Archive for December, 2011

Dec
25

Posting an “Appearance Bond”

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Frequently asked questions about bonds and pretrial release in Arizona

 

What is an Appearance Bond?

Posting bond

An appearance bond, also known as a bail bond (bond) allows a person (the defendant) who is in custody (jail) to be released pending further court appearances. The purpose of the appearance bond is to guarantee the arrested person’s appearance at a time and place specified by the court. The amount of the bail bond varies with the seriousness of the charge and is set by the court.

Is it always necessary to post a bond?

No. Under certain conditions, the court will release a defendant without bond. The court may accept the defendant’s promise to appear at a time and place specified by the court. This is known as being released “Own Recognizance” and is typically seen in cases where people are charged with a DUI in Scottsdale, Arizona.   A defendant may also be released upon another person’s (designated by the court) promise to ensure the defendant’s appearance as required by the court. This is called a “Third Party Release.”

What will the court accept as bond?

The court will accept cash for the full dollar amount of the bond.  Most courts will accept cash, certified money orders, or cashier checks; however, not all courts accept personal checks, business checks, or credit cards. Contact the court or jail fort detailed information. Courts also accept paper bonds posted by bail bond agencies.

Who can post bond?

Everyone can post a bond paid in cash for the person who is charged with the crime.  Bail bond companies are able to file paper bonds which basically require them to pay in cash if the defendant thereafter fails to appear or otherwise violates the terms of their release.

What happens if the defendant fails to appear as ordered?

The court will schedule a bond forfeiture hearing and all parties involved will be notified of the date and time. Depending on the outcome of the hearing, the court:

A. May order the bond forfeited;

B. May also order a warrant for the defendant’s arrest:

C. May allow the defendant another chance to appear.

If a bond is forfeited, can the person who posted the bond get their money back?

No, so be sure to keep this in mind before posting a bond on someone else’s behalf.

What happens to collateral given to a bail bond agent should a defendant fail to appear and be court orders the bond forfeited?

The court will order the cash value of the bond paid by the bail bond company. Property given as collateral can be sold by bonding companies to provide cash for the bond, if necessary. Any contract regarding the collateral and/or cash deposits is between the bonding company and the person obtaining the bond.  The court cannot and will not intervene.

What happens if a defendant appears as ordered?

A. The court may order the bond be returned (exonerated) to the bond poster. Once the judge orders exoneration, the court prepares to refund a cash bond to the bond poster or provides written clearance to be given to a bail bond company. Once clearance is provided, the bail bond company initiates the release of collateral; or,

B. If the defendant posted the bond, the court may order that the bond be converted to pay fines, fees, surcharges, or restitution on the case at hand and/or other cases involving the defendant. The court does not need the defendant’s consent to order the conversion: or,

C. The court may order the bond be converted to fines fees, surcharges, or restitution on the case at hand and/or other cases the defendant may have IF the person, who posted the bond, not the defendant; agrees to the bond conversion; or,

D. The court may order the bond remain in effect until the defendant’s next appearance.

After the bond has been released, the bonding company should return title to the collateral used to secure the bond. You may need to supply the bonding company with a copy of the court order releasing the bond.

Definitions:

Bond Poster – Person who posts an appearance bond

Collateral – Property or titles given by a person to a bail bond agent who then posts the bond.

Convert – Use of the bond money to pay what the defendant was ordered by the court to pay. The order could include victim restitution, fines and surcharges, attorney fees, or jail fees

Defendant – Person charged with a criminal act.

Exonerate – Return of bond money to the bond poster.

Forfeit – Bond money is turned over to the city; county or state by the judge’s order.

Paper bond – The paper given to the court by the bail bond agent showing that collateral was given.

Be careful! The form used when bond is posted may have several options that allow the court to use the money to “Pay for the monetary obligations owed on this case and other cases this defendant may have in this court.” Please read the form carefully and only mark those statements that you agree with; you cannot change your mind later.

Categories : Criminal Law
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Dec
19

Bar Counsel requests a finding that Thomas testified falsely at his own disciplinary hearing

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In their recently filed proposed findings, bar counsel including the following:

408. Thomas and Aubuchon’s Testimony About Probable Cause to Charge Judge Donahoe. At the hearing in this matter, Thomas testified that he brought the bribery charge against Judge Donahoe because the Judge was an “accessory” to the “Mundell-Stapley-Irvine triangle.”674 Thomas stated that he charged Judge Donahoe as an accomplice “because he was repeatedly beating back investigations into not only the court tower, but any of the principals who were involved in other matters or at the periphery of that deal, which [Thomas] considered corrupt.”675 According to Thomas, Judge Donahoe was an accessory to bribery because he did the following:

a. Quashed a grand jury subpoena concerning the Court Tower;

b. Disqualified MCAO from the Court Tower matter; and

c. Quashed a search warrant of an office in the Stapley matter.676

409. The Hearing Panel finds this testimony to be unbelievable. There was no mention in the PC statement attached to the direct complaint against Judge Donahoe that Judge Donahoe was an accessory to an alleged bribe involving Mundell, Stapley and Irvine.677 Thomas had attached the complaint and he assumed the PC statement to his news release about charging Donahoe.678 The fact that there is not one mention of Thomas’s theory in the PC statement indicates that his explanation is an attempt to create probable cause where there was none. No other witness in this hearing, including Aubuchon, testified that the theory for charging Judge Donahoe was that he was an accessory.

410. Further, this testimony is unbelievable because the three acts that Thomas points to as criminal were judicial decisions that Judge Donahoe made. There was no evidence presented to this Hearing Panel that MCAO or MCSO had evidence that Judge Donahoe accepted a bribe for making these judicial decisions. Thomas’s testimony that these acts constituted acts of an accessory to bribery is totally incredible. The Hearing Panel finds that Thomas engaged in misrepresentation at the hearing on this issue.

411. Aubuchon testified that the PC statement set forth probable cause to believe that Judge Donahoe engaged in bribery, hindering and obstruction.679 The Hearing Panel finds that testimony incredible. A reading of the PC statement indicates that it does not set forth any evidence of criminal conduct by Judge Donahoe. No lawyer, especially one with extensive criminal prosecution experience, could conclude otherwise. For Aubuchon to testify that it did set forth probable cause indicates that she engaged in misrepresentation to this Hearing Panel. As noted above, no other evidence except that in the PC statement was presented to this Hearing Panel that Judge Donahoe engaged in crimes.

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Dec
19

More excerpts from the proposed findings filed by Bar Counsel

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384. The Filing of Charges Against Judge Donahoe. As described above in Section III.D.1, Judge Donahoe had scheduled a hearing for the afternoon of December 9, 2009 regarding the Notice and Motion filed by Thomas Irvine and Edward Novak on behalf of the County.601 The motion filed for the Board by Irvine and Novak sought an order prohibiting special deputy county attorneys from appearing before a grand jury.

385. On December 9, 2009, under Thomas’s authority and with his approval, Aubuchon through MCSO detectives filed a criminal case against Judge Donahoe.602 Thomas made the decision to file a direct complaint against Judge Donahoe following a meeting with Aubuchon, Hendershott, and Arpaio.603 Thomas and Aubuchon denied that they wanted to file the charges against Judge Donahoe to stop that hearing.604 However, as discussed below, the Hearing Panel concludes that the evidence is clear and convincing that Thomas, Aubuchon, Sheriff Arpaio and then-Deputy Chief Hendershott decided to file the charges against Judge Donahoe so that he would not hold the December 9, 2009 hearing.

386. Aubuchon and Detective Gabe Almanza signed the direct complaint.605 It charged the judge with hindering, obstruction and bribery.606 There was no investigation in this matter prior to the filing of the direct complaint.607 Only after the direct complaint was filed did MCSO create a report.608

387. Aubuchon attempted to file the charges against Judge Donahoe a day earlier on December 8, 2009, after a meeting with Thomas, Arpaio and Hendershott.

388. On the afternoon of December 8, 2009, Chief Deputy Hendershott of MCSO called Sgt. Rich Johnson about filing a case against Judge Donahoe.609 Chief Deputy Hendershott told Sgt. Johnson that they needed it done “now.”610 MCSO Sgt. Brandon Luth, Sgt. Johnson and Deputy Chief Young called Aubuchon on the afternoon of December 8, 2009, to ask her what was going on and what they needed to charge.611 Aubuchon stated they needed a Form 4, a DR (departmental report) and a probable cause statement.612 Aubuchon told the MCSO officers she wanted to charge bribery and related charges.613 Sgt. Luth did not know what to write.614 Sgt. Luth’s orders were to put the case together and accompany Detective Cooning to “walk it throught” that evening.615

389. Later in the afternoon of December 8, 2009, Aubuchon, Chief Young, Sgt. Luth, Sgt. Johnson and Chief Hendershott met.616 Chief Hendershott told them about the racketeering lawsuit, and that they thought Judge Donahoe was going to throw MCAO off all County investigations.617 Chief Hendershott said that he had met with Thomas, Aubuchon, and Sheriff Arpaio, and that Sheriff Arpaio came up with the idea of charging the judge.618 Chief Hendershott told Sgt. Luth to use as the material for the Form 4, or probable cause (“PC”) statement, a complaint that the Chief Deputy had submitted to the Commission on Judicial Conduct against Judge Donahoe.619 Chief Hendershott printed off his complaint and wrote the charges on it. 620 At the hearing in this case, Hendershott was unable to describe any criminal conduct by Judge Donahoe.621

390. Sgt. Luth drafted the PC statement using Chief Deputy Hendershott’s judicial complaint622 at Aubuchon’s direction.623 The PC statement addresses Judge Donahoe’s:

a.alleged conflict of interest;

  1. his failure to take action against Supervisor Stapley about alleged disclosure of grand jury information;

c.problems with the Sheriff’s Department transporting prisoners to court;

  1. bias against the Sheriff’s Office;

e.setting a hearing about a motion to remove MCAO from prosecuting cases against MCBOS and County Management.

The PC statement is substantially about perceived difficulties MCSO was having with Judge Donahoe, but not about crimes he may have committed.

391. Sgt. Johnson called MCSO’s dispatch unit and obtained a Departmental Report number for the case.624 At about 5:00 p.m., Sgt. Luth took the Donahoe charging documents to Aubuchon. She read them. She said that “it worked for her.”625 Aubuchon signed the complaint as Deputy County Attorney.

392. Aubuchon attempted to have an investigator from MCAO file the direct complaint in Superior Court in the late afternoon or early evening of December 8, 2009. Aubuchon assigned the task of filing the direct complaint to MCAO investigator Lt. Richard Hargus.626 Lt. Hargus then asked MCAO Detective Timothy Cooning to meet an MCAO clerk in front of the court at 5:30 p.m.627 Det. Cooning did so, and the clerk handed him the Donahoe file. Cooning read the file, returned to his office, and informed Lt. Hargus that he felt uncomfortable swearing to the truthfulness of the complaint against Donahoe because he had not investigated the case.628 Cooning also was uncomfortable signing the probable cause statement because it was unclear what crimes had been committed and who had investigated them.629

393. Lt. Hargus told his superior, Commander Stribling, that Lt. Hargus and Detective Cooning did not want to file the complaint because there was no probable cause to support it.630 Commander Stribling agreed that none of his detectives should be put in the position of walking through a complaint on a sitting Superior Court judge when he knew nothing about the investigation that led up to the filing of the complaint.631 The commissioner assigned to the evening court might ask the detective questions, and the detective would not know what to say.

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Dec
19

Closing arguments and proposed findings filed in Thomas case

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Proposed findings submitted by Bar Counsel included assertions that Thomas and Aubuchon could not have reasonably believed there was probable cause to charge Judge Donahoe with crimes. Based on the facts set forth above, there was no evidence Judge Donahoe committed any acts that corresponded with any elements of the crimes charged. To the extent Thomas and Aubuchon claim they did believe there was probable cause, that claim is either incredible or is so unreasonable that no ordinarily prudent person could possibly have come to the same conclusion. … [T]he purpose of charging Judge Donahoe was to retaliate against him for actions he had taken earlier, in particular the removal of MCAO from the investigation of Court Tower matters in February 2009. Judge Donahoe’s ruling on the Court Tower matter was the subject of a special action that Thomas and Aubuchon filed, review of which was denied for the final time on December 1, 2009, eight days before they charged Judge Donahoe with felonies. … Thomas and Aubuchon engaged in conduct involving dishonesty, fraud, and deceit when they knowingly brought charges against Judge Donahoe that were false and made without any investigation or evidence.

In other areas of the proposed findings, Bar Counsel asserted: Aubuchon signed the direct complaint that she and Thomas filed against Judge Donahoe. The direct complaint, prepared by Aubuchon, contained a signature line for a “complainant” from MCSO. Detective Gabe Almanza signed the document as “complainant” and did so under oath. Detective Almanza had not conducted any investigation into alleged criminal conduct by Judge Donahoe. Thomas and Aubuchon knew that the criminal charges they brought against Judge Donahoe were false, that Detective Almanza swore to a false complaint, and that a complaint is a sworn document as defined by A.R.S. § 13-1701. Therefore Thomas and Aubuchon are criminally accountable for the conduct of Detective Almanza because they knowingly caused him to sign and file a false sworn document and/or they ratified his conduct after he had signed the complaint. Thomas and Aubuchon committed perjury because they acted with the culpable mental state to engage in perjury and did so through the acts of another. Accordingly, they are criminally responsible under A.R.S. § 13-303 for the acts of another. By committing perjury, Thomas and Aubuchon violated ER 8.4(b).

For more information on Andrew Thomas, I’d encourage you to visit the website of author Daniel Horne and check out his book, Accidental Felons.

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The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.

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