PROTECTIONS FOR THE DEFENDANT

American law requires that all persons accused of a crime must be presumed innocent until proven guilty. It requires that the legal system justify any limits placed on an individual’s freedom, even if they are suspected of committing a crime. Therefore, there are laws and rules of procedure to protect citizens from being unreasonably detained or confined.

If arrested, the U.S. Constitution insists that three things be done to protect the citizen:

• The citizen is told why they are being detained

• Must not be unreasonably detained

• Must have the right to an attorney to defend them.

If a suspect is either detained or released on bail, the court must act within specific time frames, based on the seriousness of the matter, to ensure that a defendant is not held indefinitely. There are also time limits to protect a citizen’s right to a speedy trial. The State is required to prove that there was “probable cause” (a strong likelihood) to arrest someone. This is accomplished by a hearing in front of a Magistrate who decides if the accused likely committed the crime.

MAGISTRATE AND COMMISSIONERS

The Magistrate’s Court makes decisions on minor offenses, and holds initial hearings for major offenses. This court is made up of an elected Magistrate and four Commissioners, who hold court seven days a week. They will be the first administrator of the law that a suspect will meet. All felony cases are processed through the Criminal Court.

• Both the Magistrate’s Court and Criminal Court are located in the same building.

ARREST OF SUSPECT

A suspect may be arrested with, or without, a warrant.

Arrest without a warrant: If a suspect is arrested without a warrant, then within 48 hours the Magistrate must find that the officer had “probable cause” or a valid reason for the arrest.

- Or -

Arrest with a warrant: If evidence leads the NOPD to identify a suspect, they submit an affidavit (a written document and sworn statement) detailing the relevant facts to a Magistrate for an arrest warrant. If the Magistrate decides that the evidence meets the probable cause standard, s/he will sign a warrant to allow the police to arrest and jail the person now charged with a crime.

FIRST APPEARANCE / PROBABLE CAUSE HEARING

For both situations (arrest with or without a warrant), the Magistrate must be satisfied that there is evidence for the suspect’s arrest, and will use a probability standard: in other words, that it is most likely the suspect was involved in the crime – called probable cause.

• Note that the Magistrate is not trying the case and does not determine guilt or innocence.

DECISIONS BY MAGISTRATE IF PROBABLE CAUSE FOUND

If the Magistrate is satisfied there is probable cause, s/he will address the three matters required by the Constitution:

1. Advise the suspect of what s/he is charged with, for example, manslaughter, negligent homicide, or second-degree homicide. There may be multiple charges the suspect is accused of committing.

• Note also that a suspect may not necessarily be present at the hearing, if they are physically or mentally unable to be there.

2. Determine if there is reason to hold that person in jail without bail, or decide if the suspect is eligible for bail. The ADA may argue that there is a reason to hold the suspect without bail, or that a certain amount of bail is necessary to restrict the suspect.

3. Appoint a Public Defender (a defense attorney) if the suspect cannot afford one, as everyone has the right to be represented in court. A suspect can choose to hire a private defense attorney.

ADA and Public Defenders are sometimes present at the Magistrate’s Court, as part of what is called pre-trial services, in order to represent and preserve the interests of the State and the defendant, respectively.

FELONY CLASS DEFINITIONS

Every crime is put into certain groupings, called classes or degrees. These range from the unintentional (often resulting from carelessness or an unfortunate accident), to a premeditated killing that is planned out.

Major felony cases occur when severe bodily harm has been inflicted, and are put in broad categories:

• Homicides

• Sexual assault cases (rape, non-consensual touching, groping, and child sexual abuse)

• Gun crimes (armed robbery, shootings, involving use of intimidation)

• Significant property crimes, such as arson.

Any case can be a mix of several felony classes, with some aspects involving the State and others involving federal agencies. If there are several levels of felonies in the charges, the bail is set according to the most serious of the charges.

First-degree Felonies:

Such cases may involve murder, aggravated rape, or robbery. Convictions in such cases can involve life in prison or the death penalty (called “capital” cases). The DA makes this decision.

For homicide cases, the DA office has 120 days if the suspect is in custody, and 150 days if they are out on bail, to make a charge. The right to bail for a 1st-degree felony is typically denied.

• 1st-degree murder – This refers to an intentional killing with aggravating circumstances (things that increase the seriousness of the crime) – such as murder of a police officer or fireman in the line of duty, an elderly person over the age of 65, a child under the age of 12, more than one person being killed, or while committing another felony (such as arson, kidnapping, or rape), or paying someone to kill a witness or family member.

• 1st-degree rape – Where the victim resists but is overcome by force, is threatened by great and immediate bodily harm, the person committing the crime is armed, victim is under 13 or over 65, two or more persons participate, or the victim suffers from a physical or mental infirmity preventing resistance.

• 1st-degree robbery – This involves the taking of anything of value belonging to another by use or force or intimidation, where the person committing the crime leads the victim to believe s/he is armed with a dangerous weapon, such as with armed robbery.

Second-degree Felonies:

These can include aggravated assault, child molestation, forcible rape, sexual battery, and hate crimes.

• In such cases, the DA has up to 60 days to make a charge if the suspect is continued in custody, and 150 days if they are out on bail (but this is usually done sooner).

• 2nd-degree murder: This can either be an intentional killing without aggravating circumstances, or the unintentional killing of someone while committing a felony (such as armed robbery). For example, if someone is robbing a bank and fires a warning shot, and the shot accidentally kills someone, this is second- degree murder.

• 2nd-degree rape: Where the victim is prevented from resisting by force or threats of physical violence, is incapable of resisting or understanding the nature of the act by reason of stupor, or abnormal condition, produced by a substance administered by the person committing the crime without knowledge of the victim.

Third-degree Felonies:

This includes assault and on of pornography, driving under the influence, bribery, arson, fraud, promoting the prostitution of a minor, elder abuse, and various drug possession offenses.

Manslaughter:

Crimes of passion where a person feels provoked to commit crime. Sentencing ranges from 0 to 40 years, and takes into account the defendant’s criminal history.

BAIL AND BONDS

Bail allows for the temporary release of a suspect from jail if they are able to post the amount of money required by the court. Usually, a suspect will apply for a bond from a bail bondsman by pledging a percentage of the bail amount in some form of money, like property, cash or valuables.

The suspect is released if they can post cash or make bond (provide a percentage of the bail amount, which is set at 12%). A bail bondsman will post the full amount of the bail to the court, which is then called a bond, and this secures the release of the suspect. The cash or the bond acts as a guarantee that the suspect will appear back in court.

• The bail will be forfeited (or given up) if the suspect does not appear for trial, and the court may issue a warrant for his/her arrest, and s/he may be brought up on further criminal charges for that failure to appear. If a suspect violates any of the terms of his/her conditions, s/he can be held in jail until trial.

In setting bail, the Magistrate will consider:

• The severity of the crime

• Whether the suspect poses a danger to others

• Whether or not the suspect is likely to flee if released from custody or bail obligations – and may then set an amount of money (bail) to prevent that individual from leaving the community

• A suspect’s prior record is taken into consideration

• In very serious cases the judge may deny bail, or not allow the

  accused to receive calls, or may set bail at a level that assures

  the accused will remain in custody until the case is disposed

  (completed).

  • No bail is allowed for first-degree murder cases.

Any case can be a mix of several felony classes, and may even be mixed with some state or federal violations (for example, with drug cases). If there are several levels of felonies in the charges,the bail is set according to the most serious of the charges.

Once bail has been set, a suspect may request a hearing for bail reduction at any time, and this can be made before any judge or commissioner if the case has not been allotted to a trial judge. (After arraignment, the presiding judge must hear it.)

The ADA or DA Victim Witness Coordinator is supposed to notify the victim’s family that a hearing for release from custody or bail reduction is being requested, particularly if the ADA thinks there is a likelihood that either might be granted by the judge.

• Since they do so as a matter of courtesy to the victim’s family and are not required by law to do so, ask your ADA or DA Victim Witness Coordinator to make sure you are told of any such requests.

Court Watch NOLA has written a report on the Magistrate’s office, and recommends bail reform involving low-risk versus high-risk individuals accused of crimes, stating: “Judges should rely on the totality of a defendant’s individualized circumstances, as captured by PTS (pre-trial services) reports, rather than placing undue emphasis on the defendant’s pending charges in making pre-trial release decisions,” and that the judges and commissioners “should not have a blanket policy refusing to set bonds below a certain amount for all defendants regardless of individual circumstances,” and their ability to pay.

• Court Watch NOLA has successfully pushed to include crime victim advocates in both the bail bond reform conversation and coalition. [Read under Reports on www.courtwatchnola.org]

The co-defendant in my case was released when a judge from another section reduced her bail. The ADA was not notified of this hearing (by law notification is not required). This horrible situation has been addressed by improvements in procedures and communication. The system now has safeguards to prevent this failure of communication, but human error could still allow this to happen in rare instances. - Rose

MAGISTRATE STATUS HEARINGS

In all violent crime cases, there are time limits on how long a suspect can be kept in custody without being charged.

The Magistrate’s court monitors the progress of a case with what is called a status hearing, held every 28 days from the Probable Cause/ First Appearance Hearing). This is a safeguard to make sure that no case becomes “lost” in the legal system’s many requirements.

• If the suspect, who is out on bond, fails to appear in court, they will be subject to being returned to jail, or forfeit (lose) their bail.