Although criminal defendants charged with 1st degree murder in Massachusetts do not have a right to bail, the Supreme Judicial Court recently ruled that a judge has discretion to afford them with a bail. In its decision in Vasquez v. Commonwealth, the SJC explained that bail had been granted in the court’s discretion in capital cases from early colonial times. This “common law” rule had not been changed or overruled by statute.
By way of background, the Massachusetts legislature rewrote the bail statute in 1971. In that amendment, c. 276, sec. 58 established a presumption of release on personal recognizance pending trial. That statute, however, specifically excludes persons charged with “an offense punishable by death”. That provision, however, was interpreted to mean that sec. 58 doesn’t apply to persons charged with murder in the first degree, even though the SJC, in 1981, ruled that the death penalty statute then in effect was unconstitutional. For that reason, sec. 58 does not preclude bail for a person charged with 1st degree murder and it is in the judge’s discretion whether or not grant it – despite that there is no “constitutional right” to be released on bail prior to trial.
With this backdrop, the SJC outlined what factors a judge should consider when a criminal defendant charged with 1st degree murder requests that he be afforded a bail. The factors or balancing test is similar to those that a judge would consider in granting bail to any other criminal defendant, including: the nature and circumstances of the allegations; the defendant’s family background, educational history, financial resources, and ties to the community. Other factors that might also be considered include the defendant’s prior criminal history and/or record of convictions; whether there is any history or record of defaults in court appearances; his character; and his mental condition. The SJC further noted that judge’s should also consider if the murder or other criminal offense charged involved any circumstances of domestic abuse or violation of a restraining order.
Obviously, the greater the charge and greater potential length of imprisonment might cause the judge to pay particular attention. For instance, a person charged with an OUI/DUI would probably more likely to appear in court than someone charged with rape or murder, where the potential punishment is much more severe, and therefore might be more likely to flee and attempt to avoid punishment. Clearly, for persons charged with murder, the risk of flight to avoid a potential life sentence to state prison without the possibility of parole is greatest.
Because of the inherent risk that one charged with murder might flee, there is a presumption that someone charged with murder is not entitled to bail. BUT, although this might be a significant concern, the risk of flight in a capital case is not to be treated as automatically dispositive. In other words, bail shouldn’t be denied, even in a murder case, for that reason alone. The judge should go on to also consider the strengths and weaknesses of the government’s case. If the evidence against the defendant is weak, and/or if he has a strong defense, he may be less likely to flee. On the other hand, if the evidence against the defendant is strong, there may be more incentive for him to take off.
Even in a pending case, long after a defendant has been arraigned, issues or circumstances can arise that might warrant reconsideration of the issue of bail. These might be referred to as a “change in circumstances.” For example, in a recent murder case that I am handling, my client was held without bail following his arraignment. After discovery was produced by the Commonwealth, I discovered that some of the grand jury testimony presented to obtain the indictments was false. A motion to dismiss based on false testimony to the grand jury was filed, and after an evidentiary hearing, a judge agreed with my position and allowed my motion to dismiss. In his findings, the judge noted that, without the false testimony, the government’s case was substantially weaker.
In this situation, there has been a significant change in circumstances in the strength of the governments case. So much so, that the issue of bail could very well be addressed and warrant the imposition of a reasonable bail in these circumstances.
There are simply so many factors and variables that a judge could consider. Ultimately, though, it’s critical for the defense lawyer to know as much of the facts and circumstances, both with regard to his client as well as with the case, so that he is able to “educate” and persuade the judge that a bail is, in fact, appropriate.