Articles Posted in Bail and pretrial detention

The Orlando shooter’s widow, Noor Salman was denied bail pending her upcoming trial. Often, in a serious case involving death, a defendant will be held without bail as the Court concludes no amount of money will ensure the person’s appearance in court.  Since bail is not meant to punish someone prior to trial, given the presumption of innocence, in a high profile case it put a judge in a difficult position as to whether to set a bail.

Her attorneys are planning to argue that Salman is not a public safety threat, and is not at a risk of fleeing before her trial date approaches. In this case, family members have offered their homes as collateral in desperate hopes to get Salman out on bail.

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Oman Mateen was the gunman and husband to Salman who walked into a Florida nightclub and shot and killed 49 people, wounding an additional 53 individuals. The upcoming trial is in regards to Salman’s alleged claim that she supported her husband’s terroristic plans; Salman was originally arrested back in November after authorities suspected that she helped her husband plan the attack on Pulse Nightclub. While the prosecution has not released a bulk of the evidence they have collected on Salman, an attorney on her case, Haitham Amin, noted that it appears as if Salman is going to be charged with being present when her husband was planning the attacks.

A Washington State University professor is currently developing the first portable breathalyzer that tests for marijuana substance consumed by a driver. Washington law enforcement agencies are particularly enthusiastic about the test, as more and more drivers are operating while under the influence of marijuana in one of only two states who have legalized marijuana.

Currently, law enforcement can only test for marijuana consumption through blood tests at a lab. These tests are time consuming, complicated, and expensive. The new marijuana breath test is designed to detect a primary chemical ingredient – THC – in the driver’s breath immediately after the driver is pulled over. A portable breath test for marijuana will enable officers to more accurately identify drivers who operate while under the influence of marijuana, by allowing them to rely on the breathalyzer’s measurements rather the officers’ own observations.

Like most alcohol breathalyzers, marijuana breathalyzer devices will likely be susceptible to error. There are currently several ways for an experienced criminal defense attorney to challenge the results of an alcohol breathalyzer – from the manner in which the test was administered to the significance of the chemical ingredients that a breathalyzer actually detects and measures. These challenges could also be expected in a prosecution relying on a marijuana breathalyzer test result. But still, the invention of a marijuana breathalyzer is likely to lead to substantially tougher prosecution of this type of offense – not only in Colorado and Washington where driving while under the influence of marijuana is explicitly a crime, but in other states as well. USA Today along with several media outlets reported on this story.

Bristol County District Attorney Sam Sutter’s proposal to move trials forward even if the defendant fails to appear would be declared unconstitutional by the Massachusetts Supreme Judicial Court. In an effort to decrease the number of defendant’s who fail to appear in court, the Bristol County District Attorney has proposed requiring defendants to sign waivers allowing trials to proceed without their appearance in the event of a default. This waiver would clearly be unconstitutional as courts indulge every presumption against waiver of constitutional rights. The so-called waiver for defendants that default would involve defendants waiving numerous constitutional rights, including the right to confront their accuser, right to testify, elect between a bench or jury trial and the right to effective assistance of counsel and a fair trial.

As a Fall River criminal lawyer, I can understand the frustration of the district attorney that cases cannot be resolved as a result of defendants failing to appear in court. However, District Attorney Sutter’s proposal is an unconstitutional and would ultimately be unworkable. First, a defendant should simply refuse to sign the so-called waiver form. It would be inappropriate for a judge to raise or set a higher bail based on the district attorney attempting to obtain a waiver of a defendant’s Constitutional rights.

As a Bristol County criminal lawyer, it would be inconceivable to have a trial without the defendant being present. First, there are certain fundamental decision that a criminal lawyer cannot make without consulting with the defendant, whether to proceed with a bench or jury trial and whether or not the defendant testifies. Clearly, allowing a trial to go forward without the defendant would deprive the defendant of the opportunity to testify and deny the defendant a fair trial. Further, there would be a natural tendency for the jury to find a defendant guilty based on the failure to appear as the jury would likely speculate as to the reason for the defendant not appearing.

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