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Federal Criminal Appeals: Sometimes the Defendant Can Be Released on Bail During the Appeals Process

Kish Law LLC

We do lots of criminal appeals, both in Federal Court and in the Georgia State Courts. On occasion, we ask the judge to allow our client to remain free on bail, or bond, while the case is appealed to a higher court. This is kind of tricky, in that the attorney must be well-versed in the intricacies of the Bail Reform Act, a 1984 law that kind of flipped the playing field when it comes to having a defendant released on bail. Perhaps even more tricky is the question of when the case usually calls for no bail, can the lawyer get around that by a part of the law that seems to permit release on bond if the case involves “exceptional reasons.” Beyond that is the question of who decides whether the Defendant’s case involves “exceptional reasons: the trial judge or the court of appeals itself? An opinion issued earlier today by the United States Court of Appeals for the Eleventh Circuit answers that question once and for all in federal cases arising in Georgia, Florida and Alabama. In cases that fall into the category of no bail during the appeals process, it is the district judge gets to first decide whether the case involves “exceptional reasons”, and thus can still let the Defendant stay out on bail. the case is United States v.Meister, and can be found here.

Meister was sentenced for having child pornography. His lawyers asked that be be permitted to remain on bond during the appeals process. The Bail Reform Act denies release for Defendants who appeal certain serious crimes. Defendants who violate the child pornography laws are thus prohibited from remaining on bail during appeal.

However, smart attorneys know that there is a way around the “no bail” rule in these otherwise very serious cases. By reading the various cross-references in the different sections of the Act, the lawyer discovers that if a Defendant appealing one of these serious cases can fulfill four criteria, then he or she is eligible for release on bail. The major criteria that comes up in these situations is whether the appeal involves “exceptional reasons” to permit the Defendant to remain on bond. I have used this method several times to try and convince a judge to permit my client to stay on bail. It has not worked every time, but it often is worth the effort.

In the Meister case, the Defendant is quite ill with cancer and is undergoing chemotherapy. The District Judge read the Bail Reform Act as saying that only the Court of Appeals can decide if the matter involves “exceptional reasons” that might justify letting Mr. Meister remain on bond during the appeals process. In the opinion issued today, the Eleventh Circuit reversed that holding. The appellate court decided that the trial judge erred in believing that he could not make the “exceptional reasons” determination, and sent the matter back down for such a ruling.

Again, lawyers need to closely read the laws that affect their clients. It now appears the Mr. Meister might be allowed to remain on bond during the appeals process.

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