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The bail-Setting on Manafort/Gates is Outrageous

It is outrageous and contra-constitutional that Paul Manafort and Rick Gates had to post millions of dollars in bail in lieu of custody in their white-collar crime indictments.  The norm for white collar is an own recognizance release, with possible surrender of passports.  Why?  Because pretrial release issues are defined solely by flight risk [except where clear and convincing evidence shows one deserves to be held without bail], solely by flight risk.

We mustn't put too fine an edge approaching the point, but a person is presumed innocent of all attributes of a charge in this Republic, absent the People proving guilt as to all the facts beyond a reasonable doubt. In re Winship (1970) 397 U.S. 358, 362-364; Betterman v. Montana (2016) --- U.S. ---, --- [136 S.Ct. 1609, 1613, 1614].

There has been no evidence presented to the public that either Manafort or Gates is a flight risk, and they really are not, especially without passports.  No evidence was submitted that they would not appear as ordered, when ordered, in Court, which is the only relevant issue under the Eighth Amendment.

{Yes, yes: there are cases where bail may properly be denied all together. United States v. Salerno (1987) 481 U.S. 739, 752-755.  Where bail is not to be set at all (i.e., preventive detention), the government has to prove, by clear and convincing evidence, following a hearing, that "no condition or combination of conditions will reasonably assure the appearance of the person...and the safety of any other person and the community...." Id. @742.  The court must consider "the nature and circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender, and the danger to the community." Id. @751-752 [emphasis added].  The operative words are "clear and convincing evidence [not wishful thinking nor biased inputs nor prosecutorial "we demand" nor "we hate the president"]" and "circumstances of the charges."  This is not even arguably a preventive detention case, and they are few and far between.  No one has suggested that bail is not appropriate here, nor has anyone even begun to carry the necessary burden for such an incident of oppression.}

So, once any release is deemed appropriate, as is the case here, then "[b]ail set at a figure higher than an amount reasonably calculated [to ensure the defendant's presence at trial] is 'excessive' under the Eighth Amendment." Stack v. Boyle (1951) 342 U.S. 1, 5 [emphasis added], cited app. in Salerno, supra @752-755.

Don't expand my words - I do not think either of these characters, nor many others in this administration, are innocent of the charges.  But that is not the test for this subject - bail can only be set in an amount necessary to guarantee appearance in Court, PERIOD; not for illustrative nor intimidating purposes for other probable suspects, nor to penalize presumptively innocent arrestees.

I suspect the magistrate-judge who set these outrageous bails was a judge or prosecutor in the California counties of San Bernardino or Riverside, because, from my experience [anecdotal and percipient], only there do we find stratospheric, Constitution-busting bail settings in this Republic.  When Florida resident O.J. Simpson was arrested for armed robbery and residential burglary in Las Vegas, he was originally held without bail, but then someone read the 8th Amendment and he was released on $125,000 bail, with surrender of passport.  There was no violence here, and Manafort lives close to, or in, the jurisdiction of trial, so his bail should be set accordingly.  That is, the only violence here has been to the Constitution, by way of this outlandish bail setting.

If the 8th Amendment is so blithely disregarded in this matter, what guarantee do we have that the 5th and 6th will be more faithfully honored?  For these defendants, or for you?

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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