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Cash-Only Bond Violates Ohio Constitution

2004-1104. Smith v. Leis, 2005-Ohio-5125.
Hamilton App. No. C-040273. Judgment affirmed.
Moyer, C.J., Pfeifer, O'Connor and Lanzinger, JJ., concur.
Resnick, Lundberg Stratton and O'Donnell, JJ., concur in part and dissent in part.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2005/2005-Ohio-5125.pdf

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(Oct. 12, 2005) It is unconstitutional for a trial court to require a cash-only bond for a criminal defendant awaiting trial, the Supreme Court of Ohio ruled today.

In a 4-3 decision written by Justice Judith Ann Lanzinger, the Court held that criminal defendant Garey Smith of Cincinnati was not entitled to a writ of habeas corpus reducing his bond, which was set at $1 million in cash by a trial court judge after Smith's convictions on charges of murder, two counts of attempted murder and other offenses were voided by the 1st District Court of Appeals and his case was remanded for retrial.

Although the Court upheld the 1st District's ruling that Smith was not entitled to the requested writ, it did so only because it found that the excessive bond question was moot in Smith's case because he had already been retried and convicted for his crimes, and thus was no longer eligible for preconviction bond. Because the issue raised in the case is one of great public or general interest, however, the Justices went on to rule on the underlying legal question of trial courts imposing cash-only bonds.

Smith was charged with aggravated murder with death penalty specifications and multiple other offenses for the 2001 shooting death of Jimmie Gordon and the wounding of three other men. A jury convicted Smith of the lesser offense of non-capital murder for Gordon's death, and found him guilty of attempted murder and multiple counts of felony assault for the other shootings. In 2004, however, his convictions were reversed based on a finding that the trial court had denied Smith's constitutional right to waive legal counsel and represent himself.

The appeals court remanded the case to the Hamilton County Court of Common Pleas, where Smith filed a motion asking that bond be set for his release from jail pending a new trial. The court acknowledged that Smith was eligible for bail and set his bond at $1 million, with the specification that the full amount of bond must be posted in cash.

Smith sought a writ of habeas corpus from the 1st District, arguing that both the amount and cash requirement constituted excessive bail and should be overruled. The state moved for dismissal of Smith's petition, and in June 2004 the 1st District denied Smith's motion for an evidentiary hearing and dismissed his habeas corpus action. Smith appealed the dismissal to the Supreme Court, which agreed to hear arguments on the cash-only bond issue.

Before 1998, Article I, Section 9, of the Ohio Constitution required that “(a)ll persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great.” Under a constitutional amendment adopted by Ohio voters effective Jan. 1, 1998, Article I, Section 9, was changed to allow state courts to deny bail not only in capital cases, but also in cases where a person jailed for a felony of which there is evident proof “poses a substantial risk of serious physical harm to any person or to the community.”

In 1993, the Supreme Court of Ohio ruled in State ex rel. Jones v. Hendon that a trial court violated the constitutional right of a criminal defendant eligible for bail when it specified that the court would only accept the specified amount of bond in cash . The Jones Court cited the constitutional guarantee of bail “by sufficient sureties,” and pointed to language in Ohio CrimR.46 specifying that a defendant could meet the “sufficient sureties” requirement either by filing a bail bond secured by 10 percent of the amount set by the court, by pledging sufficient real property or securities as allowed by law or with “the deposit of cash, at the option of the defendant .”

In today's decision, Justice Lanzinger wrote that, while the 1998 constitutional amendment expanded the range of defendants for whom bail eligibility could be denied outright, neither the amendment itself nor any collateral legislation or rule changes implementing the amendment have invalidated the Jones Court's holding that a defendant who is legally eligible for bail has a constitutional right to post bond by any of the means enumerated in Crim.R. 46.

“(T)he amendment to Section 9, Article I, was designed to expand the types of offenses and circumstances under which bail could be denied, not to limit an accused access to a surety once bail is granted ,” wrote Justice Lanzinger. “(G)iven the language of Section 9, Article I … the explicit purpose of the 1998 amendment, the lack of a contrary unambiguous intent by the General Assembly or the electorate to depart from the court's precedent … and persuasive precedent from other jurisdictions considering this issue, we hold that … Section 9, Article I prohibits cash-only bail because it infringes upon an accused's constitutional right to bail by sufficient sureties.”

Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O'Connor joined Justice Lanzinger's opinion. Justices Alice Robie Resnick, Evelyn Lundberg Stratton and Terrence O'Donnell concurred in part and dissented in part.

Justice Stratton, writing for the minority, agreed with the majority that although Mr. Smith's case was moot, the constitutional issue still needed to be decided. She disagreed, however, that the Ohio Constitution and Crim.R. 46 prohibit cash bonds. Justice Stratton pointed to language added to Crim.R. 46 following the 1998 amendment that allows “[a] court, at any time, [to] order additional or different types, amounts or conditions of bail.” In light of that provision, she wrote: “In my view, the plain language of the Constitution allows cash-only bonds. The majority's interpretation of the provisions at issue in this case improperly limits judicial discretion in fashioning appropriate types and amounts of bail.”

Judith Anton Lapp, 513.946.3009, for the Hamilton County Prosecutor.

Pierre H. Bergeron, 513.361.1200, for Garey Smith.