With the onslaught of COVID-19 and the virus’s breakneck pace of infecting jail and prison populations, the criminal defense bar’s job must now include the short-term goal of getting an incarcerated client out of jail or prison. One way to do that is with a bail motion or a motion seeking pretrial release. Whether you practice in the federal system, or in Pennsylvania or New Jersey’s trial courts, it is incumbent that you try to get your client out. Unfortunately, the magistrate judge, the magisterial district or municipal court judge, or the law division judge you are before might not see things your client’s way. But that does not mean the fight is over. In each jurisdiction, you have the right to appeal an adverse ruling on your client’s pretrial incarceration.
Some lawyers don’t file appeals, though, because like all appeals, a substantive brief might be needed. And certain strategic decisions likewise must be made. Do you wait for the transcript of the hearing in the court below for your appeal? How much time do you have to file the appeal? And how much work is going to go into the appeal? These are all important questions, and given that our personal lives are consuming more of our time (who else is homeschooling multiple kids?), the prospect of fighting an appellate war might seem daunting. But @MattSullivan and I are here and are happy to help you with your pretrial detention appeals.
Under 18 U.S.C. § 3145, a criminal defendant has a right to appeal a magistrate’s adverse pretrial detention ruling. The code and court rules are generally silent on the procedure for such an appeal. But the Third Circuit has filled in some of the gray area with caselaw. Critically, in United States v. Carbone, 793 F.2d 559 (3d Cir. 1986), the Third Circuit joined several other circuits in holding that, even where a statutory presumption against pretrial release exists, the defendant bears only the burden of producing countervailing evidence, but the burden of persuasion remains with the government. The Court ruled: “The Defendant must produce some credible evidence forming a basis for his contention that he will appear and will not pose a threat to the community.” Though the bar against pretrial release in federal presumption cases is formidable, the Carbone court left some daylight for pretrial release.
Pennsylvania and New Jersey have similar judicially-created quirks that allow for more success than some defense attorneys assume when it comes to appealing adverse pretrial detention rulings, whether it be an issue of monetary bail in Pennsylvania (and limited New Jersey scenarios), or under New Jersey’s bail reform rules.
If you have a client in jail, awaiting trial, it’s worth filing the motion. And if the result is not favorable, remember, the fight is not over. @MattSullivan and I are experienced ghost writers and are have handled these appeals in the Eastern District of Pennsylvania, the District of New Jersey, the Superior Court—Appellate Division, and the Court of Common Pleas. We write, and you win.
