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Brangan v. Commonwealth

Supreme Judicial Court of Massachusetts, Suffolk

August 25, 2017


          Heard: May 2, 2017.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 26, 2016.

         The case was heard by Lenk, J.

          Merritt Schnipper for the petitioner.

          Amal Bala, Assistant District Attorney, for the Commonwealth.

          Shira Diner & Ryan M. Schiff, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Hines, Gaziano, Lowy, Budd, & Cypher, JJ. [1]

          HINES, J.

         The practice of releasing a defendant on bail prior to trial has been part of Massachusetts law since its beginnings as a colony. See Commonwealth v. Baker, 343 Mass. 162, 165 (1961). The Body of Liberties (1641), the oldest known compilation of Massachusetts Colonial law, provided that:

"18. No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it."

See Baker, supra.

         This statement, although nearly four centuries old, summarizes well the dual functions of bail. On the one hand, release on bail preserves the liberty of the accused until he or she has been afforded the full measure of due process in a criminal trial. "This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning" (citation omitted) . Stack v. Boyle, 342 U.S. 1, 4 (1951) .[2] On the other hand, the giving of security serves to assure that the defendant will appear in court when called to do so. "The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty." Id. Where, as in this case, the defendant is unable to give the necessary security for his appearance at trial because of his indigence, the purpose of bail is frustrated. The cost to the defendant is the loss of liberty and all the benefits that ordinarily would accrue to one awaiting a trial to determine his guilt or innocence.

         The petitioner in this case, Jahmal Brangan, has been held at the Hampden County jail since January 17, 2014 -- more than three and one-half years -- because he has been unable to post bail in the amounts ordered by a Superior Court judge following his arrest and indictment for armed robbery while masked. In this appeal from a judgment of a single justice denying his petition for relief under G. L. c. 211, § 3, Brangan contends that the single justice's denial of his bail review request should be reversed because the Superior Court judge's bail order is unconstitutional. In particular, he argues that the bail order violated his right to due process because the judge failed to give adequate consideration to his financial resources, and set bail in an amount so far beyond his financial means that it resulted in his long-term detention pending resolution of his case.

         In resolving the issues Brangan raises, we address the extent to which a judge must consider a criminal defendant's financial resources in setting bail, whether such a defendant is constitutionally entitled to an affordable bail, and the due process requirements that apply if the judge settles on a bail amount that is more than the defendant can pay, resulting in pretrial detention. For the reasons explained below, we conclude that in setting the amount of bail, whether under G. L. c. 276, § 57 or § 58, a judge[3] must consider a defendant's financial resources, but is not required to set bail in an amount the defendant can afford if other relevant considerations weigh more heavily than the defendant's ability to provide the necessary security for his appearance at trial. Where, based on the judge's consideration of all the circumstances, including the record of defaults and other factors relevant to the likelihood of the defendant's appearance for trial, neither alternative nonfinancial conditions nor a bail amount the defendant can afford will adequately assure his appearance for trial, the judge may set bail at a higher amount, but no higher than necessary to ensure the defendant's appearance for trial. We conclude further that where it appears that a defendant lacks the financial resources to post the amount of bail set, such that his indigency likely will result in a long-term pretrial detention, [4] the judge must provide written or orally recorded findings of fact and a statement of reasons for the bail decision. Based on the record before us, it does not appear that the judge here considered Brangan's financial resources in setting the bail. Therefore, we reverse the judgment of the single justice and remand this matter to the county court to direct the Superior Court judge to conduct a new bail hearing for Brangan as soon as possible in accord with the standards set out in this opinion.[5]


         On January 17, 2014, a man wearing a cap, scarf, and sunglasses robbed a bank in Springfield by passing a note to the bank teller demanding money and stating that he had a weapon. The teller handed over less than $1, 000 to the robber, who then fled. The police arrested Brangan later that same day after finding his thumbprint on the robbery note.[6]

         At the time, Brangan was on probation following a prison sentence of from eight to twelve years for rape of a child and related charges.[7] Consequently, the probation department filed a notice of surrender, and when Brangan appeared on February 10, 2014, a judge of the Superior Court set bail at $20, 000 cash or $200, 000 surety based on the probation violation notice. A grand jury subsequently indicted Brangan for armed robbery while masked under G. L. c. 265, § 17. On March 10, 2014, at Brangan's arraignment on the robbery charge, the judge set bail in the amount of $50, 000 cash or $500, 000 surety. Brangan remained in custody pending his trial.

         In March, 2015, Brangan was tried and convicted on the armed robbery charge, after which the judge revoked his bail. Shortly after the entry of a guilty verdict, however, the trial judge declared a mistrial due to certain statements in the prosecutor's closing argument, and ordered Brangan to be retried;[8] the Commonwealth then appealed from the mistrial order. In the wake of the mistrial ruling, the judge held another bail hearing on April 10, 2015, and reinstated the original bail at $50, 000 cash or $500, 000 surety. Brangan unsuccessfully sought reduction of the bail in the Superior Court on July 15, 2015, and December 28, 2015.

         In January, 2016, this court granted Brangan's application for direct appellate review of the Commonwealth's appeal from the trial judge's mistrial order. We subsequently held that the Commonwealth had no right to appeal from the mistrial order, leaving the armed robbery charge to stand for retrial. See Commonwealth v. Brangan, 475 Mass. 143, 148, 149 (2016) (Brangan I).[9]

         Meanwhile, Brangan followed a long and tortuous path to seek relief from his pretrial detention, filing four successive petitions in the county court pursuant to G. L. c. 211, § 3. The single justice denied Brangan's first petition without prejudice due his failure to file the record materials necessary to support his claims.

         On considering Brangan's second petition, the single justice observed that the judge who had denied Brangan's motion for reduction of bail on December 28, 2015, had not made any oral or written findings or otherwise explained his decision. Accordingly, the single justice remanded the matter for a hearing to determine bail based on the factors set forth in G. L. c. 276, § 58. A judge of the Superior Court then conducted a bail hearing and issued a written decision retaining the original bail in the amount of $50, 000 cash or $500, 000 surety for the armed robbery charge and $20, 000 cash or $200, 000 surety for the probation violation.

         After Brangan filed a third petition, the single justice remanded the matter to the Superior Court for consideration in light of this court's decision in Brangan I, which had been issued in the interim. A Superior Court judge then conducted another hearing and entered an order, dated September 19, 2016, that reduced the defendant's bail to $20, 000 cash or $200, 000 surety for the armed robbery indictment and retained the original bail in the amount of $20, 000 cash or $200, 000 surety for the probation violation.

         Using a District Court form captioned "Reasons for Ordering Bail, G. L. c. 276, § 58, " the judge checked off the following boxes as grounds for denying Brangan's release on personal recognizance without surety: the nature and circumstances of the offense charged; the potential penalty he faced; his history of mental illness; his record of convictions; the fact that his alleged acts involved "abuse" as defined in G. L. c. 209A, § 1; his history of orders issued against him under G. L. c. 209A; and his status of being on probation. In additional notes on the form, the judge stated that he had considered the matter in light of Brangan I in accord with the single justice's remand order and heard oral argument and reviewed the parties' submissions. As further grounds for the bail determination, he cited Brangan's prior sentence to State prison for multiple counts of rape of a child; the fact that he faced a substantial penalty if convicted of armed robbery; his history of c. 209A orders; and the fact that he was on probation at the time he allegedly committed the armed robbery. The judge also ordered that, if Brangan posted bail, his release would be on condition that he wear a global positioning system (GPS) bracelet, observe a curfew, and stay away from the alleged victims.

         Brangan then filed a fourth petition with the county court, arguing that the Superior Court judge had failed to give meaningful consideration to his inability to make the bail, to the equities in the case, and to his alternative proposal to post $5, 000 cash bail and wear a GPS bracelet. Brangan further asked the single justice to conduct a bail hearing de novo. In support of this petition, Brangan filed an affidavit stating that the Superior Court judge had found him to be indigent when he was first charged in January, 2014; that he had been represented at trial and on appeal by court-appointed attorneys; that his financial condition was far worse than when he was first charged, since he had been incarcerated and unable to work; and that there was no way he could hope to post the $40, 000 bail that the judge had set.

         The single justice denied the fourth petition, ruling that Brangan's inability to make a particular bail amount did not render the Superior Court judge's order a functional denial of bail, and did not establish, without more, that Brangan was entitled to extraordinary relief under G. L. c. 211, § 3. The defendant appealed from the single justice's order pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). This court ordered the appeal to proceed with briefing and argument. We noted that filing a petition pursuant to G. L. c. 211, § 3, is the proper means for seeking relief from bail determinations in the Superior Court, see Commesso v. Commonwealth, 369 Mass. 368, 372 (1975), and that Brangan had no other means of obtaining adequate appellate review.


         1. Standa ...

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