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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 24938
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My brother was arrested in SC for misconduct with a minor

Customer Question

My brother was arrested in SC for sexual misconduct with a minor <11 years old (he is innocent) on 11/4/15. He has been in the Anderson county detention center since. No official has come to talk to him (he was told upon arrest that the investigator would come by to see him in jail-he has not). He was told due to the nature of the charge he would have to have a bond hearing to set bond. He has been in there since 11/4/15 with no hearing and no hearing set. The solicitors office is saying it may now be the week of 12/14/15.
Is it legal to hold an un-convicted American that long behind bars????? Is this normal????
R.K.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.

Hello,

Are you saying that your brother has not yet been to court at all? Or was he arraigned and pled not guilty to this charge and now just awaits a bond hearing? What has his lawyer said about the delay?

Expert:  Zoey_ JD replied 1 year ago.

I have looked up the law of your state, which says that a bond hearing must be held within 24 hours of an arrest. The hearing can be delayed but only for exceptional circumstances. I am attaching the law of your state here, and you can see rule 106.

Your brother's lawyer should be able to tell you why no such hearing was held. Perhaps there was a reason for the defense to waive an early bond hearing for example. In any case, this delay is not regular and since it requires an exceptional reason may or may not be lawful. If there are no exceptional circumstances requiring such a delay, the remedy would be for his lawyer to file a writ of habeas corpus to bring your brother before a judge so that the state can demonstrate the exceptional circumstances requiring his continued restraint without a bond hearing and, if the state cannot do so, for the judge to order his release.

Customer: replied 1 year ago.
His lawyer tells us the seriousness of the charge (with possible life sentence) requires him to go before a circuit judge for his bond hearing. We still expected that to happen within a few days. Like I said he is behind bars for his 20th day today. If the hearing takes as long as they tell us now he will have been in there for 43 days without hearing and without even being talked to by any law enforcement official.
Expert:  Zoey_ JD replied 1 year ago.

Is this offense is serious enough to be considered a non-bailable offense, for which some kind of motion for reconsideration has to be filed with Circuit Court? If so, that could explain the delay, and it would be proper. If the lawyer thinks it's not proper or that the delay is unreasonable, however, filing the writ of habeas corpus will push things to a head and get him a hearing.

As for being talked to by law enforcement, the only person any criminal defendant should talk to about the circumstances of his case is his lawyer. Otherwise, anything he says can be used against him. No criminal defendant should talk to law enforcement unless his lawyer is there with him.

Law enforcement likely knows that he is represented by counsel and has been instructed by his lawyer not to talk to him. However, if he thinks he has something to say which law enforcement needs to hear, he can take that up with his lawyer and his lawyer can arrange to be present for a conference with the authorities.