The key takeaway from this soon to be published court of appeals decision may seem obvious and inarguable, but as we’ll see below, the state pursued and the circuit court blessed what would have been a massive expansion of the most commonly charged crime in the state of Wisconsin: bail jumping.
So as to not bury the lead, the court of appeals’ eventual holding in this case is that a defendant previously released from custody on bond is no longer “released from custody” for bail jumping purposes when they are “placed in custody in connection with the same case in which he or she had previously been released.”
Stated differently, a defendant does not meet the definition of “having been released from custody under ch. 969” when (1) the defendant is arrested in connection with the case in which he or she was previously released pursuant to ch. 969, and (2) there is court action on the bond under which the defendant was released that leads to the defendant’s custody.
Jacobs’ case originated based on a prosecutorial theory that an individual is subject to bail jumping so long as they (1) were previously released from custody on bond and (2) subsequently violated a condition of the bond. Under the state’s theory, whether the individual was “released from custody” at the time of the alleged violation of the bond at issue was irrelevant. More specifically, Jacobs’ case presented a situation where (1) an individual is released from custody on bond, (2) then fails to appear in court or is alleged to have otherwise violated the conditions of their bond, and (3) is eventually taken back into custody in connection with the bond. After unsuccessful, but dogged, pretrial litigation in the circuit court, a successful petition for an interlocutory appeal by Jacobs, contested briefing in the court of appeals, and oral argument, the court of appeals rejects the state’s theory and orders the dismissal of 17 total counts of felony bail jumping.
Now for some further backstory. In late 2019, Jacobs was charged with felonies in Outagmie County and Forest County and released from custody after posting cash bonds in each county. He subsequently missed court in each case and the respective judges issued bench warrants for his arrest, pursuant to Wis. Stat. § 968.09.
In March of 2020, at around the time start of the COVID-19 pandemic, Jacobs was arrested in Shawano County on the outstanding bench warrants. Prior to appearing in the other counties to address the bench warrants, the state charged Jacobs with new crimes alleged to have occurred in the Shawano County Jail after his March arrest. The state also charged him with 3 counts of felony bail jumping for allegedly violating the conditions of his release in the Outagamie and Forest County cases. Even after judges in Outagmie County and Forest County modified Jacobs’ cash bond and while he remained in custody in the Shawano County jail unable to post the modified bonds, the state filed new changes and added another 14 counts of felony bail jumping based on the previously posed bonds. Let that all sink in.
In the circuit court, the state took the position that “once released from custody” means “always subject to bail jumping charges,” because neither the statute nor the jury instructions explicitly require the state to prove that Jacobs was “released from custody under ch. 969” at the time of the alleged violation of the bond. The circuit court agreed and expressed public policy and safety concerns that would flow from Jacobs’ position. (See Jacobs’ brief, as the court of appeals’ de novo review does not address the circuit court’s reasoning).
On appeal, the state wholeheartedly agreed with the prosecution’s theory and the circuit court’s decision. As they did below, the state argued that Jacobs’ position read words into the plain text of the statute and that because the legislature used the phrase “having been released from custody,” as opposed to “while released from custody,” the 17 felony bail jumping counts were fair game. (See State’s brief, which the court of appeals decision largely ignores because of a huge concession the state made at oral argument). The only limitation to the state’s “once released = always released” argument was that if bond is formally revoked under Wis. Stat. § 969.08(2), then the state could no longer pursue bail jumping charges. (See State’s br.). A logical flaw in the state’s argument was that why should bond revocation change anything if the statute does not require the state to prove the alleged bond violation occurred “while” the person was released from custody?
In any case, things changed after the court of appeals ordered oral argument. At oral argument, the state conceded that the 14 bail jumping counts that were alleged to have occurred after Jacobs’ bonds were modified in Outagamie and Forest County were invalid. (Op., ¶1, n.1). The reason: because after that point, Jacobs remained in custody on the two unsatisfied bonds. Thus, under State v. Orlik, 226 Wis. 2d 527, 595 N.W.2d 468 (Ct. App. 1999), the state belatedly agreed that it can’t charge an individual with bail jumping if, at the time of the alleged violation, they are not released from custody on the bond at issue.
Hanging onto a thread, and unwilling to follow its new-found position to its logical conclusion, the state nevertheless argued that Jacobs’ arrest on the outstanding bench warrants was not sufficient to alter his status as an individual “released from custody under chapter 969.” Instead, the state argued that only appearing in court on the bench warrants or a bond modification or revocation motion would be sufficient. (Op., ¶25). The court disagrees with the state and holds that as soon as Jacobs was (1) back in custody and (2) that custody was based on some “court action regarding the bond pursuant to which the defendant was previously released,” the state could no longer prosecute Jacobs for bail jumping. (Op., ¶¶34-35). As a result, the court reverses and orders the 17 pending counts of felony bail jumping in five cases to be dismissed.
Some musings on this ridiculously necessary decision. First, shoutout to Jacobs’ trial counsel, Attorneys Beth Stockbridge and Eric Maciolec, who fought this prosecution in the cirucit court and convinced the court of appeals to accept this interlocutory appeal.
Second, bail jumping appears to remain the most charged offense in the state even without the state’s novel and rejected theory of prosecution in this case. Kudos to Attorney Amy Johnson, whose law review article, The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis, 2018 WIS. L. REV. 619, 619 (2018), was fuel for Jacobs’ petition and briefing, and cited by the court on the history of bail jumping in Wisconsin, which didn’t exist before 1969. (Op., ¶16).
Third, it’s not clear if the prosecutorial theory pursued in Jacobs’ case is a complete one-off or just very rare. On Point is aware of no other case in which the state utilized the same theory of prosecution as they did in Jacobs’ case. In any case, this decision is a reminder to double check the basics on any bail jumping charge. According to the briefing, it seems like these charges may have originated law enforcement or prosecutorial from inattention to the previously posted bonds and then continued as a result of an inability to admit the mistake and the sheer unwillingness to change course.
Fourth, an important limitation to the court’s decision is that physical custody alone is not sufficient to make immunize an individual from bail jumping charges. In State v. Dewitt, 2008 WI App 134, 313 Wis. 2d 794, the court held that a defendant who signs a signature bond, but remains in custody on an unfulfilled cash bond is subject to felony bail jumping charges despite his physical location in jail. That decision is good law for now and it means that had Jacobs’ been arrested and held solely on new charges in Shawano County and not in connection with the outstanding bench warrants, he would have remained subject to bail jumping charges until there was some “court action” on the bonds under which he previously obtained his release. So, for example, if a client is released from custody on a signature bond, and then arrested on new charges, there should at least be a discussion between client and attorney about moving the court to take action on the previously posted bond, because without any “court action,” the client likely remains “released from custody under chapter 969,” subject to bail jumping charges even if they are in jail, and to top it all off, not necessarily entitled to sentence credit for the time they spend in custody on the original signature bond case. See State v. Beiersdorf, 208 Wis.2d 492, 561 N.W.2d 749 (Ct. App. 1997).