Strauss-Kahn and Bail: Getting It Right

    On Tuesday I wrote that I was surprised that Dominique Strauss-Kahn was not released at his arraignment in the New York City Criminal Court "on a high bail with serious restrictions on his movements." I also said that "other judges will look at the matter."

    Yesterday another judge did look at the matter: Strauss-Kahn's lawyers made a motion for bail review in the Supreme Court, New York County, and the judge there got it right. He ordered Strauss-Kahn's release on high bail with serious restrictions on his movements.

    Bail is, after all, designed to assure the defendant's future appearance in court. The decision of the first judge to remand Strauss-Kahn without bail was a judicial determination that no conditions could be set to assure his future appearance in court. This is implausible, as the release on bail in the past of high profile defendants has shown. One of the conditions set for Strauss-Kahn's release is virtual house arrest with security paid for by him to keep him put. The press is reporting that it will be the same security firm which watched over Bernie Madoff when he was released on bail by a federal judge.

    It was also reported in court yesterday that the grand jury voted to indict Strauss-Kahn on various sexual assault charges, although it appears that the indictment has not yet been formally filed. In New York the grand jury consists of 16 to 23 members, and a vote of at least 12 is needed for an indictment. 

    The fundamental criticism of grand jury proceedings is that they are secret, and there is no judge or representative of the accused present. New York has sought to address the criticism by requiring a judge, upon request of the defendant, to make an in camera inspection of the grand jury minutes to determine whether there was sufficient evidence before the grand jurors to indict the defendant. See, CPL § 210.30. The required judicial inspection of the minutes will generally result in a judicial ruling of sufficient evidence to indict. But it is not a pro forma proceeding: indictments have been dismissed.

   As I noted on Tuesday, in light of the Strauss-Kahn "perp walk" and the denial of bail, there has been widespread overseas criticism of the criminal justice system in New York. The order granting bail should blunt some of this criticism.