Eastern District denies challenge to initial cash bond

The Court of Appeals Eastern District on Dec. 14 turned aside a challenge to the practice of setting bond as part of the initial arrest warrant in criminal cases. Now the attorney who brought the challenge hopes the Missouri Supreme Court will take up the matter.

Matthew Mueller of MGM Law in St. Louis represents Cordell Nichols Jr., who was given a $30,000 cash-only bond when he was arrested in December 2019 for unlawful possession of a firearm. 

Two days later, Nichols appeared before a judge, who ordered the defendant held without bond due to his lengthy criminal record. Nichols later pleaded guilty to the charge.

Mueller filed a declaratory judgment action arguing Judge Thomas McCarthy erred in setting the $30,000 bond without evidence of the defendant’s ability to pay.

In 2019, Supreme Court Rule 33.01 was revised to state that cash bail cannot be imposed without an individual assessment of an arrested person’s financial circumstances, among other factors. Mueller argued that the initial bond was entered with no such information and was essentially arbitrary.

The Eastern District disagreed, finding that the rule requires only that the judge rely on “available information” when setting bond in an initial arrest warrant. It wasn’t feasible, the court said, for police, prosecutors and courts to gather that information at that stage, and the defendant can always challenge the amount of the bond at later hearings. 

Mueller, however, says judges should not set a cash bond at all in the initial warrant. Instead, he says, the court should either issue a summons for the defendant to return to court, or else order him held without bond based on a finding that the defendant is dangerous. 

“If you don’t have information about ability to pay, then the court should be precluded from imposing a cash bond,” Mueller said. He said he plans to ask the Supreme Court to take transfer of the case.

The case is Nichols v. McCarthy, ED109897.