Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

COURT RAISES BAIL ON MULTIPLE ROBBERY DEFENDANT AT BAIL APPEAL HEARING

This is a case of “be careful what you ask for”. Many defendants who are being held on bail which they deem unfair desire a hearing at which to appeal said bail.

It’s an understandable and reasonable request. Sometimes, though, an attorney suggests that the timing is not “quite right”. It is often a good idea to listen to such an attorney assuming he or she has some experience in the criminal justice system.

Because sometimes things can go horribly wrong.

Take the example of 42-year-old James Tarjick Jr. of Becket (hereinafter, the “Defendant”) for example. He and his brother were charged with breaking into more than 100 homes in western Massachusetts. He has pleaded not guilty to 24 charges.

His brother, Aaron, is already in prison on unrelated child rape charges.

The Defendant was not satisfied with the original bail set at arraignment.

The Defendant decided to appeal the matter.

The Defendant, at the appeal, requested that the court lower his bail to $5,000.

WCVB tells us that, during the bail argument, the Defendant’s attorney told the court that his client owned a house and had posted $10,000 bail on similar charges in Berkshire County.

First of all…not always great to draw a lot of attention to the fact that you client is facing similar charges elsewhere and had already been able to post twice as much bail there as he is asking for here.

It is not a great idea to call attention to certain details which your client has already given a contradictory statement to the Department of Probation. Under oath.

The judge apparently happened to notice that the Defendant had allegedly neglected to tell Probation that he owned a home.

Said statements to the Department of Probation are signed under the pains and penalties of perjury.

The judge called the information the Defendant had provided to Probation “suspect” and set bail at $500,000.

    Attorney Sam’s Take On Bail Appeals

A word about the general process as to bail is appropriate here.

A criminal defendant comes before the court for the first time at an Arraignment. It is also the moment when the case magically appears on the defendant’s criminal record (or “CORI”) to plague for years to come…whatever the result.

This is when the issue of bail is raised for the first time at a bail hearing. In most cases, the issue is whether the defendant is likely to return to court for future court dates. In some matters, the “threat to society” is an issue…but that is another issue.

If the defendant is not satisfied with what the court ordered for bail, especially if the matter is in district court, the defendant may appeal the matter before a superior court judge.

Most people do not realize it, but a bail appeal hearing is not without risk. Just because the defendant requests that bail be lowered, the court is not left with only the choices of lowering it or keeping it the same.

The court can raise the bail…regardless of whether the prosecution requests it or not.

The judge has the power, on its own, to take certain actions. Mandating bail amounts and conditions is one of them. This is true whether the bail hearing is an appeal (as it was in this one) or the original bail hearing at an arraignment. The court is bound by neither party as to what judgment to make.

The Defendant is really stuck in this matter because the bail was raised at the APPEAL. This means that, absent special circumstances, that bail is not likely to be re-addressed unless there are either meaningful changes in the case against him or if there is a successful motion for reconsideration made by the defense.

I think we can be fairly sure that the Commonwealth is not likely to make such a motion.

Like most things in the Criminal Justice System, a bail hearing, as well as the appeal of same, is not risk-free. Yet another reason why a defendant in such a situation needs the aid of an experienced defense attorney…as well as to listen to said attorney’s advice.

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