The Jersey Lawyer

Last week, Lee Anthony Evans, who is accused of murdering five teenage boys in Newark in 1978, had his bail reduced by Essex County Superior Court Judge Peter Vazquez from $5 million to $950,000.  The reduction allowed Mr. Evans to make bail when his family posted three properties as sureties.  In deciding to reduce Ms. Evans’ bail, the judge cited to his strong ties to the community, his lack of a criminal record, and the lack of evidence against Mr. Evans.  Apparently angered by the judge’s decision, Acting Essex County Prosecutor Robert Laurino has urged legislators to change bail rules to allow judge’s to take into consideration the danger posed by the defendant to the community.  Senator Richard Codey said he would sponsor legislation to change bail laws.

Under the New Jersey State Constitution, all persons accused of crimes in the State of New Jersey are bailable.  The New Jersey State Constitution also prohibits excessive bail.  The Supreme Court of the United States has also held that bail set at a figure that is higher than an amount that is reasonably calculated to assure the presence of the accused at trial is excessive, and therefore violates the Eighth Amendment of the United States Constitution.  The rationale underlying these constitutional provisions is one of the cornerstones of our criminal justice system – that all persons accused of crimes are presumed innocent until proven guilty beyond a reasonable doubt.

Our courts, in applying these constitutional standards, have long held that the purpose of bail is to guarantee the presence of the defendant in court for all proceedings in the criminal case against the defendant until a final determination in the matter is reached.  Our cases have also held that “preventative detention,” which is the holding of the defendant in order to prevent him from committing future crimes, is not an appropriate consideration in setting bail.  More importantly, bail cannot be used as a way of punishing a defendant who has not yet been convicted of any crime, and may not be convicted at the conclusion of the case.

In order to help courts apply these constitutional standards in a practical manner, court rules have been adopted that guide judges in setting bail.  Under Rule 3:26-1(a), there are several factors that judges may considering in setting bail.  These factors are: (1) the seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature; (2) defendant’s criminal record, if any, and previous record on bail, if any; (3) defendant’s reputation, and mental condition; (4) the length of defendant’s residence in the community; (5) defendant’s family ties and relationships; (6) defendant’s employment status, record of employment, and financial condition; (7) the identity of responsible members of the community who would vouch for defendant’s reliability; (8) any other factors indicating defendant’s mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention.

Under statewide bail guidelines, judges are given a range within which to set bail depending on the type of crime charged; however, these guidelines are advisory in nature, and judges must examine the particular facts of the case in order to determine the proper bail to be set.  In cases other than first and second degree cases, unless the order for bail specifies to the contrary, a defendant can make bail by depositing in court cash in the amount of ten-percent of the amount of bail that was fixed and executing a recognizance for the remaining ninety percent.  Certain first and second degree crimes also carry additional bail restrictions.  These crimes are murder, manslaughter, kidnapping, sexual assault, robbery, carjacking, burglary, extortion, endangering the welfare of a child, resisting arrest and eluding, jury tampering, possession of weapons, weapons training for illegal activities, soliciting gang members, drug charges, and racketeering charges.  Anyone charged with one of these crimes must post the required amount of bail in the form of full cash, a bail bond executed by a licensed bail bondsman, or a bail bond secured by property located in New Jersey.  If the defendant has two other indictable charges pending at the time of his arrest, or two prior convictions for first or second degree crimes, or one prior conviction for murder, manslaughter, aggravated sexual assault, kidnapping or bailjumping, or was on parole at the time of arrest, then the presumption is that the defendant should post full United States currency cash bail.

The court rules, statutes, and guidelines dealing with bail issues are designed to provide uniform and fair application of the constitutional standards for bail.  In the Evans case, Judge Vazquez appropriately followed the bail guidelines and factors that a judge must consider in setting a bail in order to reach a fair bail reasonably designed for the legitimate purposes of bail – to ensure that presence of the defendant in court.  The prosecutor’s argument was that Mr. Evans poses a danger to society.  However, Mr. Evans has a clean criminal record, is being charged with a crime that occurred over thirty years ago based on little evidence, and has strong ties to the community.  Mr. Evans’ family posted three separate properties as a surety for the bail.

Having a defendant out on bail during the pendency or criminal proceedings is very important because it allows the defendant to participate in his own defense.  Also, bail gives real meaning to the principal that anyone accused of a crime is innocent until proven guilty by allowing the defendant to remain free in society until he is proven guilty beyond a reasonable doubt in court.  Therefore, anyone whose family member or loved one has been charged with a crime in New Jersey and is unable to make bail, should contact a New Jersey criminal defense lawyer for assistance in attempting to get a bail reduction and secure the freedom of the accused.