Vermont Legislature SmartTranscripts:

[Martin LaLonde]: Welcome back to the House Judiciary Committee, and I was going to be conducting question from

[Martin LaLonde]: Benjamin to H409. Just a little background before I turn it over to Michelle. This was one of the bills that Ben Navagroski did work on, but I think Michelle was up to speed after talking, chatted a little bit about this. So we worked a lot on this last year trying to figure out some language to essentially instruct the court on how to address certain facts and whether they're sufficient for revocation and bail. And we continue to get the language right. And we worked with state attorneys, with the fathers, the folks of legislative council, and it was just really a difficult approach. So towards the end of last session, we decided to go a slightly different approach, which was to make it easy to appeal denial of emotion to revoke appeal. And really allowing advancement of what could be considered sufficient grounds for revocation of bail to occur based on the facts and case as opposed to us kind of spelling, trying to spell something out. So we put that in the miscellaneous bill and we did have testimony on it. I have invited a couple people in as well. I didn't think we needed very much more testimony on it, but there's one other component in here that I want to get folks to weigh in on. But in any event, we did put this in the miscellaneous bill because of timing issues is what I heard from the Senate Judiciary Committee. They took that out. They wanted to spend more time on this. So I really want to send this back to them because I think it's a pretty important step for addressing individuals who are really their behaviors such as missing trial or missing appointments, missing court dates, is interrupting the ability to prosecute these cases and should potentially be a basis for revocation of bail. So it's important for the state's attorneys to be able to make those arguments. So in any event, I wanted to get this over to the Senate because I think it's a pretty important step for what we're dealing with with a bail. There's that component and there's the component regarding expungement. And that's really, consider that a technical fix to correct something that was overlooked when we did the ceiling block last year. That's my introduction. And now we'll have a walkthrough from Michelle, unless there's questions about kind of the background.

[Michele Childs]: Thank Michelle. Thank For the record, Michelle Chao's Office of Legislative Counsel. And we are taking a look at an amendment to H-four zero nine relating to procedures for bail revocation. Everyone should have a copy and see up in the header, it should be draft 2.2 that's dated today at 12:50. So as the chair mentioned, there's two substantive sections to this bill. The first one being, I think, as Chairwoman mentioned, is just a technical fix. So as everyone is well aware, we spent a lot of time on the ceiling bill last year. It took probably five years, five or six years of legislature working on a ceiling bill, and then it finally crossed the finish line. And somehow we never really checked cross references outside that chapter to see whether or not there was anything that might mention and refer to that because you have your own chapter for assimilian expungement in Title 13. And we overhauled that whole chapter but didn't go looking elsewhere. And so what you have there in Section one is an amendment to Section 7,551. So if you look at the language starting on page one on line 11, Subsection B, So there's some limitations around imposing bail for essentially minor offenses. So what it says under current law is that you can impose a bail amount for a misdemeanor that is expungible under the law. And then it references the expungement law, which is now the ceiling. And then there's a little backup there, which is that if the court finds that the court needs to impose bail to prevent or mitigate the risk flight from prosecution, then it sets a maximum bail amount of $200

[Martin LaLonde]: Yes, no.

[Thomas Oliver]: This is where I have my first question. I understand that completely. My concern is only after the initial appearance. What if the person does not show up for the initial appearance? Does that go over to an exception in rule three where they can set bail?

[Michele Childs]: So you mean they so the court issues

[Thomas Oliver]: No. The well, the officer issues a citation for somebody to appear on a misdemeanor, it is sealable now. Not explainable, but sealable, and they do not show. They can

[Martin LaLonde]: set bail. So, yes, my understanding is they can set bail if somebody is not shown because they are a risk of flight. If it's a sealable misdemeanor and it's not a subsequent offense because we changed that a couple of years ago, It's a $200 grant. If the underlying offense is a sealable vote. Right. Well, I don't think the no show from

[Thomas Oliver]: The intent to this makes it sound like, well, we're not gonna set any bail if if the person shows up. Right?

[Michele Childs]: I get what you're saying there. So you're saying it it still would be they still haven't made their initial appearance at arraignment. Right? And they just haven't shown up. And let's say if they keep issuing and they and they keep failing to appear. So let's say they issue something and say, well, now you have a new court appearance and then they don't show up for that.

[Thomas Oliver]: This is where my thing kinda comes in.

[Martin LaLonde]: Yeah, and I agree that that's an issue we need to address. But I just, again, don't see how this change addresses that one way or another. But are you suggesting, is this the part of the statute that your other bill is looking to address? Because I thought it was elsewhere.

[Michele Childs]: So I think you're working on something with Eric. Why don't I connect with him? I think I understand your question, which is that, is there something in here that means that you wouldn't be able to set bail, like, the second or third time they

[Barbara Rachelson]: you know, once they finally do appear? Well, like,

[Thomas Oliver]: my experience with it is, since COVID, they didn't often come to the courthouses, so they would issue citations to people under most cases, unless they really had to lodge them. And then others, if you did cite them for any crime that you would normally cite them for, prior to COVID, there was some bail set, be it $200, whatever. So the intent was that they would be detained and go into custody until their first business day that they could get into court. But now we're catching people, and the warrant actually sends to give them another citation. That I disagree with for numerous reasons,

[Kim McManus]: but I can get into that. Let me since

[Michele Childs]: you guys are just gonna be talking about today, you're hoping to vote it tomorrow, but not doing anything with it today. Let me connect with Eric to see what he's working on for you. See where there's a nexus if there is one on this and make sure that we can answer your Yeah, question for

[Martin LaLonde]: and right now all this is doing is changing expungement to ceiling. And your scenario, the only effect this has currently and going forward is that there's a $200 cap on that bail that set. They don't show up on arraignment that day.

[Thomas Oliver]: Right, but it's just the appropriate place to have it.

[Martin LaLonde]: Right, I'm just wondering, right. I understand what you're saying now. Is this where that kind of language could be? Okay, yeah. A large part

[Thomas Oliver]: of my concern comes under the NCIC policy. It doesn't allow you to issue a citation to somebody as a mechanism just to bring them back. If you enter a warrant into NCIC through BCIC, you have to have the intent to take custody of the person. Otherwise, it's illegal to do. Not illegal. It's against the policy in the GIC and BCIC.

[Martin LaLonde]: So I agree we have to vet that issue, and let's find out if this is the proper place to vet it. And if not, where where is it gonna be? That's where I thought.

[Thomas Oliver]: That's why I asked. Okay. Yeah.

[Martin LaLonde]: Yeah. I got it. Yeah. Okay. So on that one.

[Michele Childs]: Okay. But I think it sounds like everybody understands this one, which is you have to mitigate risk life from prosecution. You can set the maximum of $200, but there's just two locations in this existing that still say expungement but refer to the section that has now been changed to ceiling. So it really is just a technical because it's referring to a section of law that's already been substantively changed. It's done also by by the gentleman last year. So we're just chewing it up with what you passed last year. So section two gets to the part that the chair had mentioned, that this body already passed and sent over to the summit last year in the miscellaneous bill. Essentially, there's some technical changes or getting rid of gender.

[Kim McManus]: I got it right here.

[Thomas Oliver]: Under appeal, condition to release or bail revocation Mhmm. A person who is detained or who's released on a condition requiring a person to return to custody. So I'm assuming they were. I was just wondering if that was this is only pre this is pretrial. Mhmm. Okay. That's all I need. Thank you.

[Martin LaLonde]: So

[Kim McManus]: if you take a look

[Michele Childs]: at let's move on to page three because the others are just little language changes to conform to drafting convention. So subsection C, and so that starts on line 11. And you'll see right now, it's not subdivided, but we're adding a new subdivision too on the next page. So current process is that when a person is released, either with or without bail or other conditions of release, the state can appeal that decision or those conditions or the bail amount to a single justice of the Supreme Court who can hear the matter at their discretion and refer it to the entire Supreme Court for hearing. Any order that is appealed is to be affirmed by the justice or the court if it's supported by the proceedings below. So they're looking at the information that the lower court had considered that was before it. And if that evidence that's there on the record supports it, then they're to affirm that decision. If the order is not supported, then the justice or the Supreme Court can remand it back to the trial court for a further hearing or can, either with or without any new evidence coming in, either modify or vacate that Lower Court building. So that's existing process. That's not being changed. What you're doing is you're allowing another avenue to use that process. So look at page four, top of the page, so new subdivision C2 starting on line one. So when there's a request to revoke bail by the state, so the state says, here's our reasons why you think this person's bail should be revoked for violating these conditions, for violating the no contact order, for committing a new crime, whatever it is. And if that request to revoke bail is denied by the court, the state can appeal the court's order, in the same manner that you can right now under subdivision c one. So it's using an existing process. So you're not creating anything new for the court, but you're creating another avenue. So the court, and I think the chair kind of addressed this in his opening remarks about it, is that one of the issues that H four zero nine, the underlying bill, was trying to get at is to try to really address with some clarity under what circumstances will repeated violations of conditions basically qualify. And could you revoke bail? And because of constitutional requirements and everyone or just about everyone being entitled to bail as a right, there's kind of it's kind of a narrow lane there. And I think what you guys were trying to do last year is try to figure out how to give the court some more guidance and aligning with your policy that there could be circumstances in which repeated violations or new crimes or things like that may justify revocation of bail. But I think this avenue is gonna allow the state to be able to go in and make their case there and hopefully build a record about circumstances because it's very factually based.

[Thomas Oliver]: Revocation or impunity. Mhmm.

[Barbara Rachelson]: Well, this this new stuff is just for the revocation, this process. So, Michelle, in e, where the person held without the no prior can be entitled to the review, would that apply if the state goes through that process to revoke bail? Like, would be

[Michele Childs]: They don't have bail.

[Barbara Rachelson]: Okay, they don't have the same exact words. If they're being held without bail because the state appealed the decision, right, what we're adding in Well, the

[Michele Childs]: state's not going to appeal the decision not bail the defendant. Do know what saying?

[Kim McManus]: Like, so, like, the gonna be the it's gonna

[Michele Childs]: be the defense that's gonna challenge it, not the state. Like, the state. So, like, think about who's who what their particular interests are.

[Barbara Rachelson]: But if the state wants something I think it was empty, I'm sorry. I'm not used to it. So let's say the state wants the person without bail. Does the defense have the right

[Michele Childs]: to Part C on that decision? So, on C, provision is just when the state can ask for a review.

[Barbara Rachelson]: Okay. So the state can ask for a review, but the defendant cannot ask for a review if it's diverse and they want bail?

[Michele Childs]: That would be determined at the initial hearing, and they can ask for a request that hearing to be reviewed already in a separate process.

[Barbara Rachelson]: But if the circumstances that the prosecutor is bringing to say, wait a minute, there are new circumstances. Does the defense have any voice in that conversation? No, no.

[Michele Childs]: Are you still talking about revocation? I'm guessing I'm getting a little lost while Barbara

[Barbara Rachelson]: I just wanna make sure that So if we add revoking bail. Let's see, revoking bail.

[Kim McManus]: Do you I think

[Michele Childs]: you might be talking about another provision of existing law where, let's say, if you look at like section 7,554, I'm going to read here.

[Barbara Rachelson]: So

[Michele Childs]: under existing law for review of conditions, so this is under 7,554, a person whom conditions of release are imposed and who is detained as a result of the person's inability to meet the conditions of release or who is ordered released on a condition that the person's return to custody after specified hours, or the state following material change in circumstances shall within forty eight hours following application be entitled to have the conditions reviewed by a judge and the court having original jurisdiction on the fence. So if you can't make bail, then you have an opportunity.

[Barbara Rachelson]: Or if the condition changed, but it's like I was in a car accident. Like, there's a chance for the defendant's situation to be heard by the judge as well. Yes, if it's a separate route

[Michele Childs]: around the appeal to the justice, now it's adding if they failed to revoke bail at the lower court level based on violating conditions or whatever the state is bringing against that person.

[Kim McManus]: Okay. Thank you.

[Angela Arsenault]: Sorry. Karen

[Martin LaLonde]: and then Ian, sorry. Is yours on that? Yeah. I just

[Ian Goodnow]: wanna Is the question basically I'm just trying to understand your question as well. Is your question like, okay, defendant has bail, state moves to revoke bail, Judge denies the motion to revoke bail. State goes, sweet, we passed this thing. I am going to appeal that denial. Supreme Court says, you know, you're right. Revoke bail. Does defendant still have access to

[Martin LaLonde]: Yes. So

[Ian Goodnow]: I don't know. Thank you. So, yeah, so what is the answer

[Martin LaLonde]: to that? B is that bail is benign, if the designated. But I think Barbara's point

[Ian Goodnow]: is, so what happens when the state appeals a denied motion for a revocation of bail, and the Supreme Court rules in favor of the state and retroactively revokes bail? Right. That's bail is revoked. There is I don't presume to know the answer. So theoretically, then, in this little fun triangle, it goes up to the Supreme Court. They rule in favor of the state. It goes back down. Fails to vote, then you can invoke e. They can now go back with work through judge panel and have it reviewed.

[Angela Arsenault]: Yeah, it's never ending, never ending appeals.

[Martin LaLonde]: Well, no, it wouldn't be never ending.

[Ian Goodnow]: It basically would the end.

[Barbara Rachelson]: But there is a chance that which

[Ian Goodnow]: Is that what your question was?

[Martin LaLonde]: Yeah. Yeah. Okay. That's fair. Yeah. Which would kind of sound contrary to c one, which

[Kim McManus]: Right. So there is

[Martin LaLonde]: that's ruling of a single justice in matters Not appealable. A bias. So I assume, is the state making appeals or having appeals because bail was not opposed? Is that happening? That one of those? Right. What

[Martin LaLonde]: kind of

[Martin LaLonde]: appeals are contemplated under C1? I have one deputy who says three years here, I have a de SAS person here to answer those questions. Maybe we'll ask Ken that one. That's a good idea, let's ask him. On the baby deputy.

[Michele Childs]: It could be that the state is asking for certain conditions that the state and as in the bail statute, it says that the court has to impose the least restrictive based on the information right there. So it could be that the state asks for a certain condition that the court does not grant. So if the state wants to appeal that decision because we really want this condition and think this is important for these reasons, then they can do that under existing C1. Just

[Martin LaLonde]: a final point. I think

[Ian Goodnow]: that this actually is partially think some of the testimony we heard was that there was a little bit of a It was a little unclear whether actually you could appeal a denied motion for revocation of bail under c1 already with the existing language. And I think that actually kind of speaks to it too. So it's a little unclear if that captures the same the state's kind of doing the same thing, but we're now spelling it. I guess we're spelling it out, but we're sort of saying it different. We're now saying it's not going to be non appealable anymore. It's not going be not appealable?

[Martin LaLonde]: It wouldn't be. Would be appealable. Sorry. To one justice. And I don't think that he then provides a way around that to go to food deaths out. That's not how the statute would be developed. But I will ask after Karen waves in the back of the show. Then Tom.

[Michele Childs]: I don't mind, then it's covered down, but basically it's just that there isn't a process right now to appeal a veiled reputation. That's what we're trying to Some

[Kim McManus]: people may interpret that there is,

[Michele Childs]: but we're making it very clear that there is now a process, you can do that. Okay. Great. I could boil it down to the simplest things.

[Martin LaLonde]: I'm just I'm

[Thomas Oliver]: I'm trying to think back that when people are free trial and they they're being arraigned, They're held without bail. I thought there was a a limit on the amount of time before they come back in for an evidentiary hearing to see if that's warranted.

[Martin LaLonde]: Yeah. That's it is.

[Thomas Oliver]: There is. What is that?

[Martin LaLonde]: I think that it's sixty days. Thirty or sixty. Kim, if you could identify yourself. Kim

[Kim McManus]: McManus, Tartland, States Attorneys and Sheriffs. If it's a hold without fail clause, 7553A, then you actually have a speedy trial right within sixty days. But peak hold, if you're held in arraignment for either 7553 or 7553A, a wait of evidence hearing needs to be scheduled. And I believe it's words like promptly or forthwith. So courts do it as soon as possible. It's usually, you could be too much, I think. Sometimes you need a little more time. But you have that hearing, and then the court would go through, if they're gonna hold them, you know, the factors that are holding them on making that decision.

[Thomas Oliver]: How much would the process interfere with preparation for going to trial if it's set for a speedy trial, or is this a good way for someone to try and circumvent going to trial by forcing a quick one?

[Kim McManus]: It almost so the 75 cap three a for and then it says you have the right to a trial in sixty days. It's basically if you're not released in sixty days, you don't have the right to bail at that point. So then you have a bail hearing, and nobody's ready for trial on those But types of

[Thomas Oliver]: you still have to deal with having that here. It could still be held without bail?

[Kim McManus]: Under 7553A, no. Bail has to be set after sixty days. If it's under five fifty three, we can't be held without it.

[Thomas Oliver]: Under a different section,

[Ian Goodnow]: they could be held without it. Yes. Thank you.

[Martin LaLonde]: Did you want to add anything on your

[Ian Goodnow]: stuff? No.

[Kim McManus]: No.

[Michele Childs]: Welcome back.

[Martin LaLonde]: David, if you could join us, tell us how happy you are with us trying to move this along for

[Kim McManus]: I am thrilled for the record. First of all, wonderful to see you all.

[Martin LaLonde]: Nice to see you.

[Kim McManus]: Kim McManus, Department of State Attorneys and Chips. Thank you for having us in. We do appreciate that, again, you heard us last year that this was a muddled area as far as the appeal, and we appreciated that you had put it in the miscellaneous bill. And then unfortunately, it just didn't move from there. No fault of this committee. So we do appreciate the language being in here. I do want to address one issue. Judge Zonay no doubt if he's testifying today or later, we'll touch on this. When discussing that appeal of a revocation, one very likely scenario is that the justice because when you think about the revocation statute, there's five different sections and different criteria that you have to meet. More than likely that appeal is based on the prosecutor saying the court didn't weigh the factors correctly or didn't connect the evidence with the factors. And so that Supreme Court justice who's reviewing that, if the decision is, ah, this factor wasn't weighed or they did not connect these dots, it's not necessarily that they're going to say, Okay, feel revoked. More than likely, they're going to send it back down and say, you didn't look at this, this, or this, or you considered this wrong. This needs further hearing to have the Supreme Court. So it's not automatic. It's possible. But more than likely, I would see the scenario be that it would be remanded for further hearing to have the Superior Court, again, look at the evidence and the factors with the Supreme Court's guidance on what may or may not have happened correctly. That's one thing to consider.

[Martin LaLonde]: So in considering that, I guess it's still potentially advancing scenarios where bail could be revoked. If right now the lower courts are tied to this very strict interpretation of when bail can be revoked, essentially threatening the witness, that there could be an appeal and the court could say, yeah, that scenario is something that they're missing a 100 times coming to court, whatever is sufficient to have bail revoked. I find that that's sufficient. I will remand it. They probably still won't say, yeah, your bail's revoked. They would still remand it, but they would give some guidance of what criteria may in fact survive or constitutional muster. That's the concept behind it.

[Kim McManus]: That's exactly, that's the hope and the wish that those decisions would provide more clarity around what is that threshold? When are we interfering with the pursuit of justice or the integrity of the justice system? Having just more case law on that will help define that.

[Angela Arsenault]: Angela? I think that my question about this specifically, term supported is defined, Line 16, page three. Any order so appealed shall be affirmed if it is supported by the proceedings below. And I think you're saying, more often than not, the finding was not, Okay, the existing record imports this appeal, therefore, bail is revoked. It's not likely that that's the case. More often, it might be that there's a fine like, yeah, it's kind of in there, but you need to take a look at it against Superior Court.

[Kim McManus]: Just that it's a possibility. If the Supreme Court says, no, the record supports the judge's decision that it's not revoking and they connected the dots and we're leaving it as is. That's one possibility. The other possibility is that they see that a factor was missed or the judge didn't consider something or it's like, wow, the judge really didn't factor in this. And the witness was contacted 20 times. Doesn't seem like the judge gave that enough weight. I can't speak as a Supreme Court justice, but not yet. Working on it. No time soon. That they could say, we want the court understanding x, y, and z law to reconsider, to have further hearing to so it could be so they could affirm the decision by the court or they could command it.

[Angela Arsenault]: And they can't right. So they can't there's no scenario in which single supreme court justice can just ramp the appeal and then revoke the bail?

[Kim McManus]: That's a harder scenario, and I have to admit I did not think of that scenario when thinking through this. Believe that's something I really unlikely. I don't know. I shouldn't assume that, but maybe in your experience, would be very unlikely. But that's what I wasn't sure about when I read this section. Yeah. I would leave that question to jump sign. The others?

[Kenneth Goslant]: I'm not sure

[Martin LaLonde]: if you can answer the question, but I'm guessing you can. Did the Senate pull it because of all these questions?

[Kim McManus]: I don't even think they my understanding is they I don't even think they

[Martin LaLonde]: They didn't even take our didn't have time. Okay, yeah. And then they

[Kim McManus]: thought it was more substantive than something that should be in the miscellaneous, but I don't even think they got as far as these questions.

[Thomas Oliver]: Okay, more or less

[Kim McManus]: You just wanted some testimony on that.

[Martin LaLonde]: Yeah, okay.

[Kim McManus]: The other important piece in this bill is the changing from expungement to ceiling. And this is something none of us were thinking about when we were doing the ceiling bill. A few of our very astute DSAs at our training pointed it out and were like, hey, Kim, look at this. So they noticed it. The only thing I would point out to you, and there's no issue from us again, we were not contemplating this being a change with the ceiling bill. It's just a reminder to you all that in the ceiling bill, what qualifies as a sealable misdemeanor is different than in the past. So just a reminder to go back and look at the lists. We took a number of things out. We added a number of things in. So just something to consider. But again, it's not an issue. To

[Ian Goodnow]: that point, I was thinking about that as well, that it's like a list of misdemeanors. It's not every single one. It's a list, and we expanded the list when we made ceiling. I still think that we should move forward with it like this, especially because we didn't really talk about it because we're not changing it here. But just to remember that the next line after the ceiling section that's changed so starting on line five on page two, that once you violate a court order, the $2,200 bail cap is gone. So, yeah, there are probably more misdemeanors that now have the $200 cap, but when someone violates a condition of release, now the $200 cap's gone, and they can help. So I think the expanding number of misdemeanors is an issue from my perspective.

[Kim McManus]: And precisely, it essentially washes out, since you all did change that two years ago, I think, which, again, very appreciated. And we are seeing on the ground that those failed decisions are much more nuanced now, that app was removed and really a case by case for those second and subsequent offenses. The bail is being set. So

[Kenneth Goslant]: I'm a bit confused this, and I'm not sure why, but I'm going to see on page two, line 13, a person returned to custody after specified hours. I assume that's normal language that I'm just not up to date with. What exactly does that mean?

[Kim McManus]: Give me one moment. We're in okay.

[Kenneth Goslant]: Line 13, page two.

[Martin LaLonde]: Pretty long sentence.

[Kenneth Goslant]: You've got and that was my next thing. I've never seen such a long sentence in my life.

[Martin LaLonde]: I'm not a grammar sewer. I'm

[Kim McManus]: not I'm not really sure other than

[Kenneth Goslant]: Okay, so I've stumped you there

[Kim McManus]: Yeah, a little need a minute. As far as specified hours, I'm

[Kenneth Goslant]: But let me just go one step further. What specified hours and who makes I don't know what specified hours are.

[Kim McManus]: Do you? No, that's the part that I'm unsure of there. I mean, essentially, any person has been detained by the court, they have the right to appeal that detention, but I'm not sure the clause after specified hours. I would just need to look into that.

[Kenneth Goslant]: Okay.

[Kim McManus]: It could just be older language.

[Kenneth Goslant]: Yeah. So then let's jump to three. A a single justice matters. Right? And I've seen that at a in a couple points in here. Right? And then on that's on line five. Then line 15, single justice again. Right? And then I'm going and I'm looking at the back on this on page four, line 14, a person held without bail prior to prior to trial shall be entitled to review of that determination by a panel of three Supreme Court justices. We go from one to three. Where do we get the other two? Especially when we

[Martin LaLonde]: don't have

[Kenneth Goslant]: enough supposedly justices, we're hiring more justices. How do we get the three?

[Kim McManus]: Well, and that's for holding someone without bail. So that's not having bail set and not being able to be released.

[Martin LaLonde]: Is that normal protocol?

[Kim McManus]: As far as how the Supreme Court, whether it's one justice or three justices, So the one justice appeal, essentially, you're able to get that it's scheduled faster. These appeals are heard relatively quickly because you just need to have the one person and defense attorney prosecutor, and we argue the issue. Book three justices, I think, just from a coordination, that's a different level of scrutiny that the court is supplying for the whole without it.

[Kenneth Goslant]: So my reading and trying to understand this, it looks like we're making it so the accused can get out of can do more stuff easily. We're we're we're enabling them to do more. They they have more rope to go and and do more stuff or for more room to do more stuff, bad stuff, reoffend or or however I wanna say it. Am I wrong there?

[Kim McManus]: Well, I I'm not in When holding someone before conviction, that is the ultimate restriction of liberty. So this right to an appeal to our Supreme Court for review, that is fairly sankosanct in our justice system, that they have the ability to have another layer look at that decision to hold them. So I don't think it's giving them extra.

[Martin LaLonde]: Okay. Thank you.

[Kenneth Goslant]: So just make it clear to me, please. If they don't show up, automatically they lose their bail. They they don't have that anymore, and then they're they're incarcerated?

[Kim McManus]: So do you at arraignment after, like, what what

[Kenneth Goslant]: If they don't show up for for if they don't show up for the hearing and post the bail, what exactly happens?

[Kim McManus]: So if a person is cited into court and does not appear at their arraignment, the judge would have a few options at that point. They could issue an arrest warrant. If the defense attorney said, if there's a scheduling issue, person thought they're supposed to be here on Thursday, not Tuesday, they might be rescheduled. But they could have an arrest warrant issued if somebody does not appear at their arraignment. Because you can't the person needs to be well, sorry, backing up. If someone's arrested and bail is set before their arraignment, they would need to post bail, or they would be held. So at any point, if the judge sets bail, they need to post that bail before being released. If the bail wasn't set at the time of arrest, and they are cited into court, and they show up at their arraignment, if they're not there, the arraignment cannot happen. There can be an arrest warrant and they leave, and representative Oliver can correct me, bail amount can be attached to that arrest warrant.

[Thomas Oliver]: Well, they would make a sorry. Go ahead. But they wouldn't make a a finding of probable cause or something like that first before no. Well, I mean, he's gonna have the case in front of him already. Right? Because the state's attorney is gonna bring the case forward. Hey. The person doesn't show up. The judge is already gonna have the file. If there's no probable cause, he's not gonna issue

[Martin LaLonde]: a warrant.

[Kim McManus]: Right. They would

[Martin LaLonde]: They wouldn't issue

[Kim McManus]: a yeah, probable cause. They just wouldn't have the arraignment yet.

[Thomas Oliver]: Right. So you're not gonna have the arraignment. Right. And you Okay. So if

[Kim McManus]: you interrupt

[Martin LaLonde]: Then he would,

[Thomas Oliver]: based upon whatever the charge is, determine what the bail is.

[Michele Childs]: Yeah. And if

[Kim McManus]: there was an argument for bail and the judge agreed, they would set a bail amount if that arrest warrant.

[Thomas Oliver]: This is a perfect spot to go with my question.

[Martin LaLonde]: Well, I'm gonna just let Kevin finish. Okay.

[Kenneth Goslant]: So Hopefully, I'll lead me into it. So is there a good possibility if this person doesn't show up for this hearing, Aren't we just going and just adding to the backlog because they'll just keep doing this and doing this and doing this? Isn't that already a proven factor in the backlog? Because I I don't think we prosecuted enough.

[Kim McManus]: Like, they're not showing up for the revocation? Yes.

[Kenneth Goslant]: I mean I mean, it took so so what I'm saying is that $200 really isn't enough. So what's it doing?

[Kim McManus]: Well, that's separate. The $200 is that cap for the misdemeanors, for the qualifying misdemeanors. So that's not for every misdemeanor. And if we've gotten to the point where we're having a motion to revoke bail, so those two things are separate. I mean, it could be corollary, but if we're asking to revoke bail, somebody has bail set and their behavior while out on bail is violating one of those five subsections, and I can pull that statute up. I don't have it right in front of me. Then they do need to show up for that bail hearing oh, thank you. Appreciate that for the judge to revoke their bail. Yes, essentially, would need to show up for that. The judge could decide to set a different amount of bail at hearing if they didn't show up. There would be other options, but eventually, yes, they have to have it revoked. They would need to be at that hearing.

[Kenneth Goslant]: Okay, for now. Thank you.

[Thomas Oliver]: Not that I wanna make a change or anything. What would I I'm I'm sort of thinking out loud, I guess.

[Ian Goodnow]: Not sure how to put it.

[Thomas Oliver]: If someone is cited on one of these particular cases where you can only set a $200 bail, and they don't show for their particular hearing, could that potentially affect the ability to remove that $200 cap and change it to something else? Right. At that point. Right. It's not conditions yet. No. I agree. It or or failure this is an initial failure Mhmm. Versus when conditions are set. But the judge Right. I see no. See that as a failure to appear in in his brain, his or her brain to figure out where they're going to set bail, would it still have to remain $200 Right.

[Martin LaLonde]: I understand what you're saying. I don't know if Kim wants to weigh in on that. Is that a problem that needs to be resolved, I guess, is the first.

[Kim McManus]: I think it's a very interesting point, and that language of that $200 limit would need to be modified to take into account that scenario failing to show for your initial hearing on those offenses.

[Martin LaLonde]: Well, let me ask you, maybe don't have the answer list, but if you could find out. So is that the scenario that we're seeing? I mean, could ask Tom to testify, but he's here. I'll just ask you the question. Is that the scenario that we're seeing where it's just the first hearing, the arraignment that people are not showing up? Or is it after arraignment and subsequent hearings?

[Kim McManus]: It's both. I wouldn't be able to pull the exact numbers right up for you at this moment, but it's failures to appear for both, either the initial hearing or at various points in the case.

[Ian Goodnow]: Just to Tom's point, I think the system works the way it is now. You cite something Sorry? I think that in the specific situation that Tom's identifying with when someone doesn't appear for arraignment, I think the system in place works as it is. Because you cite somebody out for retail theft. They so no bail. Alright? They were charged. The guy filled out the thing. They gave him the citation. Come to court on x date. No bail. That date comes, defendant no shows. Court goes to the prosecutor and says, alright. What do you wanna do, DSA? And they go, well, your honor, looking at their record, they have nine failures to appear in all their other dockets. I think in this case, we request a $200 bail be set and a site be sent. And she or he, the judge looks at it and says, I think you're right, DSA. Great. We're going to issue a $200 arrest warrant for defendant based on their failure to appear from the arraignment. And so, basically, you're giving them the chance to show up without the bail, and then they didn't show up. Now you can ask for the bail.

[Martin LaLonde]: Right. But I guess the question is whether the $200, does it matter if it's $300 or 500 or 1,000? Well, we don't know if

[Ian Goodnow]: the $200 is sufficient yet because they didn't have it initially for the psych. So they said,

[Martin LaLonde]: I had no bail. So they could show up, pay the $200 and then continue to no show, and then

[Kim McManus]: But at that point, then the limit no longer kicks in. Or no, they would need to offend.

[Thomas Oliver]: There would be no limit technically in your scenario if they wanted, because they've already violated the court order nine times.

[Ian Goodnow]: No, I was thinking about their record. They're like

[Thomas Oliver]: Oh, okay.

[Ian Goodnow]: This I think

[Martin LaLonde]: when considered Okay.

[Thomas Oliver]: But I mean, if they had pending cases, then they would be

[Ian Goodnow]: Oh, yeah. And that's all.

[Thomas Oliver]: And that's probably the case.

[Ian Goodnow]: I think your point, though, I guess if they posted bail and then they basically no show it again.

[Martin LaLonde]: Yeah. So so if they don't show up for an arrangement, right now, they the warrant can go out with a $200 Correct. Yeah. So is that not working?

[Thomas Oliver]: Well, what I'm saying is if they don't show up, can it remove that $200?

[Ian Goodnow]: Yeah. But but I

[Martin LaLonde]: I thought your issue Because they've

[Thomas Oliver]: just shown that they can't show up.

[Martin LaLonde]: But they didn't have $200 riding on No. No.

[Thomas Oliver]: No. Yeah. So I give you a citation on something that's could yeah. The the fact that it stays at $200 and well, I guess it would extrapolate out because they're violating conditions at that point.

[Ian Goodnow]: I thought the the mean, the

[Thomas Oliver]: whole point to bring them back or get them to show up, you you know, is is creating more exposure, I guess, because you're fearing they're not gonna show up. They're showing you you're not gonna show up, and they know they're gonna get a $200 bail if they don't show up. But if they ignore it.

[Martin LaLonde]: So, but I thought the issue was more that the courts are just citing them to a future date.

[Thomas Oliver]: That that's a whole different.

[Martin LaLonde]: That seems to be the bigger issue. That's a much bigger issue. And then because it seems to me that for a lot of these people, that $200 bail is gonna be really hard to meet. Some are. Yeah. It's gonna

[Thomas Oliver]: be easy, but $200.200 dollars bail can be unfair to some of these people because they only have 25¢.

[Kenneth Goslant]: So it just seems

[Martin LaLonde]: to me that that that the $200 bail part is the less important issue on the no shows than than the Right. Continuing to cite them to future. I think

[Thomas Oliver]: we I'm just wondering if failing to appear on on a citation on the initial hearing could affect your bail being set. That's a failure to appear on your record, I guess. So I guess they would then be able to right? I mean, if you don't choke for a hearing.

[Kim McManus]: Yes. I believe that the court has to enter it. That's a failure

[Thomas Oliver]: The to warrant would show that you've done that in the past. Yeah. And if it was still pending, they could hold it against you.

[Martin LaLonde]: So if if you have language, you want us to No.

[Thomas Oliver]: I think we're okay. I I So Ian?

[Martin LaLonde]: I have a separate question, which hopefully isn't gonna blow this up either. Yeah, last minute, we'll use more fun. So the Supreme Court has established a standard right now for whether a veil could be revoked, and that's a pretty high standard. What are the chances of one justice being willing to say, oh no, we're gonna modify that standard and we're going to take into account some other things besides just witness tampering. Are we set up to just have the justice say, well, I'm following what Supreme Court precedent is because I'm only one justice and this was voted on by five justices. Do you know what I mean on that? I mean, we're studying we're just like, part of the reason we wanna do this is to try to advance the law with the facts and case, and that means the Supreme Court kind of modifying what they've done before to take into account these additional factual scenario. And here, is that really realistic that one justice is gonna do something? That make sense, what I'm saying?

[Kim McManus]: I believe so. So I think a two part answer. One, the one justice is going to be interpreting the law as it is, not creating additional standards so much as interpreting what our current standards are, which is where we're struggling right now of knowing the parameters. When attorneys are citing precedent, a single justice decision versus a full court decision is weighted differently. And this is where I will have to get back to you. Knew with and Evan Meenen would be the person to have in chair right now, our appellate attorney. But for regular appeals, you can have it's a three panel. Or if it's an issue that hasn't been reviewed before, a novel issue, or the justices decide it bumps up to a level that they think a full court is needed, there is that ability.

[Martin LaLonde]: So the single justice could decide that, hey, I need to have the whole court.

[Kim McManus]: Well, that's what I would just want to double check. And I haven't read this closely. I think

[Ian Goodnow]: So just I just want to put into the conversation on line thirteen and fourteen of page three. A single justice in the Supreme Court may hear the matter or the justice's discretion refer to the entire Supreme Court. Okay.

[Kim McManus]: Thank you. I knew there was some The language.

[Ian Goodnow]: I was reading the bills.

[Kim McManus]: I knew there was a valve there. Again, if the issue is bigger, we can move that. But it

[Ian Goodnow]: is still a good question. Is this going to actually conflict?

[Martin LaLonde]: I can understand if it's all the justices looking at it, justices have different viewpoints over the years. And stare decisis, I've heard, is not really a cool thing.

[Kim McManus]: Well, again, we'd like to get into changing the definitions here, really digging in. Definitely

[Martin LaLonde]: going to

[Kim McManus]: do that.

[Martin LaLonde]: What the briefs that everyone's going to be writing on itself?

[Kim McManus]: Well, to that concern, if we run into suddenly having all sorts of various single justice opinions, we'll But deal with we would like to just be able to take the friction away that we can appeal these decisions and at least ask the questions. Let's start there.

[Martin LaLonde]: Any other questions for you? So Judge Zoning is not available this afternoon, but I believe he's available at 09:30 tomorrow. Did we ever get that confirmed? I've got that expert. Yeah. I believe he's available at 09:30. So we'll hear from him. Yes, Ian? If we're going to take a little more testimony on this, would it be possible to just who

[Ian Goodnow]: is here maybe for a minute from Meenen? Kevin? Yeah. Is that in Meenen? Would that be I'm just wondering if the guy who's going to do these appeals

[Martin LaLonde]: They said they're best. Actually, maybe has he looked at this?

[Kim McManus]: Well, he's the one who raised the issue last year. Just, hey, remind everyone it's not clear that we can appeal these. So he's the one who flagged the issue. And to go back to the correlation of the case law that we have as far as bail and appealing bail, read those single justice decisions. And then we use them in our arguments in court when we're arguing bail. So these single justice decisions, they do matter. And we would use them again then in future motion to revoke, being able to use them depending on the decision.

[Martin LaLonde]: Do others need to hear from Evan? And I forgot.

[Ian Goodnow]: I didn't realize that he was the reason that this is even so that's great. So

[Barbara Rachelson]: it's interesting that you said that Evan said remind people that we have the right to do this. That makes it sound more like a training issue than a change the law issue.

[Kim McManus]: No, there was a discussion here last spring, and then I was emailing Evan, he was like, You know, it isn't actually clear that prosecutors can appeal these decisions, the revocation decision. And so that's why we brought it up last year. So not that we're not yes. It is a training

[Barbara Rachelson]: issue. Like, certain state attorneys using it more? It sounds like. Right? Like, some state attorneys are using it more than the government?

[Kim McManus]: I mean, not recently. No. Okay. Folks have not been appealing.

[Michele Childs]: It's been a while.

[Barbara Rachelson]: Do you have no idea what volume the pain freezes

[Kim McManus]: might create? I don't. And again, there's a practicality of how much bandwidth the attorneys for this motion practice, but there are cases where rep felt very strongly about that revocation and it was denied and they would feel an appeal is appropriate. And then some, they will not, same with failed decisions. So it would very much depend, but anything more than zero would hopefully give us some guidance. And again, maybe encourage it one way or the other.

[Martin LaLonde]: Alright. Anything else? Alright. So let's take a five minute break. I think we can have Jen Carvey here a little bit earlier than thirty to review the instance of amendment to page 28 and

[Kim McManus]: then

[Martin LaLonde]: remind us what page

[Martin LaLonde]: 20