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due process winner of 21
regional Emmy Awards including the 2010 New York me.
for our coverage of voting rights and the 2012 mid-atlantic am
is for outstanding interview special and outstanding discussion series
due process is a presentation Rutgers School of Law Newark
and the Edward J blasting School of Planning and public policy
studio facilities provided by the Rutgers
I'm TV studio Division of Continuing Studies
what does it mean to be presumed innocent if you've already done three
years have a jail sentence
before you've even gone before a jury it's what can happen if like forty
percent about jail population
you can't make bail most locked up for nonviolent crimes
most black and brown in Pooler they're there because they can't pay
to get out so is justice based on what you did
but what you've got they on this edition
have due process
major funding for due process provided by the fund for New Jersey
supporting inform citizens for an affective
democracy
you
you're arrested charged with the crime brought to court
so what happens next well that probably depends on how much is in your pocket or
your bank account
if you can't make bail matter how small be placed in a cell pending trial
and you might be there for years I'm really impressed and I'm Sandra King and
on this edition have due process
an unflinching look at the New Jersey way on bail
it's a far cry from what you see on law and order
raising questions about class and race and what's done
every day in the name of justice mister Vera please step forward
he plead guilty yes
weren't you guilty and no I wasn't guilty
so why would somebody plead guilty who was Inc
might i said i just want to get up would you want to continue with the sentencing
today
because this is a negotiated plea agreement you understand that
that was your only way out here the only way
out after almost a year locked up
year
your mind XD
and in jails across New Jersey and the nation's
that stretch before conviction or even indictment
is not unusual there's a huge problem with the bell system that there are
thousands millions of people nationally
who are being held because they can't afford often small amounts of bail
for Victor Rivera freedom could have been bought with
25,000 bondar 2500 cash he couldn't come up with 2500 cash
that's what kept him incarcerated for eleven months twenty-five hundred
dollars
if he had been somebody with access to
just a couple thousand dollars it would be a different story
the purpose in New Jersey is to ensure your presence at trial
but what we've in fact and is replaced it with the system that's so heavily
relies on money bail
that keeps poor people in jail pre-trial and functional effect is that it
extracts guilty pleas from innocent people
on a routine basis he would wait to go to trial how long do you think you would
have been there
15 16 months good luck mister there someone from probation will be up
charged with verbally threatening a Cup Rivera's guilty plea lead to
time served and release when they come up
on to court and they have that much time in them an offer they can go home
it's art offer to refuse it we had to plea
we could sit there for five years we could sit there for five years
without a trial without a draft Ricky
Robinson and two codefendants insisting they were innocent a breaking into an
abandoned Gary
but unable to make bail held out for 21 months in the Union County Jail
their trial repeatedly delayed before they
finally gave up ok and said guilty
so the key cool have with five thousand dollars in a bondsman
gotten out guess five thousand dollars was not
something he could make you could not he was at the gym a
he is very poor person how typical is that if your client's
that's very typical a most my clients are very very poor
most black or Latino most on able to make
even small amounts bail forty percent of the people who are in our jails are
there strictly because they cannot afford the of the nominal amounts a bail
that they've been given and forty percent is no
guess it's based on a study at new jersey's jails
commissioned by the drug policy Alliance showing who's in
for how long and why they're there
the average length of stay its 10 months all because that person couldn't afford
a few hundred dollars in Vail
you say that's discrimination its
discrimination because whether or not you were released
in New Jersey is based on resources and not on your wrist to the community
and even the governor thinks risk not resources
should be the standard so I ask you to approve my pillar for packets
which would near the federal system it would keep offenders with a history of
violence
who are dangerous communities in jail at all the time a trial
it's every leasing them back into society to prey on the pop
the chief justices weighed into naming a committee to study the problem
backlogged cases and less then speedy justice
citing the drug policy Alliance survey
we need to consider the study in light of the issue
a speedy trial in pre-trial delay because what it means
is this some inmates who are unable to make even
modest sales are held in custody pre-trial potentially for extended
periods of time
and that's not a healthy practice for a system
justice so bail reform advocates say
that's more official support for change and they've
ever had before but they would go much further
some states have done the right thing and they've moved away from money back
and it looked at other conditions that might insure defendant's presence
so maybe it's for firing drug treatment maybe you have to report once a week to
a probation officer
maybe you have to wear an ankle bracelet and have real
serious speedy trial protections that inshore
they except in the most extreme circumstances you don't have defendants
were incarcerated pre-trial
for years so these 11 months I think you're there
served in the Essex County Jail
had nothing to do with whether he was a risk to society
Nana nothing to do whether he was a danger to the community
nothing to do with during his appearance to court either which is really what
bales for
so what was it about it was about not having enough money
not being able to come up with twenty five hundred dollars exactly
so was Victor Rivera actually guilty
I have no idea but whether he was or not his inability to make bail
and his guilty plea where inextricably convicted
is that something that should concern even upset
have faith in a fair and just system for what I expect will be some very
different answers we turn to two men
from to different sizes that system John Molinelli is Bergen County prosecutor
and former president
the state prosecutors Association joke or has been doing public defender work
for 27 years
for the last to as new jersey's chief P welcome both
John let me start with you we've seen the Chief Justice set up a committee
which is going to have a number of
criminal justice take all these on it he cited in part to drug policy Alliance
says report as a reason for it are you convinced that there is a serious
problem in bail in New Jersey and we need to make some structural changes to
I don't know whether I can answer that from some demos in question you know
a systemically and whether have an answer for that
as a prosecutor
I don't wanna see someone plead guilty just because that's gonna get them out
of jail
%uh I think there are other ways around it i mean you know what is the
likelihood that he is going to flee
that really is the standard so someone that has already been in jail
a time equal to what they would get if they were convicted to me
would be a very strong basis for defense attorney to make an application
to have his bail change from twenty-five hundred dollars to a reconnaissance bill
because he's not likely gonna run any break break it down into the practical
aspects as you will
is there something about having people in jail
for a nominal amounts of money when the logic of that amount of money keeping
them
coming back to court seems a week re up of course and I i can't disagree with
that
I mean a for twenty five hundred dollars based upon the number of people I read
the report
I was at the the State Bar addressed by Chief Justice ratner and as a prosecutor
I
there there is always in need to reform particularly when you have individuals
that
might be innocent %uh and extending their
their time in jail waiting to be heard but it deals with so many issues
ray that I'm not sure that is one answered you know yes there could be
more criminal judges
and they could be more resources available to get them to speedy trial
that they deserve
but we all know it to stable that just anymore judges into the process is not
like that can happen in today's economy
so I don't I can sit here is a prosecutor but I do know that
um it's based upon and should always be based upon
is the likelihood that they will appear and someone
I wanna get back is anyone get back into it but you know it should be a factor
is that if it if a judge is set twenty-five hundred dollars
bail it's not a large now so all probability the person
is going to appear is likely to appear soldier even her friend the prosecutor
says there's something wrong with the system it would appear to be so clearly
flawed and yet here we are
stuck with the system that we have had
for effort and how do we
get rid of it how did we get here well I think
historically the notion is been I underlying all this is that too
if the person has money on the line here she's gonna be more likely to go back to
court
but I think the reality is that that's a fiction
I can't tell you how many times over the years we have clients in the public
defender's office
unable to make five hundred dollars bail thousand dollar bail
2009 bail and judges long might be then-wife
to in detention wealth in this state
in almost every county you sit in jail for at least force
26 27 sometimes longer months just before you get indicted
much less before you get to trial some other statistics in the drug Alliance
study work were alarming in terms of the like the time that people see engine on
the state to be but I think the average is 10 months and that includes people
who are in for years
what the 10 months that's not to go to trial maybe that's too when you
case gets disposed of but we have clients right now all over the states in
in jail
you know 14 16 18 20 months without a trial
the longest you've ever seen well probably
34 years without a trial but it's the norm
in most counties that you sit in jail for at least a year
and up to two years before you go to trial that is that is standard
and and the worst thing about it is that basically people are serving their time
before the been convicted
you get arrested you charge you have a plea to guilty have been found guilty by
a jury
so you sit in jail so so long that you've done the time
before you've even been convicted and any examples in any
in the open era are that's what that's routine in court in the state
that is routine Jul let me know do I think you want to start to break the
problem
first point is a course that a person in jail wasn't right is by definition
not guilty see you have the specter for not guilty person injury jail
maybe other circles as for the only thing keeping them is that report
secondly you have the problem of people feeling pressure
to plead guilty after a certain amount of time in jail and
that's offensive if they're not guilty but maybe even offensive if they're
guilty because
even a person who might be called really maybe did is entitled that make the
decision to plead or not
three of course you know from being in jail so
either at different solutions to different part the problems that we do
try I think there are
um I'm I'm very
reluctant to to latch onto a principal
that bail should be tied with one's ability to pazo
I'm concerned about that I recognize it as a problem I recognize you got rather
small bail amounts
but when we begin to look at things legal for the that mean you're open to
the possibility of having a system where there's
less and less reliance on money as a guarantor overturning I'm
I would not be posed to alternatives to bail
that are based upon bracelets that are based upon other means to ensure
that the accused reports the court because that really is what we're
talking about
what I don't agree with and I don't have to disagree with joe I I E
when you have a case where somebody has been in jail for for a time that even
upon conviction they would probably
be in a time serve situation %uh if
if a defense attorney brings an application to change that bill from
twenty-five hundred dollars
to our walk with their released or are you in your own on the wrong response
right um I don't know whether our office would oppose
because the person now is not likely going to flee
a and and not attend the trial that even upon conviction they probably will not
serve another day
not stop at issue are you finding that you around the state as you approach
the limits of what a person would probably get if they got completely
its depending on a judge decided to release that person that's that's what
doesn't happen
and and consciously or unconsciously judges driven by the need to resolve
cases
have an incentive to have people in jail who are going to plea guilty because
they've done the time
I just don't know what you just that is pretty perfect that in a state where
there is no history really have corrupt judges
there are judges who nonetheless are willing to let time alone
clear the cacld well otherwise they would release people who shouldn't be in
jail by either lowering their bail to something they can make
or by releasing them on their own recognizance with some conditions
attached
and they don't do that the coercion question is
a huge one and I think
with apologies for asking you the toughest question
how do you square the fact that you know that people who would not plead guilty
if they were out are willing to plead guilty
walk out with time served and say okay
at least out in fear because you're people apart ive
that negotiated plea
knowing that in fact the guilty plea may not be exactly
yet caution okay the last part you just ended
changes my answer before you enter that
and that that when the huge is headed makes it
at the million dollar question that you don't have to question
it I don't doubt it happens but I would say that it's an individual
is gonna come into a court and plead guilty and two minutes ago
to counsel they just told us that they're really not guilty but there
pleading guilty
a I would hope that no one in my office takes that plea yet but the lawyers and
going to say
my class not guilty but he's willing to play he's gonna say okay you know will
pleading
in exchange for I hate it when the reason why we don't want that is because
three months down the road you going to post but if you know what you have and
how do you square that
with your own sense of justice um its
it's easy you don't take that plea you don't be because
for a lot of reasons one we have an oath we don't take a plea that we know the
person
is really claiming to be not guilty to
its gonna come back its its gonna come back on a PC or a post-conviction relief
motion
they're gonna say I wanna trial I chances are it won't come back
statistically it's not going to just wasn't just the hard case T which is
we alt sitting at this table know that there have been people who are under the
pressure of time have pled guilty to cross which they were guilty
you might have been able to easily deterred or detected which is maybe more
the point
the question is this is a system that will produce those kinds of assault
and even though we can't site jot and tittle we know that happens
it it does I'm not gonna deny the fact that it does
its it's a consequences
what joe was just suggesting is there there is and the
to dispose of cases and there are times when
we know that particular plea offer is made based upon the fact that a person
is already served
a a period of time I'm not gonna denies if that does not happen
it is not a conscious effort by a prosecutor to take advantage of this
parish
are you then prepared to join Joe on the barricades and say
we need to fight this this this is not just well it depends on where Joe is on
the barricade
there are areas where I do not think
that judges should begin to consider one's ability to pay in setting bail
%uh on the other hand as a prosecutor I would not oppose
alternatives to incarceration pre-trial
where we or I should say I is a prosecutor believes that this person
is not a considerable flight risk and again and I
netted join the governing here when you deal with violent offenses
the stakes become substantially different I although
more likely an individual that in jail for a violent offense
is a high flight risk so it all comes back to that
issue what is the person like they're gonna do when they're released ticket
Joe we just had a a case here in New Jersey
a guy who supposedly
allegedly I hired somebody wanted to hire somebody to kill his business
partner
a torture I'm on the way and maybe kill his wife
that I got out at six hundred thousand dollars bail by
post in this regard well so
even in the most heinous accusation
we do offer bail that's how the system works in New Jersey
right and my point is I've my thinking on this is changed dramatically over
time
because my feeling is we need to have a more intellectually honest process by
which we decide who should be released pre-trial
who should if you were to say to me that this gentleman
and let's assume to add to the fact that he had some prior criminal record top at
the charges in this case
if you were to say to me that the system is going to make a decision that this
person should be detained pre-trial because he's a violent threat to the
community
I could live with that if you're not going to have my clients from the public
defender's office sitting in jail
on 500-1000 fifteen hundred dollar bills
I can live with that got away with the Gulf so you could says
you could live with the governor's proposal which seems to include the
notion love
maybe no bail in violin cases um if they're worth it was tied to an ocean
love
non monetary consideration I actually I actually have come to believe
that some form of what is known as preventive detention in other words a
judge for in someone to tame pre-trial with no bail based on a finding of
dangerous to the community
I don't I've come to the conclusion that that is almost
essential to a system that at the other end
presumes the release for the rest of the defendants
in the district of columbia i sat in court recently i sat in our aim in court
money was not mentioned once
defendants charged with *** were given hearings within 10 days to decide
whether they should be released two detained without bail
I it was remarkable eighty-five percent of the defendants are released pre-trial
but doesn't that effectively shift a lot of the responsibility for the bail
decision
even more to the prosecutor because by charging certain offenses
where they have discretion they can enhance the possibility that someone
will be detained
well that there's some truth to that but on the other hand the defendants are
entitled to probable cause hearings and detention hearings
within three days for many types a violent felonies and within 10 if
charged with *** attempted ***
and the law presumes release in all criminal cases
Joe if they were system where there was a a combination with Joe and the chief
seem to be talking about in with the governor's talking about
would you be an advocate of having some quick hearing
after a bit no bail has been set so that you can
so the defense can challenge the underlying assumption has a different
now
you know when an application is made by defense counsel for a bail hearing
they're usually heard very quickly I mean I don't know how that would
different
except that you might have a great opportunity to get to the merits of the
hearing was set
to address the issue of whether this really is a case that should be
the Jarrett's up a case are always brought out
in a bail hearing the judge wants to hear what is the strength of the state's
case that is a fact
in the amount set by the court in pale
if you don't make that a factor and that's it I think what
we're suggesting here is the merits of the state's case will no longer be a
factor which is gonna look
at the offense on its face and we're gonna have a certain set of offenses
with is gonna be a presumption
that they should be released pre-trial for nonviolent offenses
and other offenses with they should not be released Petro
ike on I'm very reluctant to just simply say
that's the answer because there's no
review there's no independent process where
you still getting back to what is the likelihood that this person is going to
appear in court
which is why would advocate alternatives to incarceration pre-trial
with two with two minutes left let me just ask you
where do you think I will likely to go with this in the short term
it's not so easy is just even getting %uh the law changed right
we've got a constitution to deal with your correct in the constitution in this
state
I'm requires it call defense get bail except if you charge for the capital
offense to change that
we have to amend the Constitution and we have to eliminate this provision that
guarantees everyone a right to bail
yet both politically astute how likely is that well see I think I think this
can work because
you have at went into the spectrum you have maybe the prosecutors have the
world who think
and maybe properly so that certain defended should be locked up on defining
dangerousness and then you have the public defender's office over here with
hundreds if not thousands of clients on GL on very low bales
one other point and i think is important in response to which iran says nothing
is it under these
under us a sec a the scheme in DC for example
there are two affect things the judge is considering the judge is deciding
whether there is any condition
conditions of release that will ensure the defendant's appearance
and protect the community it's a two-prong application it goes to both
risk a flight and dangerousness and the
to government has to establish that there's no set a conditions release
that will ensure that the person come in to protect the community that's a high
burden that's why eighty-five percent of the people are religious scruples yes or
no question
but given the fact that you have the governor and the Chief Justice both
focused on this issue
what are the chances owns significant change in the system in the next year
if the judiciary fell that somebody being held
in jail at a thousand dollars was no different
then releasing that person and to wear a bracelet
as a prosecutor I can speak for 20 some practice before one
I would have known to find a yes/no from the future I i'm I'm very optimistic
I think the Chief Justice those comments reflected real desire in his part and
we are going to have to leave it there with I thanks to a joke a Korean drama
Llanelli
but it's a conversation we hope will continue in fact we'll have more on the
complex questions guilty pleas
next week when Rutgers law professor George Thomas talks about his new book
and help we deals inducements coercion and Mail
have made the criminal confession the overwhelming norm
it wasn't always so mean till next week check us out on Facebook and Twitter
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I mean ground
here's how what you got to do for people to both charged with the same thing let
Satan burglary
like things either of them have a criminal record under our laws their
titles were top
assumption if not incarceration it's a bad case the street from some very
for the defendant makes bail whose at Liberty
wealthy litigate the case there can offer him probation
he's gonna say absolutely not I wanna fight this case
I'm gonna but the state with props but the defendant was held inject after six
weeks
eight weeks four months eight months comes to court was told with
you say you're innocent we understand but if you plead guilty now
you will get out of jail today he's picking that
if night and said it and if not I'd
has nothing to do with open with the practical reality
help from me it is to be injured over effective
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