Wednesday, December 28, 2011

Release of accused murderer breaks up bail profits

Brief points out procedural errors

Reporting by R.S. Gates
Story by The Legendary Jim Parks

Waco – A Waco defense attorney broke up a long-standing illegal practice of courts and prosecutors that benefits bondsmen and their insurance carriers.

Here's how the event took place.

In the intense temperatures of this past August's heat wave, at least four shots rang out, leaving a young east Waco man dead.

Police jailed Steven Jay Peace, Jr., charging him with the murder of Emuel Bowers, III.

But more than 90 days later, the accused killer still languished in the McLennan County Jail – unindicted for the gunpoint robbery and slaying.

Under the terms of the procedural rules that govern criminal prosecutions in Texas, he was eligible to be released either on his personal recognizance, or on an amount of bond he could afford.

He made an application for a writ of habeas corpus under those rules on December 7.

A Grand Jury on December 9 indicted the 20-year-old accused murderer with the additional charge of aggravated robbery, an offense which could be used to enhance the charge of murder to that of capital murder, and defense attorney Alan Bennett filed a brief in 19th District Court seeking his release on two $50,000 personal recognizance bonds which require no fees.

In the annals of McLennan County justice, it's a first-ever occurrence of a trial court releasing an offender after an indictment through a personal recognizance bond, something two key subsections of the Texas Code of Criminal Procedure allow, backed by numerous appeals court holdings.

When Mr. Peace filed his application for release on a Writ of Habeas Corpus on Dec. 7, he had been held for more than 90 days. He was entitled to be released, but following the indictment on Dec. 9 for robbery, he was held in lieu of a surety bond – something which is ordinarily secured by a cash fee.

According to Mr. Bennet's brief, a case decided by the Texas Court of Criminal Appeals held that “a stratagem of serial charging...may not be used as a subterfuge to imprison a citizen who, though accused is still presumed innocent under law.”

Who benefits from requiring the post-indictment bonds? Bondsmen and insurance carriers derive non-refundable fees from such a practice.

“It has been the practice of the distict courts of mcLennan County for nearly a decade to require defendants who are released on a pre-indictment bond to post a new bond following indictment...” Mr. Bennett argued. “If the indictment was not presented during the term specified in the bond, then the bond was no longer enforceable.

“In petitioner's case, this concern is not warranted because his bond will be made after the indictment.”

Here is why.

According to the Texas Code of Criminal Procedure, a bond posted during a criminal proceeding is sufficient during the life of the litigation.

“Moreover, two courts of appeals have held that a trial court may not require a defendant to post a new bond after being released on a PR bond under article 17.151 because the defendant was subsequently indicted,” Mr. Bennett wrote in his application for the writ.

Mr. Peace is presently living at home in Hewitt, his whereabouts monitored through an electronic bracelet, his compliance with a condition precluding any use of drugs ensured by random testing by court officials. He is strictly enjoined to not own or possess a firearm.

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