Can you be “released from custody” when you’re in jail?

Sass can't believe the state's argument
(photo by John Storz)  

The question seems paradoxical, if not outright nonsensical.  And the answer to the question can be equally goofy—enough to flummox even the sharpest legal watchdog.  Take for example, the Miranda warnings.  The police must read them before they interrogate an in-custody suspect.  Certainly a person in jail is in custody, right?  Not necessarily.  The police might be able to legally interrogate an imprisoned defendant without Miranda warnings unless the defendant can later show that he was “in custody within custody.”  (Very clever.)  In other words, he was in custody, sure, but he was out of custody regarding the subject matter of the interrogation!  Therefore, Miranda warnings might not be required!

Prosecutors and courts like to pay this game with bond conditions, too.  Assume that a defendant’s signature bond has a “no contact with Ms. Smith” condition, he signs the bond, but he remains in custody because he’s also being held on another case for which he can’t post the cash bail.  In this scenario, if he calls Ms. Smith from inside the jail, he’s committing bail jumping because, even though he’s locked away and literally can’t get out, he’s technically “released from custody” on the case for which he signed the signature bond that includes the “no contact with Ms. Smith” condition!  See State v. Dewitt, 2008 WI App 134.  Most prosecutors and some judges live for this kind of sneaky, form-over-substance, somewhat clever, “gotcha” approach to criminal law.

But recently, in State v. Jacobs, prosecutors tried to extend the application of this ploy and went a bit too far.  Sure, the trial court judge, Katherine Sloma, proved to be an eager coconspirator, and bought the prosecutor’s argument hook, line, and sinker.  But the appellate court couldn’t quite stomach it and had to reverse. 

More specifically, bail jumping can be charged when a defendant, “having been released from custody under [Wis. Stat.] ch. 969, intentionally fails to comply with the terms of his or her bond.” (emphasis added).  What if a defendant was released from custody on bond and violated a term of that bond by failing to appear in court.  Could that be bail jumping?  Yes, and that’s simple enough.  But assume that, based on that failure to appear, the judge forfeits the bond and issues an arrest warrant; the defendant is then arrested on the warrant and is taken into custody; and the defendant then commits the crime of obstructing an officer while in jail.  That could be a new crime for obstructing, but is it also bail jumping?  After all, the defendant had been, at one time, “released from custody” on bond.

That was essentially the government’s argument (case here, excellent On Point post here).  It just wasn’t enough that prosecutors charged the defendant with (a) his original crimes that got him on bail in the first place, (b) his legitimate bail jumping violations (e.g., for failing to appear in court), and (c) his subsequent, substantive crimes (e.g., obstructing).  Sure, the state conceded that being released from custody has some end point (see ¶ 22), but that end point, the state argued, isn’t necessarily when the judge forfeits bond and issues a bench warrant and the defendant is arrested and returned to custody!  Instead, the state argued, the defendant is only off bond (and would therefore no longer subjected to the bond’s conditions) when the defendant is subsequently, perhaps many months later, physically “return[ed] to court for the case in question”! 

What?!  There is no rhyme, reason, logic, or law to that argument.  In fact, that argument seems to directly contradict clear statutory law. See ⁋ 19.  But regardless of when the court eventually gets around to scheduling subsequent court dates, a defendant can’t be convicted of violating bond conditions on a bond that no longer exists.

Kudos to State Public Defender appellate counsel Jeremy A. Newman for a job well done.  As indicated above, the appellate court couldn’t stomach the state’s argument, and Atty. Newman got a total of 17 B.S. bail jumping counts dismissed.  But unlike the Miranda trick and the multi-case bail jumping trick described in the beginning of this post, this attempted prosecutorial scam is not even clever.  It’s embarrassing. 

The trial-level prosecutors, the trial-court judge Katherine Sloma, the AG Joshua Kaul, and his AAG Michael Sanders, all should have had their hands smacked for making or buying into a frivolous argument.  After all, when seeking her appointment to the judicial throne, Katherine Sloma told Governor Evers in her application that a “judge must have the ability to listen to all relevant arguments and then consider the arguments as she applies the law.”  I guess she forgot the “as she applies the law” part. 

There should be a rule: if a prosecutor is going to make a frivolous argument, and if a trial court judge is going to buy it, The Legal Watchdog must at least deem it to be clever.  Otherwise, sanctions should be imposed on all government agents that were involved in the slow-moving train wreck of case that ultimately required appellate court intervention.