As a former prosecutor, I was usually not aware of a bond violation when I went to the courthouse with a stack of cases. I would go to court prepared to discuss the case with the defense, but was not updated on bond violations. I would be surprised when a case was called and the judge started grilling the defendant about a violation. The judge would then turn to me as a prosecutor and ask what I thought about the violation.
As a young prosecutor, I would usually take the opposite opinion of whatever the defense lawyer was saying as if I really had a stake in the case. Sure, as a prosecutor it's our job to prosecute and uphold the law, but if the defendant is violating his bond, is it REALLY our business? It has nothing to do with the original incident or the outcome of the case.
Looking back I was probably too harsh on defendant's without knowing the full story. A positive alcohol test, drug test, failing to show up for a court requirement; most of the time the defendant probably did technically violate, but I failed to really think beyond the allegation itself, and the other side of the case.
Things were different if the defense attorney talked to me beforehand and tried to build consensus with me. If I was aware of the issue , I would be more neutral if I had some time to think about it and hear out the other side, but being in the dark and prompted to respond, it was just easier to GO HARD after the defendant and play the anti-defense role. In a way it's how prosecutors are trained.
Based on that experience as a prosecutor, I handle these bond violations much differently than other attorneys I have worked with in my past role. My plan is two-fold for a bond violation in Michigan:
1. We come to court with something new. I don't let my client simply show on a bond violation and beg a judge to go easy on them; that's not doing my job, but that's what most other attorneys do. Many lawyers think that a client's words become magical if they come from an attorney's mouth; that's such a lazy approach. Your client is relying on your to have a plan, so have a plan!
If it's an alcohol violation or a drug violation, well I am already getting my client on more frequent testing; if it's alcohol we are probably on a portable daily device already. Up the AA, jump into counseling, do an Impact Weekend, heck maybe you need to check into rehab. What's a judge going to do, grab you out of inpatient treatment? No.
I punch my client right in the gut and "punish" them before the judge has a chance to do it. A client can handle my punch, but may not be able to handle going to jail, losing out on a dismissal deal offered, because the judge will no longer accept it.
When we walk into court we can take a lot of wind out of the judge's fury by showing that we're already taking steps to address the violation. Sure the judge may still put on a show and act disappointed or angry, but we can't change what happened, why are we wasting our time focusing on that? Well if you don't bring nothing new to the table you're only going to be talking about past events. What's the judge going to say if put new items into place?
You shouldn't have stepped up in a big way to address it yourself? No way.
We can usually pause, reflect and buy some time. We may be able to push a potential violation off until the end of the case and "see how the client does". It really depends on the original charge and the violation, but there's a major opportunity to turn a losing hand into a survival situation where you're back on your feet.
I've done this many times. Example being the following:
Let's say the client is charged with assault. They are arraigned and told to refrain from the use of alcohol. Between the arraignment and pretrial my client is randomly tested for alcohol and blows positive. For most cases, the client is in big trouble here; not only do they have a serious charge, now they violated a court order. A judge can revoke bond and stick them in jail, and it might sour the negotiations with the prosecutor if the client is already screwing up.
I would immediately turn the case into not only an assault case, but an alcohol case. My client would jump into an alcohol assessment and evaluation, jump into AA meetings and go on a daily testing device. Over the top? Maybe, but what's the alternative, spending a weekend or more in jail and losing out on a potential great deal? If you screw up, take ownership and do something about it, don't just beg the judge to look the other way or apologize. That's how people ruin their future by screwing up and not taking on the responsibility of their decisions. You are already in court for something negative, don't make it worse. If you're drinking on bond against a court order, we have things to work on. By putting these items into place, a judge is likely to adjourn the bond violation until the conclusion of the case and could essentially do a "time served" on the violation if he/she sees clean tests for 30-60 days etc. Punish yourself and a judge doesn't need to do it.
2. The second part of the plan is to talk to the prosecutor before the case is called and provide them information about the violation and the steps above. I was a very laid back and amenable prosecutor, but if I was caught off guard I was going to take the easier/less risky route of just piling on the defendant and appearing to be disappointed about the violation and "seeking further justice" and "punishment" because most prosecutors just assume all defendants are "criminals" and can't be trusted.
If you explain to the prosecutor what's going on, show them the steps you've taken to address the violation, it's very possible to turn them into a neutral party rather than an opponent. It's even possible to have the prosecutor back your steps and tell the judge the same.
If both the defendant and prosecutor both want the judge to put their sword down and give more, delay a decision, back off, the judge is more likely to buy into the plan. It's so important to try to build consensus with the prosecutor. Great to say "your honor, the prosecutor and myself had a very positive conversation on this matter, and it sounds like they are open to X or in agreement with X. If the prosecutor isn't seeking anything and they are in agreement with our path, things are going to be a lot easier to navigate with the judge.
As a young prosecutor, I would usually take the opposite opinion of whatever the defense lawyer was saying as if I really had a stake in the case. Sure, as a prosecutor it's our job to prosecute and uphold the law, but if the defendant is violating his bond, is it REALLY our business? It has nothing to do with the original incident or the outcome of the case.
Looking back I was probably too harsh on defendant's without knowing the full story. A positive alcohol test, drug test, failing to show up for a court requirement; most of the time the defendant probably did technically violate, but I failed to really think beyond the allegation itself, and the other side of the case.
Things were different if the defense attorney talked to me beforehand and tried to build consensus with me. If I was aware of the issue , I would be more neutral if I had some time to think about it and hear out the other side, but being in the dark and prompted to respond, it was just easier to GO HARD after the defendant and play the anti-defense role. In a way it's how prosecutors are trained.
Based on that experience as a prosecutor, I handle these bond violations much differently than other attorneys I have worked with in my past role. My plan is two-fold for a bond violation in Michigan:
1. We come to court with something new. I don't let my client simply show on a bond violation and beg a judge to go easy on them; that's not doing my job, but that's what most other attorneys do. Many lawyers think that a client's words become magical if they come from an attorney's mouth; that's such a lazy approach. Your client is relying on your to have a plan, so have a plan!
If it's an alcohol violation or a drug violation, well I am already getting my client on more frequent testing; if it's alcohol we are probably on a portable daily device already. Up the AA, jump into counseling, do an Impact Weekend, heck maybe you need to check into rehab. What's a judge going to do, grab you out of inpatient treatment? No.
I punch my client right in the gut and "punish" them before the judge has a chance to do it. A client can handle my punch, but may not be able to handle going to jail, losing out on a dismissal deal offered, because the judge will no longer accept it.
When we walk into court we can take a lot of wind out of the judge's fury by showing that we're already taking steps to address the violation. Sure the judge may still put on a show and act disappointed or angry, but we can't change what happened, why are we wasting our time focusing on that? Well if you don't bring nothing new to the table you're only going to be talking about past events. What's the judge going to say if put new items into place?
You shouldn't have stepped up in a big way to address it yourself? No way.
We can usually pause, reflect and buy some time. We may be able to push a potential violation off until the end of the case and "see how the client does". It really depends on the original charge and the violation, but there's a major opportunity to turn a losing hand into a survival situation where you're back on your feet.
I've done this many times. Example being the following:
Let's say the client is charged with assault. They are arraigned and told to refrain from the use of alcohol. Between the arraignment and pretrial my client is randomly tested for alcohol and blows positive. For most cases, the client is in big trouble here; not only do they have a serious charge, now they violated a court order. A judge can revoke bond and stick them in jail, and it might sour the negotiations with the prosecutor if the client is already screwing up.
I would immediately turn the case into not only an assault case, but an alcohol case. My client would jump into an alcohol assessment and evaluation, jump into AA meetings and go on a daily testing device. Over the top? Maybe, but what's the alternative, spending a weekend or more in jail and losing out on a potential great deal? If you screw up, take ownership and do something about it, don't just beg the judge to look the other way or apologize. That's how people ruin their future by screwing up and not taking on the responsibility of their decisions. You are already in court for something negative, don't make it worse. If you're drinking on bond against a court order, we have things to work on. By putting these items into place, a judge is likely to adjourn the bond violation until the conclusion of the case and could essentially do a "time served" on the violation if he/she sees clean tests for 30-60 days etc. Punish yourself and a judge doesn't need to do it.
2. The second part of the plan is to talk to the prosecutor before the case is called and provide them information about the violation and the steps above. I was a very laid back and amenable prosecutor, but if I was caught off guard I was going to take the easier/less risky route of just piling on the defendant and appearing to be disappointed about the violation and "seeking further justice" and "punishment" because most prosecutors just assume all defendants are "criminals" and can't be trusted.
If you explain to the prosecutor what's going on, show them the steps you've taken to address the violation, it's very possible to turn them into a neutral party rather than an opponent. It's even possible to have the prosecutor back your steps and tell the judge the same.
If both the defendant and prosecutor both want the judge to put their sword down and give more, delay a decision, back off, the judge is more likely to buy into the plan. It's so important to try to build consensus with the prosecutor. Great to say "your honor, the prosecutor and myself had a very positive conversation on this matter, and it sounds like they are open to X or in agreement with X. If the prosecutor isn't seeking anything and they are in agreement with our path, things are going to be a lot easier to navigate with the judge.
