Since no one seems to care much about the presumption of innocence these days, it’s unsurprising that the brief mentions only the presumption of detention for people the government deems too dangerous to let out. But two lawyers accused of throwing a Molotov cocktail into an empty police car rather than use their license to accomplish whatever it is they believe to be justice?

After being released on bond by the district court, the accused went back into the can after the Second Circuit said “nope.”

Colinford Mattis and Urooj Rahman, both lawyers, had been freed on home detention, on $250,000 bonds, collateralized by family and friends, until the U.S. Court of Appeals for the 2nd Circuit revoked their bond on June 5 pending a decision on whether bail should be reinstated following a strong push by the government on the basis that the defendants were a continual danger to society. They were taken back into custody that day.

But that was just the interim ruling, and the appeal has yet to be decided. An interesting amicus has appeared to counter the government’s argument, made up of former federal prosecutors (which is usually a way of saying criminal defense lawyers, but with a title that gives them prosecutor cred).

Now, 56 lawyers who are not connected to the case are trying to weigh in, backing the defendants for the sake of upholding existing bail practice. Prosecutors in the Brooklyn U.S. attorney’s office have repeatedly said that Mattis and Rahman are a serious risk — refusing to credit their careers and family ties as mitigating factors.

The amici brief addresses a fascinating bit of sophistry propounded by the government.

In some cases, including the present case, a presumption of detention is applicable pursuant to 18 U.S.C. § 3142(e)(3), under which provision “a defendant bears a limited burden of production—not a burden of persuasion—to rebut that presumption by coming forward with evidence that he does not pose a danger to the community.” United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). To determine whether the presumption of dangerousness is rebutted, district courts must consider, among other things, “the history and characteristics of the defendant, including family ties, employment, community ties, [and] past conduct.” Id. (citing 18 U.S.C. § 3142(g)).

In other words, the argument against the presumption of detention for dangerousness is, by statute, grounded in a defendant’s “history and characteristics.” These are the sorts of things always raised in bail hearings, the bits of life that show the defendants’ normality, “family ties, employment, community ties, [and] past conduct.”

The government has used these very factors, the common attributes of a virtuous life, to prove the opposite, to show that these defendants cannot be released because despite these criteria, or worse, because of them, they chose to throw a Molotov cocktail.

“The defendants were caught on camera firebombing an NYPD vehicle,” Brooklyn prosecutors wrote in a court filing. They also “sought to incite others to launch similar attacks and attempted to distribute other Molotov cocktails to other protestors in furtherance of this objective.”

Cameras don’t discriminate, but they also don’t always provide a full picture.

Despite their professional stature, the duo “made the calculated decision to risk personal and professional consequences through the conduct that led to their arrests,” the U.S. attorney argued.

If “freedom is just another word for nothing left to lose,” these lawyers had everything to lose, and if they, indeed, made the “calculated decision” to engage in this conduct, their professional history is a double-edged sword. But this creates a dilemma, as the amici argues.

Although the government purports to focus its arguments on the specific record in this case (see, e.g., Gov. Br. 2, 20), it merely points out that each of the factors articulated by the defense predated the charged conduct. The logic of the government’s repeated assertion that a factor existing before the alleged offense cannot assure the safety of the community is without limiting principle. After all, at a bail proceeding, any factors that existed prior to the alleged crime must, inherently, have failed to deter its commission. The government makes no argument and offers no explanation to the contrary. Thus, the government’s position amounts, in effect, to a per se rule that bail must be denied to any  defendant in a case raising a concern of dangerousness where the factors that would support bail existed prior to the alleged offense.

In every case, if one doesn’t let the damn presumption of innocence get in the way or credit cameras as seeing into the evil soul of a defendant rather than just the overt conduct, the life they led up to the commission of the crime either failed to prevent them from doing the deed before, and so it provides no basis to believe they won’t do so again, or worse, it caused them to choose to commit the crime. As the argument is made in this case, the logic is no less applicable in any case, every case. After all, your loving family and great job didn’t stop you the first time, so why would it stop you the next time?

But as amici emphasize, this not only nullifies the statutory criteria for bond, but creates a circular argument from which no defendant can escape. It’s characterized in the brief as a “per se rule,” that the same personal history that would be argued to rebut the presumption of dangerousness simultaneously proves it. As logic goes, it’s got legs. And yet, it can’t be or no one detained by presumption will ever get out.

Such a per se rule is inconsistent with the Bail Reform Act, the case law, and the collective experience of amici. It would also shift from courts to prosecutors the ability to release defendants on bail, as the government would remain able to consent when release suits its purposes (such as in cases involving cooperating witnesses), but would be able to invoke the per se rule to bar release in other cases.

As bad cases make bad law, the allegations of lawyers getting caught on camera throwing a Molotov cocktail was custom made to produce doctrinal tsuris. Amici’s reliance on statute is legally undeniable, but it doesn’t do much to counter the government’s logic. Its concern about putting even greater power in prosecutor’s hands is certainly legit, but that too doesn’t refute the logic. Then there’s the “collective experience” point, since the 56 amici were all former Assistant United States Attorneys, and so are entitled by right to greater credibility than any other criminal defense lawyer. Will that be reason enough?