Massachusetts Appeals Court Rules Bail Money Cannot be Used to Satisfy Restitution Order

The Massachusetts Appeals Court today held it was error for a superior court judge to order bail posted on behalf of the defendants by their family members could be used to partially satisfy a large restitution order against them.  The name of the case is Commonwealth v. Unitt. 

The defendants, who were married to each other, operated a law firm in Woburn.  The husband was an attorney and the wife was the secretary, paralegal, and business manager.  According to a newspaper report, the wife concocted a scheme to accept money (approximately $1 million) from the clients of the husband’s firm, filter the money through the firm’s business accounts, and then use the money to finance her expensive lifestyle.  The wife went to trial in 2013 and was convicted by a jury of larceny, embezzlement, and being a common and notorious thief.  A superior court judge sentenced her to serve a total of eight years in state prison followed by 20 years of probation.  Two months later, the husband pled guilty and was sentenced to a short jail sentence followed by four years of probation.  The defendants were ordered to pay nearly $800,000 in restitution to their victims.

At the time of their arraignments, a superior court judge set bail in the amount of $50,000 for each defendant.  Within a few months, the defendants’ adult children posted each defendant’s bail.  The defendants appeared at all of their court dates, which was the only condition of their bail.  After the cases concluded with the defendants’ convictions and the imposition of their sentences, their children tried to get the bail money back.  Assuming a defendant does not default on a court date, the normal procedure is for the bail to be returned to the surety (the person who posted the bail) when the case is over.  In this case, a superior court judge decided the bail money should go toward the restitution figure.  The defendants’ children presented evidence that the bail money was loaned to them by third parties, and they produced documents supporting that claim.  Nevertheless, the judge concluded the loans were shams and the bail money really belonged to the defendants.  Therefore, reasoned the judge, the money should be transferred to the victims of the defendants’ crimes.

It didn’t take long for the Appeals Court to reverse the superior court judge’s clearly erroneous order.  The bail statute in Massachusetts makes clear that if a defendant appears in court as ordered, the bail shall be returned to the surety at the conclusion of the case.  The Appeals Court noted that the language in the bail statute is “plain and unambiguous” and said it was improper for the judge to inquire about the nature of the sureties.  The Court said if the bail money truly did belong to the defendants, and the sureties’ claim to the money was fraudulent, the judge could have ordered the forfeiture of the bails.  However, the judge in this case failed to hold an evidentiary hearing on the issue and made findings of fact in support of her order that were unsupported by the evidence.  Accordingly, said the Appeals Court, the judge’s findings are “fatally flawed” and the defendants’ children will be permitted to get their money back.