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The recent case of Jeffrey Epstein confidant Ghislaine Maxwell caused me to think back to the days when I presided over hearings in which the court had to determine whether an accused person would await trial in custody or be released on conditions.

These were not required in every case. Sometimes, the prosecutor agreed that release was appropriate. Other times, the defendant waived the hearing and consented to detention. However, when the issue was contested, things got stressful. Detaining a person who is presumed innocent is not a decision that is made lightly.

When a person is arrested, he or she must be brought before a judge. One of the questions that must be addressed is whether the prosecutor is seeking to have the defendant detained. If ordered, detention keeps a person in custody while the case proceeds. We can use the Maxwell case to illustrate.

The grand jury returned an indictment charging Maxwell with six counts related to alleged sexual exploitation of minors. She was accused of grooming minors for Epstein. She was arrested and appeared via video before U.S. District Judge Alison Nathan.

After Maxwell entered a not-guilty plea, Nathan set the case for trial in July 2021. The U.S. attorney made a motion for detention. Defense counsel vigorously objected. This triggered the need for a hearing.

In a detention hearing, the court must undertake an assessment of risk. That is, the court must determine if the accused presents a risk of nonappearance and/or danger. If so, the court must decide if there are conditions of release that will reasonably address the risk. Conditions could include a cash or property bond, surrender of passport, curfew and home confinement with electronic monitoring, to name a few. Only when the judge determines that the conditions will not address the risk will detention be ordered.

Before the hearing, the U.S. Probation Office gathers information about the defendant and prepares a written report for the judge. The lawyers have a copy available during the hearing.

These reports prepared by the excellent officers in the Probation Office are extremely helpful. Testimony can be presented by both sides. The prosecuting attorney in the Maxwell case called two of the alleged victims. Following the presentation of evidence, the prosecutor and the defense attorney make arguments, in which they attempt to persuade the judge.

The focus in the Maxwell case was on risk of nonappearance. In fact, the prosecutor referred to the defendant as “the very definition of a flight risk.” According to my reading, risk of danger was not emphasized as a reason for detention.

Perhaps any individual facing a criminal charge that carries a lengthy sentence poses a risk of fleeing to avoid the prospect of spending time in prison. If that was the end of the analysis, every such person would have to be detained. That is not the case. There must be facts attributable to the defendant that support a conclusion that there is a risk he or she will not come to court when required.

A judge might look for a history of missing court. Interestingly, having a lengthy criminal record coupled with a history of coming to court actually suggests less risk of nonappearance. The pretrial services report will indicate whether the defendant has been convicted of escape or has otherwise been a fugitive.

The behavior of the defendant before and at the time of arrest can provide insight. Some people turn themselves in to the authorities. Others go into hiding, leave the state or try to flee when approached by agents. These and other factors are considered by the court when evaluating risk and deciding if conditions will address any risk found.

This was the process followed by Nathan, who found that the risks of releasing Maxwell, under the conditions recommended by her lawyer, were “simply too great.” She pointed to a combination of factors in support of her conclusion. These included the serious offenses charged and the potentially lengthy sentence associated with those offenses. She concluded that the prosecution had a strong case and further pointed out Maxwell’s ties to foreign countries as well as her considerable financial resources.

Accordingly, Maxwell was remanded to the custody of the U.S. Marshals Service to be held in custody until trial.

Such hearings are a common task for judges. Most do not receive the attention given to Maxwell’s case. Be assured the others are just as important to the people involved.

David Bernthal of Mahomet, a retired 21-year federal magistrate, is of counsel with the Webber & Thies PC law firm. His can be reached at

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