When a person is arrested on federal charges, often the government wants him detained (held without bail) while the case is pending. The government will file a motion for detention, and a magistrate judge will hear evidence to determine whether the accused should be detained or released on conditions.
The issue in a detention hearing is whether there is any combination of conditions of release that will ensure that the accused will appear in court and not harm the community. In federal drug conspiracy cases, there is almost always a presumption of detention. When the magistrate finds that there is probable cause to believe the accused committed a federal drug crime with a possible sentence of ten years or more, it is presumed that no combination of conditions of release will ensure his appearance and the safety of the community.
An indictment is enough to show that there is probable cause. So a person indicted for a federal drug conspiracy is at a disadvantage from the beginning of a detention hearing.
While the vast majority of people for whom the government seeks detention are detained (it’s called a detention hearing for good reason), there are at least three good reasons to fight for release on conditions in virtually every case.
First, you might win. A few federal magistrate judges won’t simply rubberstamp the government’s detention request; they will actually listen to the evidence and consider whether the appearance of the accused and the safety of the community can be assured. Sometimes the government will flub and give the magistrate judge a reason to doubt the strength of its case (one of the factors the magistrate judge can consider in making her detention). The advantage to the accused of release on conditions is obvious; for the defender, it’s generally easier to defend a case when the client is at large than when he is incarcerated.
Second, you may learn something about the case that you wouldn’t otherwise know. The government will often put an agent on the witness stand to explain in broad strokes the case against the accused. The defense then gets an opportunity to cross-examine the agent and, if the agent thinks he knows something about the case, make a record of what evidence (photos? video? wiretaps? audio recordings?) the government has and does not have against the accused. (I won a federal cocaine conspiracy jury trial in the detention hearing once because the agent couldn’t resist gilding the lily in the hearing.)
Third — and this makes the detention hearing a critical phase in any federal criminal case — the accused gets a chance to see you fighting for him. The detention hearing is often the only opportunity the accused gets to see you in action in court before he has to make the go/no-go decision of trying the case or pleading guilty. If you have fought for him in the detention hearing, he will have more confidence in your ability to defend him in trial, so he’s more likely to trust your advice that he go to trial. On the other hand, he will know that you’re not afraid to fight, so he is more likely to trust your advice that he plead guilty.
There are very very rare circumstances that justify waiving the detention hearing. I’ve done it once or twice in twelve years — never without a good reason. “Because we won’t win” is never a good reason.