Rule 141. Right to bail before conviction

Rule 141. Right to bail before conviction

(a) All persons shall, before conviction, be bailable by sufficient sureties approved by a judge, provided, however, that any real property utilized by such sureties to secure the defendant's appearance shall have a fair market value which is double the amount of the bail set or reduced by the Court.

(b) Whenever a person charged with an offense is before a judge of this court for release on bail prior to trial, pursuant to these rules, the judge shall, in considering the release of such person, be guided by and apply the appropriate provisions of "The Bail Reform Act", Public Law 98-473, October 12, 1984, 18 U.S.C. secs. 3141-3156 (1985), which Act is by this reference incorporated into and made a part of these rules.

(c) Bail and other conditions of release shall be ordered in any of the following categories, except as otherwise provided for serious felony offenses:

1. Cash Bail Bond. A sum of money designated in an order fixing bail and posted with the court by a defendant or by another person on his behalf upon condition that such money will be forfeited if the defendant: (1) does not comply with the directions of the court requiring his appearance at the criminal trial or related proceedings and (2) does not otherwise render himself amenable to the orders and processes of the court.

2. Surety Bond. An undertaking by the defendant and his sureties, jointly or severally, that the defendant shall appear for trial or any related proceeding as ordered and if he fails to do so, he and the sureties shall pay the Virgin Islands Government the amount set by the court as bail for the defendant, or the property used to secure the defendant's release may be forfeited to the extent of the bail. Sureties shall comply with the provisions of Rule 145.

3. Unsecured Bail Bond. A bail bond in an amount for which the defendant is fully and personally liable upon his failure to appear in court when ordered to do so or upon his breach of a material condition of release, but which is not secured by any deposit of or lien upon property.

4. Personal Recognizance. Pre-trial release based upon the person's own promise that he will appear for trial or any proceeding in connection therewith as ordered by the court. This type of bail is used in place of a bail bond when the judge is satisfied that the defendant will appear without the need for a surety bond or other form of security.

(d) Third Party custodian. In addition to the foregoing, the court may require a third party custodian to further ensure compliance with the terms of the release and the appearance of the defendant in each of the foregoing instances. Each custodian must fully execute under oath the Third Party Custodian Consent Form before a defendant may be released.--Amended Mar. 3, 1970; Oct. 10, 1973; Oct. 14, 1994, eff. Nov. 16, 1994; Oct. 12, 1995; May 12, 1998.

Explanatory Notes

Change of name of Commissioner of Public Safety. Act June 15, 1984, No. 4964, ' 1, Sess. L. 1984, p. 177, changed the name of the Commissioner of Public Safety to Police Commissioner.

Applicability of amendments to Bail Reform Act. Order of the District Court of the Virgin Islands dated October 17, 1986, provided that the provisions of the Bail Reform Act, as amended, Public Law 98-473, October 12, 1984, 18 U.S.C.A. '' 3141-3156 (1985), would apply to subdivision (b) of this rule; and provided, further, that in all other respects, subdivision (b) of this rule shall remain in full force and effect.

Generally

Application

Burden

Guides

Non-dangerous defendant

Pretrial detention

Generally

This rule recognizes defendant's right to bail and directs that the judge shall be guided by the Bail Reform Act of 1984 in determining the conditions of release. Government of V.I. v. Texido, Terr. Ct. St. C. 1996, 35 V.I. 3.

Application

Territorial Court Rule 141 governs the setting of bail before conviction and requires the trial judge to be guided by the Bail Reform Act, 18 U.S.C. " 3141-3150, in determining the conditions for pretrial release of a non-dangerous defendant. Georges v. Government of V.I., D.C.V.I. 1997, 36 V.I. 126, 958 F. Supp. 245.

The power to promulgate or continue the rule derives from Section 21(c) of the Organic Act, thus the powers of the legislature to enact the Local Detention Statute and of the Territorial Court to promulgate subdivision (b) of this rule, making the Bail Reform Act applicable, emanate from the identical source, ie., the Organic Act. Government of the Virgin Islands v. Thomas, Terr. Ct. St. C. 1995, 32 V.I. 64.

The Bail Reform Act is applicable to the Territorial Court, not because of the general provision of Rule 7, but pursuant to the more specific provisions of subdivision (b) of this rule. Government of the Virgin Islands v. Thomas, Terr. Ct St. C. 1995, 32 V.I. 64.

The 1984 Bail Reform Act has been made applicable to release proceedings in the Territorial Court. Government of the Virgin Islands v. Thomas, Terr. Ct. St. C. 1995, 32 V.I. 64.

Burden

The Bail Reform Act requires the court to engage in a two-step inquiry before ordering a defendant released or detained pending trial: first, the court must make a finding as to whether the defendant presents a risk of flight if not detained and, if so, must then determine whether there are conditions or a combination of conditions which reasonably will assure the presence of the defendant at trial if he is released; the burden is on the government to show the absence of such conditions by a perponderance of evidence. Government of V.I. v. Texido, Terr. Ct. St. C. 1996, 35 V.I. 3.

Guides

Territorial Court Rule 141(b) requires the trial judge to be guided by The Bail Reform Act, 18 U.S.C. " 3141-3150 in considering pretrial release of a defendant. Karpouzis v. Government of V.I., D.C.V.I. 1997, 36 V.I. 132, 961 F. Supp. 841.

Non-dangerous defendant

A $2 million bail in a case involving a non violent charge amounts to the sub rosa use of money bond to detain the appellant; it is the equivalent of a straight detention order, which is not permitted for "non-dangerous" offenses under the law of the Virgin Islands. Karpouzis v. Government of V.I., D.C.V.I. 1997, 36 V.I. 132, 961 F. Supp. 841.

The trial judge must order the release of a non-dangerous defendant, subject to the least restrictive combination of conditions, including money bail, which will reasonably assure the defendant's attendance at trial. Karpouzis v. Government of V.I., D.C.V.I. 1997, 36 V.I. 132, 961 F. Supp. 841.

Pretrial detention

Pretrial detention provided for in the Bail Reform Act was intended to prevent flight and to protect the safety of the community, and a lack of reasonable assurance of either appearance or safety of others or the community is sufficient for pretrial detention to be imposed; both is not required. Government of V.I. v. Texido, Terr. Ct. St. C. 1996, 35 V.I. 3.

The seriousness of the kidnapping and rape charges, the likelihood of a finding of guilt, combined with defendant's previous flight from the State of Alaska during the pendency of a judicial proceeding, his use of aliases, lack of ties to this community and the continued danger which he may pose, all led the court to deny defendant's renewed motion for release on bail. Government of V.I. v. Texido, Terr. Ct. St. C. 1996, 35 V.I. 3.