How a Massachusetts judge decides whether to hold someone before trial

NEW BEDFORD Massachusetts law starts from release: when a person is arrested, state law tells a judge or clerk to release the defendant on personal recognizance, a promise to come back, unless the judge or clerk decides that release will not reasonably assure the person returns to court.

For some charges, prosecutors can ask for more. Under Chapter 276, Section 58A, a district attorney's office can move to have a defendant held until trial because of the danger the person poses, at what district attorneys' offices call a dangerousness hearing. Federal court, under a separate law, has a similar process of its own.

Two different questions

Ordinary bail under Section 58 asks whether the person will come back to court. The judge or clerk weighs the charge, the possible penalty, family ties, financial resources, employment, any record of convictions and any history of missing court dates, among other factors listed in the law. Bail may be set no higher than what would reasonably assure the person's appearance "after taking into account the person's financial resources." When bail is set at an amount likely to keep a person in jail long term because the person cannot afford it, the law requires written or recorded findings explaining why neither nonfinancial conditions nor an affordable amount would reasonably assure the person's return, and how the amount was figured.

Section 58A asks whether any conditions of release "will reasonably assure the safety of any other person or the community." A judge holding someone under that section cannot do it by setting bail too high to pay; the law bars a financial condition that results in the person's detention.

Which charges qualify

The law lists the charges that qualify, starting with felonies that involve the use, attempted use or threatened use of physical force against another person, or that by their nature carry a substantial risk of it, with burglary and arson named. It also covers violations of abuse prevention and related court orders, charges involving abuse as the state's abuse prevention law defines it, drug offenses carrying a mandatory minimum of three years or more, a third or later violation of Chapter 90, Section 24, the section that covers operating under the influence, within 10 years of the previous conviction, and several firearms charges, among others.

How the hearing works

When a person is held under arrest on one of those charges and the prosecutor files a motion, the judge holds the hearing at the defendant's first court appearance unless either side asks for more time. Except for good cause, a defense delay may not exceed seven days and a prosecution delay may not exceed three business days. During a delay the person is held on a showing that there was probable cause for the arrest.

The defendant has the right to a lawyer, appointed if the person cannot afford one, and may testify, call witnesses, cross-examine witnesses who appear and present information. The rules of evidence used at trial do not apply, and the judge "shall consider hearsay contained in a police report or the statement of an alleged victim or witness." Before an alleged victim or a member of the alleged victim's family can be summoned to testify, the defense must show a good faith basis for believing the testimony would be material and relevant.

The judge weighs the factors the law sets out, including the nature and seriousness of the danger, the circumstances of the charge, the potential penalty, family ties, employment, any record of convictions, drug dependency, whether the person was already out on bail, probation or parole, and any history of abuse prevention orders.

To order detention, the judge must find by clear and convincing evidence that no conditions of release will reasonably assure safety, and the order must include written findings and reasons. Short of that, the judge can release the person on conditions, which the law says may include a curfew, limits on travel or associations, staying away from the alleged victim and witnesses, reporting regularly to a designated agency, not possessing weapons, or treatment. The law also states that nothing in it limits the presumption of innocence.

How long a hold can last

A person held under Section 58A must be brought to trial "as soon as reasonably possible." Without good cause, the hold may not last more than 120 days in district court or 180 days in Superior Court, not counting delays excluded under the state's rules of criminal procedure. A judge can reopen the hearing before trial when new information or a change in circumstances has a material bearing on safety.

A defendant held by a district court judge can ask for a review, which goes to the Superior Court for the county where the district court sits if a judge is sitting there, or otherwise to the Superior Court of the nearest county where one is. The law says the Superior Court must hear the petition within five business days of its filing. For South Coast district courts, the home county court is the Superior Court in Bristol County or Plymouth County.

A separate path: revoking bail

Section 58 gives judges another way to hold someone already out on bail. If a judge finds probable cause that the person committed a new crime while on release, the judge decides whether release "will seriously endanger any person or the community." If so, and if holding the person is necessary to reasonably assure safety, the judge may revoke bail on the earlier case and hold the person without bail on that charge for up to 60 days.

In federal court

Under 18 U.S.C. 3142, which governs federal cases, prosecutors may seek detention in cases involving crimes of violence, offenses punishable by life in prison, drug offenses carrying a maximum of 10 years or more and other listed charges, and a hearing may also be held in any case with a serious risk that the defendant will flee or obstruct justice. The hearing is held at the first appearance unless delayed, which except for good cause means up to five days at the defense's request or three days at the government's, not counting weekends and legal holidays. A finding that no conditions will keep the community safe must rest on clear and convincing evidence.

Label: Reported by us, from the town's posted records.