State and federal Constitutions make it illegal to keep someone in pretrial custody just because they cannot afford to pay for bail. Yet, for many, many years — at least all that I’ve been practicing criminal defense — instead of granting pretrial release, courts have regularly set bail such that a large number of people are unable to be released until their cases are over. And, of course, if they are convicted, then they aren’t necessarily going to be released even then.

But, hey, the judge-built incarceration-industrial complex — which in 2016 was estimated to be 6% of U.S. GDP, or approximately one-trillion (yes, trillion!) dollars — isn’t going to feed itself.

Filing Bail Motions is Now De Rigeur

Most judges will not follow the law on bail, so filing bail motions — sometimes called Humphrey motions — is now de rigeur. Some just go through the motions — no pun intended — knowing the judge will deny anyway, and they don’t have time to file writs.

Over the last year, I filed a number of motions to try to get people out on “affordable bail,” as required by the law. Too often, judges respond to this by simply ignoring the law. And, so, I filed writs.

I’ve won writs, only to be sent back to the same judges who say, “Sorry. We don’t like this ‘new’ old law regarding the fundamental basis of freedom.”

Why the Law Doesn’t Work

Most judges are former prosecutors, who have been unable to shed their prosecutorial philosophy even after donning a robe that comes with new responsibilities, and new requirements. The situation is not helped by our incestuous bench: judges actually married to other judges, or to prosecutors, or with children who work at the DA’s office. (And it does little good to think about disqualifying them on that basis, as there are too many of them, and the bias permeates the entire bench, anyway.)

Nor are things improved by adding a tiny smattering of defense attorneys to the bench. If they’re seen as favorable to the defense — even when just following the law — prosecutors will make motions to disqualify them. They know this, and usually try to prove that they’re just as antagonistic to defendants and defense attorneys as any “real” prosecutor in a black robe.

To add insult to injury, although many judges are initially appointed by the Governor, after that, they have to run for re-election. Who wants to be the judge who pissed off the Law & Order crowd?

So, make no mistake: whatever the driver — whether ideology, or fear of being fired — the number one reason our courts are lawless is that the judges whose job it is to uphold the law refuse to do so.

Freedom is the Default

The first proof of this is that freedom from incarceration is supposed to be the default position. In other words, the courts are to choose freedom first. The California Supreme Court, citing the United States Supreme Court has stated:

[I]t remains true that in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.

In re Humphrey, 11 Cal.5th 135, 154 (2021), citing United States v. Salerno, 481 U.S. 739, 751 (1987); see Stack v Boyle, 342 U.S. 1, 8 (1951).

In People v. Turner, 39 Cal.App.3d 682, 684 (1974), an appellate court said the Constitution makes bail “a matter of right.” In other words, everyone has a right to bail. But “only those cases in which the guilt of the party had not already been judicially ascertained.” Id.

Well, okay. That means, at least, “prior to receiving any actual evidence.” Prior to a trial, the court went on to point out, “the prisoner” stands “not guilty, supported with all the presumptions of innocence with which the law delights to surround him.”

In fact, the United States Supreme Court has pointed out that:

Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

Stack v. Boyle, 342 U.S. 1, 4 (1951).

Though, under some conditions, deprivation of this fundamental constitutional right may be permitted notwithstanding the stated abhorrence of such an idea to a free society, the California Supreme Court held that it “is permissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interest.” Humphrey, 11 Cal.5th at 151-152 (emphasis added).

In the hands of enrobed prosecutors, the carefully-limited exception of pretrial detention, however, swallows the norm of freedom. And a lot of the reason for that is the lie judges tell themselves, accused people, and the public-at-large.

The Lie: Guilt is Presumed

I forgive you for finding it strange — I find it strange, too — that judges frequently tell themselves, and the public, this lie: “For purposes of a bail hearing, we must assume the defendant is guilty of the charges.”

I cannot tell you how many times I have heard judges say this during a bail hearing. And, yet, it is completely false. Any judge who says it should be required to go back to law school. He, or she, should have his, or her, prosecutor-in-a-black-robe license taken away, and never be allowed to drive a court hearing again.

The lie is based on a set of cases from the late 1800s and early 1900s. These include In re Horiuchi, 105 Cal. App. 714, 715 (Dist. Ct. App. 1930)(presumption after indictment); Ex parte Duncan, 53 Cal. 410, 411 (1879)(same); Ex parte Ryan, 44 Cal. 555, 558 (1872); and Ex parte Ruef, 7 Cal. App. 750, 752 (Dist. Ct. App. 1908)(presumption of guilt after indictment for bail purposes remained true even after two trials failed to result in conviction).

Notice anything about the parenthetical comments? Every one of them mentions a presumption after indictment. An indictment is where a grand jury hears actual evidence, and then determines if there is probable cause to believe the defendant is guilty.

This requirement of actual evidence fits with what the Constitution requires. It’s why for those cases involving indictments, guilt could be presumed for purposes of a bail hearing.

What Probable Cause?

Pretrial detention requires, as a starting point — and as a starting point only — probable cause to believe someone has committed a crime.

In California, there are two ways to determine whether there is “probable cause” to believe someone committed a crime. Both involve evidence. Each has flaws. But one, or the other, is a legal requirement before a court can presume guilt for purposes of setting bail. And, as we will see, even that presumption has limitations.

Grand Jury Indictments

“Back in the day,” and once in a blue moon today, a grand jury would hear evidence in state felony cases. After hearing the evidence, the grand jury would determine whether there was enough evidence to provide probable cause to believe a defendant may have committed the crime of which prosecutors accused him.

Grand juries have one major flaw: there is no cross-examination. Prosecutors put on evidence — perhaps documents, perhaps testimony, perhaps some other form of evidence — but the evidence is untested. There is only the dwindling degree of ethics among prosecutors that controls how biased the story told jurors is.

I have personally never had, nor seen, a case that involved a grand jury. That’s because that is not the normal route state criminal cases follow today. There are still grand juries. I know because I did talk to someone who was on one once. But I don’t know exactly what they do. I’m sure it’s possible some criminal cases may still involve grand juries. I just don’t know of any.

And, by the way, federal cases are different. The Fifth Amendment of the Constitution requires an indictment by a grand jury, so federal cases involve indictments. That’s also why federal case law pertaining to pretrial detention is less helpful in state court.

Preliminary Hearings & Probable Cause

Today, as I mentioned, we really don’t go that route in California state court cases. The usual procedure today is that a prosecutor files a criminal complaint. Almost always, this is an “unverified” complaint. It is based just on a prosecutor reading a police report, and deciding that someone should be charged. There is no “proof” involved. Just words on paper which may, or may not, be true. Although the prosecutor — including those in black robes — may believe these words on paper constitute probable cause, they do not.

This is why, in those cases where the prosecutor files a criminal complaint, we hold “preliminary hearings.” Another name for a preliminary hearing is “probable cause hearing.” Although Proposition 115 has greatly watered things down, preliminary hearings still involve presenting evidence — or at least pseudo-evidence; something similar to actual evidence — and an opportunity to cross-examine the person presenting that-which-passes-for-evidence.

It is also why modern state court judges are wrong to assume guilt at bail hearings, where currently not even pseudo-evidence is presented.

Probable Cause is Not Enough

The Supreme Court of the United States — which has not yet been overruled on this point by the Supreme Catholic Church of the United States — has said probable cause is not enough to deny pretrial release.

The Government must first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the Government must convince a neutral decisionmaker [sic] by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.

Salerno, 481 U.S. at 750 (emphasis added)

Otherwise,

When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat.

— — Salerno, 481 U.S. at 751

The California Constitution states nearly-identical requirements for felony offenses. It requires a substantial likelihood of great bodily harm to others. Cal. Const., Art. I § 12, subsections (b) & (c).

Nor is it enough for a court to speak magic words. Saying “the facts are evident” or “the presumption is great” is insufficient to justify denying pretrial release. Clark v. Superior Court, 11 Cal.App.4th 455, 458–459 (1992).

Clark, by the way, was a capital case: that is, a case where death is a possible punishment. Even there, the court required actual evidence, and not just conclusory statements. Another case where the court required a bond hearing is In re Bright, 13 Cal.App.4th 1664 (1993), which was a murder case. (In that case, however, the court denied bail based on the evident facts and great presumption, determined at an evidentiary hearing, showing the crime committed.)

Assuming, or Presuming Guilt, without Evidence is Unlawful

Currently, in California state courts, we don’t get the full-blown adversarial hearing, or the neutral decision-maker.

But, as a starting point — a minimum threshold — the law still requires probable cause. And finding probable cause requires evidence.

Criminal Charges Themselves Are Not Evidence

The charges against a person are not evidence. If the charges alone were sufficient evidence, the criminal complaint could count as evidence.

But a criminal complaint is not evidence. Sheard v. Superior Court, 40 Cal.App.3d 207, 212 (1974).

This is one more reason why presuming guilt of the charges is pointless: that someone has been charged is not evidence. (Judges even tell juries this during trials!)

Every one of the cases mentioned above where the courts held that guilt had to be presumed for bail hearings — all those cases from the late 1800s and early 1900s — involved actual evidence which was heard by a grand jury. And virtually every one of the cases with bail hearings being heard in state courts today do not involve evidence.

State bail hearings primarily involve defense attorneys trying to remind prosecutors in black robes what the Constitution, and state case law, say about the right to bail. This is followed by not-yet-enrobed prosecutors reading portions of police reports, and assuring the enrobed prosecutor that releasing the defendant is the Wrong Thing to Do™.

Statements by a Prosecutor Are Not Evidence

But statements made by any attorney — including the prosecutor, robed, or not — are not evidence. People v. Arnold, 199 Cal. 471, 486 (1926). There’s even a jury instruction that says so! See People v. Hall, 82 Cal.App.4th 813, 817 (2000); People v. Pitts, 223 Cal. App. 3d 606, 696 (1990).

The California Constitution requires release from custody unless there is clear and convincing evidence that great bodily harm is substantially likely to result if the person is released.

A person shall be released on bail by sufficient sureties, except for,

(a) Capital crimes when the facts are evident or the presumption great;

(b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others; or

(c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.

— California Constitution, article I, section 12

There’s a lot to unpack there. But judges merely thumb their noses at it; they never unpack any of it in a bail hearing.

Preliminarily, Humphrey Has Made Things Worse

Above, I alluded to the Humphrey case. As this post is already heading (as too many of my posts do) in the “long” direction, I won’t provide a lot of detail. But the California Supreme Court’s Humphrey ruling intended to reinforce the constitutional idea that freedom is a default position. And that, in fact, you can’t override that default position by requiring bail that poor people cannot pay.

Unfortunately, beyond reinforcing that idea, the case provided such wishy-washy advice on how judges could decide on pretrial release that the end result is some incarceration-industrial-complex-oriented judges (e.g., prosecutors in black robes) started using Humphrey as a reason to deny any release.

In other words, such “judges” went from setting bail too high for poor people to saying some people — again, mostly poor people — can’t have any bail at all!

In effect, they completely turned Humphrey on its head.

Bill-of-Rights-Oriented Judges

I don’t really know of a way to fix this.

[Now-former Governor Jerry Brown] says that “using and manipulating the fear of crime has allowed one segment of our society,” law enforcement, to be overrepresented on the bench.

— Terry Carter, “California Gov. Jerry Brown appoints a high percentage of former public defenders to the bench” (February 29, 2016)

And, as Michael Ogul, a former President of the California Public Defenders Association, noted,

“Most district attorney judges that I’ve experienced are unable to divorce themselves from their background once they become a judge,” Ogul says. “They are still trying to help the prosecution, they are still trying to move the case towards conviction or towards a harsher punishment.”

— Terry Carter, “California Gov. Jerry Brown appoints a high percentage of former public defenders to the bench” (February 29, 2016)

If I may channel Michael Ogul for a second here, we do not need more prosecutors on the bench, who will unfailingly support and aid the government in the violation of the constitutional rights of we, the actual fucking People! We need more judges who care about the fucking Constitution, and protecting the fucking rights of people accused by the fucking government of crimes.

Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants are in fact guilty, or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who actively assist the prosecution and handicap the defense,  we need judges who, at the very least, allow the adversarial system to play out.

The truth is these so-called defense-oriented judges are not defense-oriented at all, but Bill of Rights-oriented. We should call them Bill of Rights judges. Instead of allowing these judges to be maligned and passed over for promotion, we should laud them and urge their advancement. And we should demand that there be more Bill of Rights judges.

— Abe Smith, Defense-Oriented Judges, 32 Hofstra L. Rev. 1483, 1485-1486 (2004).

Unless and until that happens, in California — contrary to the California Supremes’ declaration in Humphrey, citing the United States Supremes in Salerno, that “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception” — pretrial detention, denied, will be the norm, and liberty will be the carefully limited exception.


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