Following arrest, the accused's initial appearance before a magistrate will largely dictate the course of events to come. If you're arrested without a warrant, the State has 48 hours to bring you before a magistrate to determine if there is a sufficient basis, or probable cause, to charge you with the crime alleged. (If arrested with a warrant, a magistrate already has found probable cause to issue the warrant.) No probable cause, no jail awaiting trial. If there's cause to hold you in jail, the magistrate will set bail, which allows you to be released from jail pending trial upon furnishing the security the magistrate believes is necessary to assure your appearance in court. Pretty important stuff, right? The speed and perfunctory process might give pause to the man behind your local deli counter.
My first exposure to bond hearings was on a Sunday at the House of Detention -- first stop on the jail express. (Bond hearings are held seven days a week to account for daily arrests and the 48-hour rule.) Around 50 people arrested over the last 24 hours were herded into the old line-up room at central lock-up, adorned in retro-bureaucratic Spartan furnishings: a few weathered tables and rows of metal and plastic chairs. In other words, it's a dump. The prisoners all wear bright orange jumpsuits with OPP (Orleans Parish Prison) emblazoned on the front and back, legs shackled (sometimes to another prisoner) and sheriff's deputies stationed all around. Our team -- one experienced public defender, me (not so experienced), and three law students -- has about 30 minutes to fan out and interview all the prisoners to find out each person's criminal history, physical and mental health, current employment, parole and probation status, and family and community ties -- all factors that bear on the bail determination. Needless to say, there's hardly time to interview one or two persons in that time, let alone the whole lot of them. And there's definitely not time to hear about the facts of everyone's alleged misdeeds (though they surely want to talk about that).
Most insist they are innocent. Most are not. But some undoubtedly do not belong in jail. Repeatedly you hear how the police planted evidence or someone was picked up based on an “anonymous” tip, i.e., “You look sketchy in a bad neighborhood, so we’re gonna search you.” No doubt, most of this, in the words of one law school professor, slices the bologna too thin. But it's difficult to discount their stories completely. Case in point: Upon meeting Carl at the bond hearing, you wouldn’t miss the fact that he had a brand new black eye, bruises, and generally looked beat up. As he tells it, he was pulled over for a traffic violation and the police beat the crap out of him for no good reason. It’s hard to dispute the beating part. His crime? Criminal trespass. Right. Sounds more like the cops had to charge him with something if they were going to justify the rough treatment.
Some are just angry and defiant. Perhaps that’s how they should feel. In others you sense the fright and apprehension. Trust me; you don’t want to be locked up in OPP. Still others are simply resigned to their fate, while a few are confident that their buddy will bail them out. They’ve been through multiple arrests and know the drill.
Before you know it, the Magistrate strolls in, takes his position at the desk on an elevated stage overlooking the rows of prisoners, separated by a table with a couple Assistant District Attorneys and computer. Time's up. Pencils Down. It’s my chance to make a case based on the reams (or not!) of pertinent information I was able to learn in a short interview. Unfortunately, it all makes little difference. The hearing for each person usually lasts 30 seconds or so -- just long enough for the Assistant DA to read the charges and criminal history and for the judge to set bond. If I've got some particularly compelling facts for either probable cause or to set bond, the judge will indulge another minute or two of argument. Defense lawyers in this process primarily serve as ornaments to give some semblance of fairness. If you’re a prisoner, you'd better hope your lawyer is lucky, rather than good.