The most major factor a judge must consider in a gun arraignment is the government’s requests. When the government asks for a hold under the statutes, the judge must look at a Gerstein affidavit. The police officer puts together and signs under oath the information identifying the initial evidence that led them to arrest the person and charge them with the crime.
The identifying information is from the police report and does not have the names of any witnesses. However, it does say whether there are witnesses to the crime and the information the police gathered that establishes why they arrested the person for the crime. The judge looks at the affidavit and decides whether there is probable cause. If there is probable cause and the government has sought the mandatory hold, the judge has no choice and must hold the person.
If the government does not request a hold or the charge is a misdemeanor gun offense and the hold does not apply in a misdemeanor case, the court looks at the person’s criminal background. The judge considers the person’s ties to the community and whether they have a history of failing to come to court for a scheduled appearance.
If you have been charged with a gun offense, contact a DC gun lawyer for assistance during the arraignment and to fully understand how the Bail Reform Act may affect your DC gun arraignment.
The Bail Reform Act was enacted years ago to achieve fairness in bond. There is a history of the criminal justice system being quite unfair to minorities in this country, particularly in major metropolitan areas. Bail can be unfairly high for many minorities and is extremely burdensome. In other words, a person is unable to post a bail while a rich person is able to afford more. Bail became a burden on the poorer defendants and was unfair.
To correct the unfairness, bail was eliminated. An individual can be held and not released on a citation from the police department, but instead held by the police and brought to the marshals at the Central Cell Block. They are taken to the marshals at the courthouse and brought before the judge. That usually means the individual was arrested for a felony or is on probation, parole, or release for another pending case. In those circumstances, the person is held initially by the police before going to court.
When a person is brought forward on a felony charge, the arraignment is called a presentment. The person is brought in front of the court and the judge cannot release the person on bond because there is no more bond per the Bail Reform Act. When the charge is a felony gun charge under the statutes in DC and the government can establish probable cause that this individual committed the crime as alleged against them, the court has no choice but to hold them for three days.
When an individual is arrested for another crime that does not have a mandatory hold and they are on probation, parole, or have another pending case, the government can ask for a hold for five days. This is a discretionary hold that the court may or may not impose.
For example, if an individual is on probation for a relatively minor offense like unlawful entry, it is a misdemeanor, not a violent offense. It does not involve a weapon; it is the equivalent of trespassing. If the individual is on unsupervised probation and is arrested for a misdemeanor drug offense, possession of a small amount of ecstasy, the police could hold them in custody because the individual is already on probation.
Being arrested again can be a violation of their probation. They can be revoked and sent to jail and/or prison depending on the reason for their probation. The police almost always hold that person and let the judge decide their fate.
The prosecutors of the US Attorney’s Office may request that the court hold the person because they are on probation. There is enough information from the police to establish probable cause and the government asks the court to hold the person in custody until their next court hearing.
The judge has discretion in that situation to decide to release the individual with certain conditions of release, not including a bail. They can order the person to wear a GPS ankle bracelet or put them on house arrest, weekly check-ins, or weekly drug tests. The court can also decide to hold the individual in custody. The judge looks at how the person is doing on probation, their current charge, and the original charge. Other than the new arrest, the judge might release the person with the conditions that they check in with the probation department, follow all their directives, and show up in court.
When the situation does not meet the statutory definition that invokes the mandatory hold, the judge can exercise discretion to keep an individual in custody. Many factors are considered when a judge decides whether to release or hold an individual. If they decide to release them, the judge decides the conditions for release. In every case, the judge evaluates the danger to the community should the person be released and whether they are a flight risk.
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