For the Defense - Vol. 5, Issue 2 - 8

department, stay-away orders, requirements
for treatment, ankle-monitoring, or
even house arrest.13 Again, it is the
Commonwealth which must prove that
none of these conditions could be effective
to assure the safety of the community, and
the Commonwealth must prove this by clear
and convincing evidence that it presents at
the hearing. Evidence that could conceivably
meet the Commonwealth's burden would
be a witness testifying that this defendant
has defied such conditions in the past or
documentary evidence that establishes that
such conditions could not be effective. If the
Commonwealth brings no such witnesses or
documentary evidence, they, definitionally,
have not met their burden of proof.14
Remember, arguments of counsel are not
evidence.15
3.	 Due Process. Revoking bail after the
presentation of no evidence not only
violates the plain text of Article I, § 14 itself
but also the Due Process Clause of the
United States Constitution.16 You should
explicitly argue that if the judge revokes
bail based on little to no evidence, such
a procedure violates due process. All too
often the Commonwealth simply points to
the affidavit of probable cause and baldly
asserts the defendant is a danger without
presenting any additional testimony or
evidence. Unfortunately, many defense
attorneys do not object, so this issue has
never been decided on appeal. Since I have
disseminated these arguments to my office
and the local bar, trial attorneys have gained
traction with trial judges and have gotten
clients released on nominal bail. In fact, the
arguments have worked so well that I have
only had a handful of cases in which to raise
these issues with higher courts. Hopefully,
you have the same success, but if you do
not, making these objections at the hearing
is necessary to preserve the issue for appeal.
4.	 Prejudice: Finally, you should argue that the
client being detained pretrial hinders the
client's ability to assist in their own defense,
and you should present social science articles
that show that pretrial detention makes
conviction more likely.17 Be sure to explicitly
argue that in this particular case, if your
client were released on bail, they could
better assist in their own defense. Whether
this will sway the trial judge is debatable but
8

For The Defense l Vol. 5, Issue 2

raising the issue at this stage will set you up for
a line of argument on appeal if your client is
ultimately convicted.

Petitions for Review to the Superior Court
If, despite your best efforts, your client is denied
nominal bail, you can immediately file a petition
for review with the Superior Court pursuant to
Pa.R.A.P. Rule 1762. Essentially, such a petition is
akin to a collateral appeal of only the bail issue.18 A
petition for review does not affect the trajectory of
the underlying case, so there is no real downside to
filing one.19
The shortcoming with these petitions is that the
Superior Court can sometimes take up to a few
months to rule, and if the petition is denied, the
Superior Court issues no opinion. (Arguably this
lack of prompt process is yet another reason to find
Pennsylvania's bail procedures in this arena falling
short of required due process.)
I have filed several such petitions. In one I argued
that Article I, § 14 is facially unconstitutional. The
Court sat on the petition until the bail issue became
moot and then denied the petition on that basis,
even though I explicitly argued in my petition
that this is a classic exception to the mootness
doctrine-a recurring issue of importance that
repeatedly evades review.20
Nonetheless, filing such a petition can still have
benefits. You have 30 days to file the Petition for
Review from the date of the bail order,21 and the
petition must include all your allegations of fact
and arguments of law in numbered paragraphs.22
You are required to serve the District Attorney and
the trial judge with your petition.23 Thus, the trial
judge will be alerted to your petition and have the
opportunity to review it. In one case, I filed such a
petition for review and based upon that filing, the
trial court sua sponte reconsidered its bail denial
and let the defendant free. Because the client no
longer felt compelled to take a quick guilty plea,
the trial attorney was able to fully investigate the
case and the charges were ultimately dismissed
when evidence came to light proving the client's
innocence.
Incorporating Bail Denials Substantively into
Appeals
There is another way that litigating nominal bail
can be useful: if you lose at trial, you can argue
For the Defense - Vol. 5, Issue 2

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