MISSOURI BAIL BOND INFORMATION
by John Osgood, Esq
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In federal cases the rule of thumb is you either are detained without bond period, or you are released on a signature bond (your own signature and perhaps that of a family member sometimes pledging assets such as real property). It is an extremely rare exception indeed where an actual bail bondsman would become involved in a federal case, so this discussion focuses on the common daily issue of bail in a state case.
Article I, Sections 20 and 21 of the Bill of Rights of the Missouri Constitution provide for the right to bail in all state cases except capital murder cases where the proof is evident or the presumption of guilt is great. The mere charge of capital murder, absent the latter proof or presumption, may still entitle the accused to be released on bail. In non-capital cases the bail may not be excessive and may only be set at a sufficient amount to ensure the presence of the defendant for trial and to protect the safety of the community.
When arrested and charged, the natural tendency is to immediately start a frantic search for a bail bondsman to get the loved one or family member released on bond at the earliest moment. This is more often than not a wrong and bad decision for several reasons. The very first person that should be contacted is a criminal defense attorney. The following bullets explain why.
ATTORNEY ADVICE: Early advice from a competent
defense counsel is an absolute must and should take precedence over all
other considerations including bond. It will often make the difference
between ultimate conviction on a major charge and acquittal or a plea to a
much lesser offense.
REDUCING AN EXCESSIVE BOND: In a great many instances
the bond will be set unfairly high and can be reduced to a more manageable
amount by the attorney. This can be accomplished very early in
proceedings shortly after arrest.
FEES CHARGED BY BONDSMEN: Bondsmen will typically
charge a 10% fee that is non-refundable and the bond fee will only cover
that case filed in that county at that time unless there is a very clear
written agreement to the contrary. So if the bond is $50,000, the
bondsman will want $5,000 that is then simply gone forever as a cost
attributable to the service provided by the bondsman. Also, an attorney will likely
have an immediate read, particularly after an initial consult with the
client, on whether there may be charges in other
jurisdictions that might affect the overall bond situation. Bondsmen,
on the other hand, are not attorneys, so there is no privilege and there is
therefore a serious risk and danger in discussing the alleged offense with
POST YOUR OWN 10% CASH BOND: Bonds are generally set
at a specified cash amount by the court. In Missouri, the defendant is in most
instances entitled to be released upon payment of a 10% cash fee paid to the
Court Clerk as the bond. This money, unlike money paid to a bondsman,
is then refunded to the defendant at the conclusion of the case. As a
caveat, the defendant himself is
legally the owner of the bond, regardless, of who helped him
DUAL USE OF YOUR MONEY AND BOND ASSIGNMENTS: Most
attorneys would formally take what is called a "bond assignment" which is a document
executed by the defendant that states that after the case is over the bond
posted by the defendant or a family member is paid by the court to the
attorney to be used as attorney fees. This was filed in Court and the
bond money was then returned to the attorney. This enabled the defendant to
save the fees that would otherwise be paid to a bondsman and instead apply
the money to attorney fees for a retained attorney. This has changed
to some extent in some counties, notably Jackson County, where the attorney
is required to first obtain the approval from the assigned trial judge prior
to using this procedure; however, it appears to still be an option with a
few additional steps and complications added. You should discuss this
with your attorney before doing this.
PUBLIC DEFENDERS AND CONSEQUENCES OF POSTING BOND:
Generally speaking, as a rule of thumb, courts will not permit a
defendant to have an appointed public defender if the defendant has already
paid a bondsman to get released on bail under the assumption that if the
person has sufficient funds to defray the cost of bond, then that person
must be able also to hire their own counsel. While many public
defenders are quite well qualified, there are also those who lack
experience. Add to this mix the fact that the public defenders are
faced with a case load that some critics say far exceeds their ability to
provide adequate representation and you should conclude that the better
approach is to FIRST immediately hire a good private criminal defense
attorney. Then with his or her help address the bond issues.
ATTORNEY WON'T ACCEPT BOND ASSIGNMENT:
This too will be a rare situation. However, there may be occasions for
whatever reason an attorney will not be willing to accept such an
arrangement. If so, this is a situation in which a second opinion from
another qualified criminal defense attorney is probably warranted. If
the answer is the same, then the only choice is seek the services of a
bondsman. If money is no issue, this is of course not a problem.
Unfortunately, for most, money is a major issue and factor in a criminal
PRUDENT ALLOCATION OF OR LACK OF RESOURCES: As already discussed, if you are released on bond you will likely not be provided with a public defender. Depending on the nature of the offense, the amount of bond involved, and the projected attorney fees, a couple of hard decisions need to be made. ONE, while harsh as it sounds, if no attorney is willing to accept a bond assignment, the defendant may wish to simply remain in custody until trial, push for a speedy disposition, and use all available funds to hire the best possible criminal defense attorney to defend the matter. TWO, if lack of money is a deciding factor, the only alternative probably is to remain in custody and avail yourself of the public defender and pray for the best.
RECENT JACKSON COUNTY MISSOURI BAIL REFORM STEPS: Following an unfortunate incident in Jackson County in March of 2010 where a released defendant killed a child in a subsequent high speed chase after having been arrested and released on a number of prior occasions for "driving while revoked", the Jackson County prosecutor announced an across board rule on bail recommendations for anyone charged with such an offense. This now appears to have been nullified in large measure by a rather detailed Jackson County Administrative Order issued by the Chief Judge which sets specific guidelines for prosecutors and defenders when it comes to bail. The order adds clarity and establishes some long needed reasonable rules on how to approach this sometimes thorny subject of balancing constitutional rights to bail and presumption of innocence against issues of threat to the community and flight risk. The full order can be reviewed at: Administrative Order.
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