investigating the underlying facts.

People unable to post this money lose jobs, opportunities to earn money for defense costs, chances to continue educations, the ability to support their families, and their homes. Those are in addition to the monumental collateral punishments created by a public accusation in the age of social media.

Our pretrial release statutes favor release without monetary security. But the reality is different. In certain counties, judges scoff at the idea that a person accused of a serious crime would be released without posting a small fortune for a monetary bond.

Judges are obligated to balance the presumption of innocence against the danger a person’s release presents to the community and likelihood the person will appear for court. The ability to post a secured bond, however, says very little about either.

There is reason to hope these practices are changing, albeit slowly.

Some jurisdictions and guidelines are moving toward lower secured bonds and individualized assessments.
Courts are beginning to seriously consider factors like a person’s support network, job prospects, criminal history, and mental health.
Conditions of release are beginning to favor more practical solutions, like pretrial monitoring.
Just this week, a judge reduced bonds substantially for two people charged, but presumed innocent, of murder in a highly contested case in Durham
Unsecured bonds or written promises are becoming more common.

Even these changes have limitations and may be unfair when imposed for a mere allegation.

At the same time, the debate about the problems created by monetary bonds tends to highlight the importance of fair bail as a tool to preserve and emphasize the presumption of innocence.

Often, people are accused of crimes because the crimes occurred. Sometimes, these crimes are horrible offenses against the sanctity of another’s home, cause severe economic hardship, or result in terrible physical and emotional injuries or death. Many times, the people accused committed the offenses.

That doesn’t mean we should assume the investigators and prosecutors have it right in any given case. In fact, the opposite is true.

The presumption of innocence should mean what it says, which is more than words we use perfunctorily to describe a person’s status before trial.

If you don’t believe it, ask Henry McCollum and Leon Brown, the two brothers a federal jury in Raleigh just awarded $75,000,000 after they spent decades in prison for horrific crimes they didn’t commit.

We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives.

Call if you need us, or if you just want to say hello.

Amos