New York Federal Criminal Practice Blog
July 24, 2008

SDNY Judge Issues Notable Decision on “Weight” Factor in Bail Determinations

The Bail Reform Act in the federal system represents a delicate balance between the presumption of innocence and the need to assure the presence of a criminal defendant at subsequent court appearances.  This balance was sorely tested in a meticulously analyzed decision in United States v. Jones, 08 Cr. 0535(VM), 2008 WL 2796543 (S.D.N.Y. July 17, 2008), a case involving death eligible murder charges against an individual with a decidedly checkered past, but where there were also “persuasive arguments” from the defense on the weight of the evidence against him (including eye witness testimony that arguably excluded the defendant from the murder scene, alibi evidence from witnesses - albeit ones with credibility issues - and a potentially exculpatory statement obtained by a government agent from an eye witness).  This evidence suggested a high potential for establishing reasonable doubt at trial, but as Judge Marrero emphasizes in Jones, guilt or innocence is not the issue in bail determinations. 

Analyzing the bail factors in the case – the circumstances of the offense charged, the defendant’s history, any potential danger to the community and the weight of the evidence – Judge Marrero, in a de novo review, affirmed the magistrate’s conclusion that the defendant had not rebutted the presumption.  (Because of the charges the defendant faced, there was a rebuttable presumption that no bail conditions would assure the defendant’s presence in court.)

What is most interesting is the court’s analysis of the “weight” factor.  Quoting a Ninth Circuit case, the court pointed out that “because the Bail Reform Act ‘neither requires nor permits a pretrial determination that the person is guilty,’ the Court’s function in examining the weight of the evidence is not to determine guilt or innocence.”  The court continues: “[t]he Weight Factor ‘may be considered only in terms of the likelihood that the person will fail to appear or will pose a danger to any person or to the community.’”  Thus, “c]ourts generally consider the Weight Factor as the ‘least important’ of the Factors.”

Here, the court concluded “although both parties made persuasive arguments regarding the weight of the evidence, this factor, even if all credibility issues were viewed in a light favorable to [defendant] Jones, does not tip the balance in favor of allowing his release on bail.”

This case will be an especially useful case in close bail cases where the evidence against the defendant is strong, but the other bail factors militate in favor of release. 

12/29/2008 Update: In United States v. Jones, 2008 WL 4702742 (SDNY October 22, 2008), the court held that new evidence purporting to establish that the co-defendant to whom the defendant allegedly passed a firearm was not actually present at the scene of the murder now meant that the weight of the evidence overcame the presumption of detention, warranting granting the defendant’s renewed motion for bail.

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