Appealing a Bond in Virginia

It was pointed out to me that I didn't discuss the process for appealing bonds in Virginia. Admittedly, I've never seen one appealed above a circuit court, but there is a process and here it is as best I can discern by delving into the dark recesses of the Virginia statutes and rules of court.

Everything starts with the magistrate. A magistrate (limited judicial officer who is the first to see arrestees) can set a bond except when the case falls under the statutory presumption against bond, 19.2-120, the arrestee is an illegal alien with certain charges, 19.2-120.1, or a judge set a no bond condition on a capias (that's a bench warrant for those of you from States uncouth enough to use English in their courtrooms) 19.2-130.1.  Shortly after her appearance before the magistrate, the defendant's next hearing is in front of a judge. This usually is one of district court judges (general or juvenile and domestic), but it can be the circuit court judge; it all depends on how she was charged and what the charge is.

If the defendant appears before a district court, she can ask for a bond hearing and it must be set within 3 days; so can the prosecutor if he believes the bond inadequate 19.2-158.  That judge can set a bond or alter an existing bond (increase, decrease, change conditions). If either side is unhappy about the result of that bond hearing they can appeal to the next higher court (the Circuit Court in this case). If the district court judge sets a bond in contravention of the statutes which set a presumption against bond, 19.2-120 and 19.2-120.1, and the prosecution appeals then the district judge must stay the execution of his bond order until an expedited appeal is done or for 5 days, whichever is shorter. 19.2-124. An appeal to the circuit court generally just involves going to the district court clerk's office, filling out a little paperwork, and setting a date.

When the bond issue gets to the circuit court, either on appeal from a district court or dealing with its own case (the same 3 day window as above applies), it sets a bond which it considers appropriate. Then comes the interesting part. Both sides have the ability to appeal to the Court of Appeals and thereafter to the Virginia Supreme Court (arguably).

So, your circuit court judge, the Honorable Euripides Titus Hartfordshire the Fourth, believes that everyone has a constitutional right to a bond. He's wrong, of course, but he's a Hartfordshire of the Snob Knob Hartfordshires and you aren't. You're not going to win that argument in his court and all the defense attorneys know it. So you're constantly in front of him arguing things like "No, the Pitcairn Axe Murderer should not get a bond, Your Honor." He sets one anyway and you, poor, piteous, humble prosecutor are faced with the prospect that if the PAM can get his biker buddies to pony up enough money and find a gullible enough bondsman he can get out on a $25,000 bond and ride off into the sunset never to be seen again.

What do you do? Well under 19.2-124(A) a defense attorney is entitled to appeal the bond all the way up to the Virginia Supreme Court and 19.2-124(B) gives you the right to do anything a defense attorney can. As well 19.2-398(B) tells you that this is one of the few things a prosecutor can appeal. So, you decide to go for it. How do you do it?

What else do the statutes tell us about this? First, under 19.2-124(D) no one has to pay any fee for an appeal of bond. Second, there is a curious oversight in the 19.2-124(C). For appeals at all levels, it allows, but does not require, the judge who set the bond to stay the execution of his order as long as reasonable when there is no presumption against bond. However, there is no instruction as to what should happen for those crimes wherein there is a presumption against bond when there is an appeal to the appellate courts - there is only instruction for an appeal from a district court to the circuit court. Consequently, while there is an implication that bond orders pertaining to these types of crimes should be stayed pending an appeal, there is neither a statutory requirement nor a statutory authorization that they be stayed. At best, you may be able to get the circuit court judge to stay his order based upon his inherit ability to do so. At worst, because the statute lays out one circumstance under which the bond may be stayed and one circumstance under which it must be stayed, the statute forbids a judge from staying his bond ruling under any other circumstances (inclusio unius est exclusio alterius) and a bond on charges against the presumption which is not being appealed from a district court to the circuit cannot be stayed. Period. If anybody reading this knows someone in the General Assembly you might want to mention to them that it'd be a good idea to fix this. Third, I can't find anything else in the statutes which applies.

COURT OF APPEALS

Next, we look to the Rules of the Virginia Supreme Court - specifically 5A (Court of Appeals). Here, the appellate courts pull a switch which doesn't seem to mesh with the statutes. The General Assembly through 19.2-124 refers to "bond appeals" and in 19.2-398(B) only authorizes prosecutors to "petition for appeal" in bond matters. Rule 5A:2 changes this to a "Motion for Review of Pre-trial Bail Orders in Criminal Cases" in the Court of Appeals (the Virginia Supreme Court does not address this in 5:4, its motions rule). This is important for three reasons. First, a prosecutor who follows the Rule will be in violation of the statute. Second, the appealed order of the circuit court is not suspended as it would be upon the filing of a notice of appeal.  19.2-400.  Third, the prosecutor loses the waiver of speedy trial which would normally come from a defense action that causes a delay in the trial.  19.2-409.

Honestly, I don't have a lot of issues with the third problem as long as the Court of Appeals rules expeditiously. Bond really should be one of those collateral matters decided in parallel with substantive trial proceedings. The second problem is probably the worst as a practical matter. As noted earlier, without this suspension it is quite possible that the way the statutes are written a defendant charged with a crime that carries a presumption against bond will not have his bond stayed/suspended while the motion is pending and (assuming the prosecution is right) could get out before an appellate court decision and flee or harm others. The first problem is also troubling. Prosecutorial appeals are entirely a creation of the General Assembly through its statutes. If, as it will have to, the prosecution follows the procedure laid out in Rule 5A:2 it is acting outside its granted ability to appeal and the defense will have a solid argument for dismissal out of hand.

General Motion Rules: Laying all that aside for a moment, let's look at what Rule 5A:2 requires. Any party seeking review must file an original motion and three copies to the Court of Appeals' clerk. It would probably behoove the moving party to plead with specificity here because unless the Court agrees to oral argument there is none. Your motion must state (1) you told the other party that you intended to file the motion, and (2) whether opposing counsel agrees with your motion or intends to file a reply. If opposing counsel chooses to reply he has 10 days, but the Court of Appeals does not have to wait for his reply before it rules on the motion.

Rules Specific to Bond Review Motions:  The moving party must file "(1) the warrant(s) or indictment(s) in the case; (2) the order granting, denying, or setting bond; and (3) a transcript of the bond hearing or a stipulation between counsel stating the evidence introduced at the bond hearing and the ruling of the circuit court." Number three here is going to be an obvious source of difficulties. Judge Hartfordshire has, of course, let the defense call eight witnesses (mother, grandmother, girlfriend, a third uncle twice removed, &cetera) to testify what a loving, hard-working saint the Pitcairn Axe Murderer is and you called two witnesses of your own. The hearing lasted four hours. Your regular court reporter might not be able to get that to you for a week or so and there is no way you're getting a stipulation from opposing counsel. Note that this does not provide for the circuit court to resolve any difficulties between prosecutor and the defense attorney so the other side would have to be cooperative and that would be contrary to his client's interest in having a bond - arguably an ethics violation. So, there will almost invariably be a delay between the circuit court ruling and your ability to appeal.

And your prize for jumping through all these hoops? The Court of Appeals will review the circuit court judge's ruling for "abuse of discretion." If your circuit court judge has stated on the record that he is constitutionally required to set a bond you might win. Otherwise, you better have some amazingly awesome facts on your side or you've spent a lot of time navigating through the reefs just to run smack dab into the shoals.

SUPREME COURT

The Virginia Supreme Court doesn't have any specific rules that apply to bond review motions and no announced standard of review. However, since 19.2-124 says bond "appeals" can go to the Supreme Court and 5A:2 makes these appeals motions, one could assume that these would be dealt with under Rule 5:4 which has the same general motions requirements as laid out for the Court of Appeals above. Of course, with no instruction the rest is not clear, but it would be a good idea to send all the stuff that you did to the Court of Appeals to the Supreme Court as well and I assume they would apply the same standard: abuse of discretion. The only tricky part is whether the Supreme Court's review will be of the Court of Appeals or the circuit court. Thus styling of your motion might be something like: "Motion for Review of the Court of Appeals Review and the Circuit Court's Bond Ruling." And you would do well to address both issues in your motion to cover all the bases.

And that's it. Good luck to all of you out there brave enough to sail these treacherous waters. Bon Voyage.

What's in a Bond (Hearing)?

The setting of a bond is one of those things prosecutors and defense attorneys skirmish over all the time. Should the Pitcairn Axe Murderer get a bond? No. Should someone charged with a first-time reckless driving misdemeanor because of speed get a bond? Almost certainly, yes.  But what about the serial shoplifter who goes to various stores and walks out with a pack of gum one day and an Enquirer the next week and Snickers bar the week after that? These are the cases all us attorneys get together and conspire to give judges migraines over.

Those of you who watch a lot of TV hear "bail" talked about all the time. In a Virginia court you'll almost never hear that word. Instead you'll always hear "bond" talked about. For the sake of clarification, here are the basic definitions. Bail means being on pretrial release. Bond is the amount of money paid to get released. As a practical matter the word "bond" has been used to mean both of these things wherever I've practiced in Virginia (your mileage may differ) so you will hear me, other Virginia attorneys, and frequent fliers saying things like "he's on bond."

CONSTITUTIONS: To begin any discussion of this sort of topic we must look to the constitutions. It does not appear that the federal constitution's requirement that "Excessive bail shall not be required" has been applied to the States, although it is probable that all States have adopted similar requirements under their constitutions. Virginia adopted the a very similar constitutional provision - only leaving out the "shall." In Article I section 9 it states "That excessive bail ought not to be required." Both of these are lifted from the English Bill of Rights of 1689 which stated "that excessive bail ought not to be required." Note that this was not intended to declare a universal right to bail; it was meant to close loopholes used to keep those entitled to bail from being able to exercise that right. There is not and never has been a universal right to bail.

Beyond all that, Virginia's constitution demands more balance than the federal constitution. Article I section 8-A states that victims have "The right to protection from further harm or reprisal through the imposition of appropriate bail and conditions of release.

Once you get past the generalities and purpose of the constitutional provisions there must be a manner in which they are applied. There's a two part test in Virginia. First, a judge must decide if the defendant should be on bond. Second, if a judge decides that bond is appropriate he must decide what conditions of pretrail release are appropriate.

SHOULD THERE BE A BOND?:  Under 19.2-120, a person is entitled to bond unless (1) the judge finds that there is probable cause: (a) the defendant is unlikely to appear, or (b) the defendant is likely to hurt himself or others, or (2) the defendant is charged with any of a number of offenses listed in the statute (in the main violent and sexual charges, being already on bond for a felony charge, as well as the second time dealing a schedule I/II drug). In the second case a defendant can still get a bond, but he must overcome a presumption against bond (presumably to a preponderance standard).  (2)(c) The factors which the General Assembly has laid out to use in deciding whether the presumption has been overcome are: (i) nature and circumstances of the charge, (ii) the history and characteristics of the person, and (iii) danger to the community upon release.  Also note that there are similar presumption against bond provisions for illegal aliens under 19.2-120.1.  My experience has been that while some judges hold harder to the rebuttable presumption than others, all will decide that it has been overcome at some point.

WHAT KIND OF BOND SHOULD THERE BE?:  (A)  Conditions:  If a judge does decide to let a defendant out on bail there are several conditions he can set per 19.2-123, but the only ones that really mean anything are (1) the amount of bond to be posted, and (2) the possible imposition of pretrial services. The first of these is by far the more significant as pretrial services really can't stop someone from shoplifting or going to beat up a witness or running away to Oklahoma City; the bars of the jail can.  (B) Requirement: In setting conditions the judge is required to accomplish two things: (1) Assure the defendant comes back to court, and (2) insure the defendant is on good behavior prior to trial.  19.2-121.  (C) Considerations: In setting these conditions the judge is to consider (1) nature and circumstances of the crime, (2) use of a firearm, (3) weight of the evidence, (4) ability of the defendant to pay bond, (5) character of the defendant including (a) family ties, (b) employment, and (c) if she's in school, (6) length of residence in the community, (7) criminal record, (8) any prior failures to attend court, (9) whether the defendant is likely to try to obstruct justice, and (10) other factors.  19.2-121.

All the factors in setting a bond make sense except (4) above (19.2-121(iv) in the statute).  That one is problematic. On the one hand, it is arguably a sound consideration in determining if a bond is excessive for that individual. On the other hand, there is nothing in Virginia's constitution (or the 8th Amendment) that says "excessive for that individual."  Let's assume a defendant stands charged with malicious wounding and judge first decides that there has been a rebuttal of the presumption against bond then decides based upon all the other factors that an objectively appropriate bond is $10,000 (secured by cash or property).  If the defendant protests that he can only make $5,000 bond and the judge lowers it to $5,000, isn't he violating both (1) the requirements of the statute and (2) the requirements of Art. I sec 8-A of the Virginia constitution? After all, he has set the bond which he objectively believes will assure appearance in court and good behavior prior to trial - which would include protecting the victim from further harm or reprisal as required by the Virginia constitution. Lowering that bond because of the defendant's financial situation can only lessen the the assurance of appearance, lessen the probability of good behavior pretrial, and lessen the protections guaranteed for the victim. Sure the judge can write on a piece of paper "no contact", but we all know how useful that piece of paper is at 3 a.m. when the defendant shows up at the victim's house. The same goes for pretrial services. It can do weekly check-ins and drug screens, but it isn't a lot of good during that 3 a.m. confrontation either. This part of the statute really should be excised and if it's not, it should be the  very least of the factors considered by the judge.

Appeals by a Virginian Prosecutor

Okay, so you're a prosecutor in Virginia and you've always liked Judge Smith, but he just made the most amazingly boneheaded decision you've seen in years. Can you appeal and how in the heck do you do it?

Well, you can, but it's limited to certain circumstances laid out in 19.2-398. Basically, this breaks down to (1) a dismissal of charges for speedy trial violations or constitutional reasons, (2) suppression of evidence for constitutional reasons, (3) bond conditions, (4) the judge violates mandatory sentencing statutes, and (5) if the judge rules a statute unconstitutional and dismisses the charges. If you've got a case that might fit go read the statute to make sure.

So, your case fits. Judge Smith suppressed the evidence in your Felony Snipe Hunting charges because he believes there was an unconstitutional search under the 4th Amendment. What do you do now?

Well, prosecutors in Virginia have very different rules for their appeals than defendants do. So even if you spent years doing appeals as a defense attorney, or maybe because you spent years doing appeals as a defense attorney, you need to know that the timeline is much, much shorter and conduct yourself accordingly.

First off, you need to know that the luxuriously long 30 days that defense attorneys have to file notice of appeal ain't there for you. Nope, under 19.2-400 a prosecutor gets a whole 7 days to file a notice of appeal (not even seven business days). First things first, get the judge to sign an order for transcripts to be typed up. Here again the timeline is different. Unlike an order for a defense appeal, your transcripts must be delivered no more than 25 days from the trial court's suppression order (defense gets 60), although the Court of Appeals can grant up to a 45 day extension. 19.2-405. Once you've gotten the order for transcription, file your notice of appeal. Rule 5A:6 is the form used to note an appeal. HOWEVER, be aware that it is not complete if you are a prosecutor. In addition to what's in 5A:6, if you are appealing a suppression of evidence you must "certify in the notice of appeal that the appeal is not taken for the purpose of delay and that the evidence is substantial proof of a fact material to the proceeding." 19.2-400. Note also that the written portion of 5A:6 wants a lot more information about both counsel than the form it gives you including whether defense counsel is hired or appointed, email addresses, Bar numbers, &cetera. Per Rule 5A:6, send the notice of appeal to the circuit court clerk, opposing counsel, and the clerk of the Court of Appeals. DO NOT FORGET to send along a fifty dollar check to the clerk of the Court of Appeals as your filing fee (because the  government paying the government always makes so much sense). Nope. Don't send any money. The fee is non-applicable per 17.1-266. At least it is according to a nice letter we just got from the Court of Appeals returning our check. Of course, on previous occasions they've taken our checks, so . . .

Then you wait until the transcript arrives. After this arrives, you must file a notice of its arrival and filing with the clerk of the circuit court (who should already have a copy) and send a copy to the defense attorney; make sure to certify that the notice has been sent to the defense attorney. 19.2-403.  THIS NOTICE MUST BE FILED WITHIN 3 days of receiving the transcript or 14 days of the judge's suppression order, whichever is later. 19.2-403.

From the day the notice of transcripts is filed, you have 14 days to file your petition.  19.2-402.  Send 4 copies to the clerk of the court of appeals and 1 copy to the defense attorney. Rule 5A:12.  Thereafter the defense attorney will have 14 days to file his brief in opposition.  19.2-402.  After that the only thing you might have too do is an oral presentation to judges of the Court of Appeals, if you demanded one in your petition. Then, the Court of Appeals decides whether to accept the petition within 30 days of the defense attorney's brief.  19.2-403. If it does, the Attorney General takes over and you just wait until someone sends you the result. 19.2-404. If you lose, you lose. The Supreme Court of Virginia doesn't exist as far as we're concerned. 19.2-408.

Okay, so that covers the timeline. Now, what should be in the petition? 

Petitions are pretty standard no matter who is filing them and they are governed by Rule 5A. DO NOT USE RULE 5. For some unknown, unfathomable, and irrational reason, the Supreme Court's petition/brief requirements always vary from the Court of Appeals' petition/brief requirements. Once in a while the worst of these variances gets fixed (Questions/Errors), but don't take the chance that a variance will get your petition kicked on a technicality.

What I put in a petition and the order I put them in (See Rule 5A:12):

1. Cover Page - Not required but makes a better presentation.

2. Table of Contents - List everything the Rules require and anything else you thought important enough to give its own header.

3. Table of Authorities - List every case (alphabetically), statute, or other authority and every place it is cited in your petition.

4. Nature of the Case & Material Proceedings Below - Briefly state (a paragraph or two) what type of case it is, what hearings took place, and the results of the hearings.

5. "Assignments of Error" - MUST be a separate section. MUST be under exactly that heading. MUST contain all errors you want to appeal. These errors must be more than a bare allegation of error; they are to describe the error without being overly verbose. MUST have a citation attached to each error where it occurred / was preserved. For this last, a defense attorney would normally cite where he objected. In most cases you probably don't need to do that as you are arguing against a defense motion and your objection is inherit in that (object to the ruling anyway to be safe).  HOWEVER, if a judge errs during sentencing of mandatory sentences note your objection. There was no defense motion here and therefore a much stronger argument that you waive your objection by not stating it to the trial court.

5. Statement of Facts - A summary of the facts of the case with citation to the record. Typically, this will be in the following format: Sentence, cite. Sentence, cite. Sentence, cite. Example: The defendants were caught snipe hunting (Tr. 23).

6. Authorities & Argument - This is where you (1) state the law as it applies to your facts, (2) the standard the Court of Appeals should use in reviewing the error, and (3) how the facts should have been dealt with in accord with that law. I like to break this up  in two sections for each error. I first lay out the law and standard under an Authorities section and then lay its proper application under an Argument section.

7. Conclusion - Brief summary of all the things you are right about and then STATE THE RELIEF you are asking for. It doesn't do much good to make the most perfect argument ever seen in the annals of Virginia's history if you don't ask anything to be done with it. After all, you could just be asking the Court of Appeals to make the judge be nicer to you. You could be asking for a writ of mandamus requiring the comp board to actually pay you a decent salary.. They don't know. They're just simple appellate judges who need these things spelled out for them. Typically, relief asked for will be an overruling of the trial judge and a return to the trial court for further proceedings.

There is no listed order for the sections of the petition, so you can exercise some discretion. Just don't be stupid about it. Remember, if the Court of Appeals rejects your perfect argument because your first section was the Conclusion and your last was your Assignments of Error you lose. You don't get to appeal to the Virginia Supreme Court and get a ruling that essentially says "Yes, it's stupid, but it's within the rules. Remand." You Lose.

8: Contact Information - Somebody's Bar number, phone number, address,, and email has to go on the petition. If you're proud of your work put yours. If you're not then there's always the newest kid in the office - he'll never notice. 
(and for those of you too literal minded to realize that's a joke - That's A Joke - put your dang name on your work).

9. Certification - You must certify when you sent a copy of the petition to defense counsel, whether you want to state orally why the petition should be granted, that the number of words in the petition is less than 12,300 (state the number in the petition exactly)(this last requirement is from Rule 5A:4), and that 4 copies have been sent to the clerk of the Court of Appeals. This last one doesn't seem to be required, but everybody does it anyway.

Other things to remember: Don't forget the format requirements under 5A:4. Font must be 12-point or higher. Paper must be 11.5 X 8". Double space your text except for Assignment of Errors, headings, quotes, and footnotes. Don't screw with your margins. Use black print on white paper.

Almost all of that comes out of the early days of computer printing when petitions and briefs were limited by page length instead of word count. I wouldn't expect those problems to surface much in modern days.

Interestingly, the Court of Appeals has not limited its font types like the Virginia Supreme Court has. I'd suggest keeping it to easy to read fonts such as the VaSC had previously limited its filings to (Arial, Verdona, and Courier) especially if you're going to keep your font at 12-point. They're not pretty fonts, but they're easily readable even after you've already read thirty briefs that day. The pretty  fonts (Times New Roman, Palatino Lynotype, &cetera) look better, but the serifs and swirls all blend together if you're over 35 years old and have been reading for an hour or two. [As an aside, the VaSC is going to regret allowing these fancy-blur together fonts. All the young attorneys will use them to impress the Court. All the older attorneys will use them to impress the client. All the Supreme Court Justices will go blind trying to read them (unless maybe the VaSC's requirement of 14-point font saves them.)]

And now I've taught you all the basics of filing a prosecutor's appeal to the Court of Appeals of Virginia. Go forth, be fruitful, and appellefy.