You’re having a really bad day. You figure it would be a good idea if you clear your head by going for a brisk walk around the block. While on your walk in your neighborhood, a car pulls up next to you. The passenger lowers his window and yells some obscenities at you. If you’re African American, let’s suppose he calls you the “N word.” If you’re Jewish, he calls you a “Kike.” If you’re Latino, assume he calls you a… You get the picture. Naturally, your blood boils and you choose to react. You reach your hand into the passenger window and smack the passenger, preventing him temporarily from hurling another abhorrent slur at you. The car drives off and, moments later, cops pull up and arrest you.
Imagine how you’d feel when you learn that the criminal charge levied by Officer Friendly is not a simple misdemeanor battery, where you’d be able to get out of jail by posting a bond of approximately $1500. Rather, you learn that the charge is burglary with a battery, a life felony, which is non bondable. That means, at your first appearance before the judge, typically within 24 hours of your arrest, the judge makes a probable cause finding after reading the arrest report and then announces that you’ll be held with no bond. What? Is that even possible?
Not only is the above scenario possible, but it’s exactly what happened to one of my South Florida criminal clients. He was a teenager who reacted to being called the “N-word.” He was charged with burglary with a battery because a portion of his body entered the conveyance (car) of another with the intent to commit a battery therein. Only a portion of your body, like a hand, is all that is necessary to justify a charge of burglary under this scenario. I took over the case after the first attorney representing the African American teen couldn’t get him out of jail for weeks. Immediately after commencing representation, I was fortunately able to secure his freedom. After a lot of zealous advocacy, I was ultimately able to secure a very reasonable resolution of the case.
This unusual and seemingly unjust scenario gets played out every week, often times involving a number of different defendants. Just this past week, I had a client who slapped and kicked his ex-girlfriend. So that we are clear, what he is alleged to have done is wrong and problematic. He should face significant penalties for those actions, assuming he is guilty and it can be proven. The issue that I want to focus on is what happened to him when he attempted to get a bond.
Unfortunately for my client, he didn’t strike her while she was standing outside of her vehicle. That would have been a simple misdemeanor. Instead, he struck her after she sat down behind the wheel. That simple difference in where the battery took place, elevated the charge from a bondable misdemeanor to a non bondable life felony. He spent over a week in jail before we finally found a reasonable prosecutor to agree to a bond. Several prosecutors before her wouldn’t agree to a bond. If prosecutors don’t agree to a bond when a defendant is charged with a non bondable offense, then the next step is to have an “Arthur Hearing.” That’s like a mini-trial in front of the judge where the prosecutors have to prove that they have significant evidence to hold the defendant. Arthur Hearings typically take weeks before judges will set them. Therefore, had we and the prosecutor not come to an agreement concerning bond, my client would have remained in custody for quite some time. That would have ensured that he would have lost his job and fell way behind on his $2,000 a month child support for his three children.
I’m writing about this scenario because it happens frequently and it makes no sense. I am confident that the legislators weren’t thinking of this scenario when making burglary with a battery non bondable life felony. Rather, they were thinking about the offender who brazenly enters a person’s house in the middle of the night, for example, and physically touches and/or hits any of the victims therein. Holding that criminal with no bond makes perfect sense in light of the severity of his/her actions. On the other hand, striking and/or touching someone outside of their vehicle vs. inside the vehicle shouldn’t make much, if any, difference. It certainly shouldn’t justify elevating the charge from a misdemeanor to life felony. It also shouldn’t put a defendant in a position where he is held with no bond. Every reasonable prosecutor I’ve spoken with agrees with my thought process on this issue. Unfortunately, most don’t use their discretion and do the right thing when confronted with this scenario. Hopefully this article gets read by someone with the power to make some changes to the law.