Alex Bunin

Alex Bunin is the Chief Public Defender for Harris County, Texas. He was the Federal Public Defender for Northern New York, Vermont, and Southern Alabama. He is Board Certified in Criminal Law and Criminal Appellate Law in Texas. He co-authored O’Connor’s Federal Criminal Rules & Codes (Jones McClure 2013). Alex is a graduate of the South Texas College of Law.

Proposal for Counsel at TEX. CODE CRIM. PROC. ART. 15.17 Proceedings

Abstract

The following is a proposal for a pilot program to provide counsel to criminal defendants at their initial appearance before a magistrate in Harris County.1 The intent is to provide advice and advocacy, as needed, with the least delay to the process.

Existing Procedure

Defendants arrested in Harris County appear before a magistrate who reads them their legal rights, assesses whether there is probable cause for the charges, sets or denies bond, and informs them of their right to counsel at future proceedings. The time from arrest to “magistration”2 is usually less than 24 hours. A magistrate, a deputy clerk, deputy sheriffs, and an experienced prosecutor are present at these proceedings. Defendants are either physically present or appear by video transmission.

Bond is typically in the form of cash, which can be met with the assistance of a commercial surety. The amounts of bond are determined by means of a schedule previously approved by the County Criminal Courts at Law for misdemeanors and the Criminal District Courts for felonies. Personal bonds (those that do not require a surety) are available in some cases.

Arrests occur and magistration proceeds 24 hours a day, seven days a week. Harris County has a direct filing system. Once charges are accepted, the case is assigned to a court and receives a case number. Defendants often appear in the court to which their case is assigned the following business day after magistration. Indigent criminal defendants are appointed counsel at that first appearance in the court of record.

Reasons for Counsel at Magistration3

There are policy and legal reasons for access to counsel at magistration. It satisfies defendants’ need to talk to someone without incriminating themselves in open court. It allows the magistrates to hear from trained attorneys4 instead of defendants, who may be unable to focus upon relevant issues or incapable of articulating applicable facts. As described below, use of this practice in other jurisdictions appears to show that it both saves money and reduces jail overcrowding without increasing the risk of releasing defendants who are either a danger to the community or a flight risk. Finally, United States Supreme Court and Texas authority imply that the participation of state actors may require the appointment of defense counsel.

Self-Incrimination

Rarely, if ever, do defendants speak to an attorney before they appear before a magistrate. Typically, they have spoken only to law enforcement and pretrial officers. Although each has likely told them they have a right to remain silent, criminal defendants are usually focused upon obtaining release from custody. When they appear before a magistrate, many are motivated to try to explain their situation in the hope that charges will be dismissed or bond will be set low. A review of magistration proceedings from 2012 to date reveals that it is fairly common for defendants to attempt to speak on their own behalf.5

The result is that defendants’ desire to speak will often overcome any formal warnings. Only lawyers, who can speak for defendants, are likely to convince them that it is not in their interest to openly discuss their cases on the record in front of prosecutors. For example, in one case the magistrate explained to the defendant that she should wait to discuss her case, but she persevered. After the defendant made an incriminating statement, the magistrate asked, “Are you done confessing?” A police officer in the back of the courtroom can be heard saying, “That’s a slam dunk.” In another example, there was an extended discussion by the defendant and the magistrate about the defendant’s citizenship status.

The presence of attorneys, who can explain to defendants how even minor admissions can affect their cases, would reduce the gratuitous statements by defendants that ultimately hurt them and do nothing to benefit the magistration process. This is especially important when defendants are speaking on the record and in the presence of experienced prosecutors who can take notes or get recordings of the proceeding to use against defendants.

In discussions with former Harris County prosecutors, many remembered occasions when defendants’ statements at magistration were used against them later in their prosecutions. The problem is not merely hypothetical.

Time

One of the natural hesitations about adding defense attorneys to the process is that it could slow down these proceedings. That is unlikely for two reasons. First, the attorneys’ interaction with the magistrates will replace that of the defendants. Defendants are already taking up time having discussions with the magistrates, often about issues irrelevant and unhelpful to determining probable cause or bond. Discussions between attorneys and clients will occur prior to the proceedings.

Second, attorneys will do a kind of triage. Not everyone who appears will benefit from advocacy at the initial bail hearing. Defendants who face the most serious charges and the high­est bonds (or no bond) are best addressed in the court of jurisdiction through a motion for bond reduction or a writ of habeas corpus. The most valuable use of lawyers’ time will be on borderline cases where lawyers can quickly proffer to the court information they have received from the defendant, family, or employers, or to simply emphasize favorable information discovered by pretrial services. In many ways, this mirrors what the prosecutors do—filling in gaps and advocating the facts most favorable to their side.

Cost

One might think that adding a lawyer to the process will be more costly. However, the addition pays for itself and can even save money. The savings comes from those defendants who are released from jail. Even the additional release of only a couple of defendants each day would save thousands of dollars annually.

There is now evidence that having defense lawyers at bail hearings does result in more persons being released by personal bonds or lower money bonds. A study has shown:

For eighteen months at bail hearings, the Baltimore City Lawyers at Bail Project (“LAB”) defended the liberty of nearly 4,000 lower-income defendants accused of nonviolent offenses. The study showed that more than two and one half times as many represented defendants were released on recognizance from pretrial custody as were unrepresented defendants. Additionally, two and one half times as many represented defendants had their bail reduced to an affordable amount. Indeed, delaying representation until after the pretrial release determination was the single most important reason for lengthy pre­trial incarceration of people charged with nonviolent crimes. Without counsel present, judicial officers made less informed decisions and were more likely to set or main­tain a pretrial release financial condition that was beyond the individual’s ability to pay.6

That study is corroborated by earlier studies that came to the same conclusions, but with less sophisticated social research techniques.7 Most impressive was that one of the authors, Professor Douglas Colbert, initiated the study with the use of law students. He convinced a Baltimore magistrate to allow the students to appear and act as advocates at the initial bail hearings. The results were dramatic.8 The results in Harris County would likely be less substantial, because defendants in Baltimore often remained unrepresented for weeks; but even a small increase in released defendants would provide significant savings.

The lawyers would not be salaried county employees, but a list of qualified private assigned counsel who would be paid hourly for shifts that include nights and weekends. The compensation would be similar to what is already approved for appointed work. The Public Defender’s Office could oversee their training and scheduling, subject to court approval.

Benefit to Defendants

The importance of counsel at other proceedings in a criminal case is accepted and uncontroversial. Many of the same benefits will accrue at magistration. Defendants will have someone to talk to in confidence, lawyers can answer their questions, and lawyers can speak on defendants’ behalf.9 It can also help get some defendants released from custody in what were already close calls.

There is a common misconception that time and money spent upon obtaining release through a bond is better used to hire an attorney. Statistics refute that belief. For example, 34 percent of the detained clients represented by Harris County Public Defender’s Office avoided a final conviction because their cases were either dismissed or because they received deferred adjudication. However, a higher 58 percent avoided a final conviction when they were out on bond during their case.10 Surprisingly, when defendants retained counsel but remained in custody, their rate of conviction increased.11

Defendants have obligations apart from those required by the criminal justice system. They may have jobs and family that will be affected by their incarceration. Even 24 hours in custody can mean the loss of employment or the inability to care for children, parents, or siblings. These effects go beyond the defendants’ families and cost money to employers and businesses. Opportunities to bring relevant information to the courts’ attention may not affect every case, but enough cases to justify their worth.

Benefit to the Court

The magistrates will be assisted by trained lawyers who can point them to relevant information about defendants that is necessary to determining probable cause and bond.12 A model for this is the federal system, in which there is a statutory right to counsel at initial appearances where release and probable cause are determined. Although federal criminal defendants have rights to preliminary hearings (unless indicted) and to detention hearings, most of these issues are informally resolved by agreements between the parties and by proffers to the magistrate judge. Texas magistration proceedings are not designed to be full evidentiary hearings.

Addressing defendants’ bond issues at the first opportunity reduces the need for reviewing them later. It is much better to make rulings when both sides can provide information, than to second-guess decisions previously made. There is a natural hesitancy to reconsider what others have already done.

Legal Justification

As discussed above, there are practical reasons for providing counsel at magistration proceedings, but there is a legal basis as well. In Green v. State, the Texas Court of Criminal Appeals held that a criminal defendant’s Sixth Amendment right to counsel was not violated when he appeared without counsel before a magistrate for his “preliminary initial appearance” after arrest.13 That ruling may now be superceded by the United States Supreme Court’s opinion in Rothgery v. Gillespie County.14

In Rothgery, the Supreme Court held that a defendant’s Sixth Amendment right to counsel attaches at an Article 15.17 hearing.15 The Court recognized that “[f]rom that point on, the defendant is ‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’ that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal.”16

The Rothgery opinion discussed whether a particular stage of the criminal proceedings against the accused is “critical,” and thus required the presence of counsel unless the right to counsel is waived, in a manner that is broader than the critical stage analysis employed by the Court of Criminal Appeals in Green. The Rothgery Court noted that a stage is critical if it is a proceeding between an individual and agents of the state, “whether formal or informal, in court or out, that amount to trial-like confrontations at which counsel would help the accused in coping with legal problems or meeting his adversary.” That sounds very much like what a defendant faces in Harris County by the presence and participation of an experienced prosecutor at magistration.17

Additionally, the Court of Criminal Appeals’ decision in Green preceded the Fair Defense Act.18 The Act requires each county’s written indigent defense procedures to “ensure that each defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings.”19 Read in conjunction with Rothgery, which holds that the Article 15.17 hearing is a judicial hearing that commences adversary judicial proceedings,20 a strong argument can be made that Article 26.04 requires appointment of counsel before the Article 15.17 hearing. In fact, if counsel is not appointed before the Article 15.17 hearing, the statute itself provides that the magistrate must allow an arrested individual to consult with counsel before the portion of the hearing at which bail is set.21

Challenges

There are practical and legal questions surrounding this proposal. Anything that adds another step of legal representation costs money and adds time to the process. However, as addressed above, the practical aspects are offset by the benefits to justice, the potential for reducing jail population, and savings in the long run.

The legal questions concern allowing one lawyer at magistration and another for the remainder of the case. This raises issues of vertical representation, conflicts of interest, and confidentiality. Vertical representation is addressed in the American Bar Association’s Ten Principles of a Public Defense Delivery System. (“7. The same attorney continuously represents the client until completion of the case.”). More importantly, in Texas an appointed attorney:

[S]hall… represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record.22

These rules assume an attorney is appointed as early as possible and represents each client from that point forward to avoid discontinuity. The rules do not take into account the present situation in which defendants simply have no counsel at magistration and virtually never have.23 In reality, substitutions of appointed counsel occur all the time when conflicts emerge, when the attorney-client relationship fails, or when other unforeseen events occur that prevent one attorney from continuing. They are not in themselves destructive to the representation, just not ideal.

Under the Texas statute, the only question would be whether substitution after magistration is for “good cause.”24 The ability to facilitate a defendant’s Sixth Amendment right to counsel seems to meet that definition. The only other alternative would be to make all permanent appointments begin at magistration. That would be a significant and difficult change for the third-largest county in the United States. On the other hand, New York City has used such a model for many years.

The issue of conflicts is resolved primarily by the attorneys’ limited role in the case. They are there to advocate for release, not to advise about potential case outcomes. They will have little opportunity to talk to defendants, and that time is best used to help them get a personal bond or a cash bond they can afford. Discussions about the case itself are better left for an extended meeting with the trial attorney later. The likelihood that representing someone at a 15.17 hearing will result in an actual conflict is virtually nil.25

Confidentiality is the same for all attorney-client relations. If someone talks to an attorney for the purpose of receiving legal advice, the conversation is confidential and the attorney-client privilege applies.26

Next Steps

Implementation of this as a pilot would require a majority vote of support by the judges of the Harris County Criminal Courts at Law and Criminal District Courts. I suggest that this proposal be studied by the judges, magistrates, court administration, Pretrial Services, District Clerk, Sheriff, District Attorney, Harris County Criminal Lawyers Association, and Criminal Coordinating Council. Although funding will ultimately be the responsibility of Harris County, a pilot like this is an excellent project for seeking grants to get it started.

Notes

1. There is no reason why a version of this plan could not be applied in any Texas county.

2. Various forms of this term have been recognized by the Texas Court of Criminal Appeals. See Watson v. State, 762 S.W.2d 591, 594 n. 4 (Tex.Crim.App.1988). The term encompasses the proceedings required by Article 15.17 of the Texas Code of Criminal Procedure. See Rothgery, at 195 (“Texas law has no formal name for this initial appearance before a magistrate, which is sometimes called the ‘article 15.17 hearing’; it combines the Fourth Amendment’s required probable-cause determination with the setting of bail, and is the point at which the arrestee is formally apprised of the accusation against him”) (internal citations omitted).

3. Three questions are typically raised when discussing the propriety of such a proposal. Each is addressed in this paper. The first is related to “vertical representation,” or pursuant to Tex. Code Crim. P. Art. 26.04(j), that appointed counsel remain on the case until the conclusion of all proceedings. The others are potential conflicts of interest and attorney-client confidentiality.

4. Although the plural is used here, it is only expected that one defense attorney would be used per session, as there is only one prosecutor.

5. Pursuant to the settlement in Roberson v. Richardson, H-84-2974 (S.D.TX 1987), all magistration proceedings are recorded and saved for 120 days.

6. Douglas Colbert, et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719 (2002).

7. Id. at p. 1747–48.

8. Id. at p. 1735–36 and n. 44.

9. Plans for the proposed “Joint Processing Center,” where arrested defendants will be taken for booking, include attorney-client meeting rooms.

10. Council of State Governments, Justice Center, Improving Indigent Defense: Evaluation of the Harris County Public Defender (2013), available at http://harriscountypublicdefender.org/wp-content/uploads/2013/10/JCHCPDFinalReport.pdf. A similar pattern, but with a slightly smaller divergence in outcomes between detained and released defendants, holds for both assigned and retained counsel in Harris County. Overall, results improved by 10 percent when the defendants were released.

11. Id.

12. “At first, some judges complained about lawyers wasting precious time. Some questioned why lawyers were needed at all when a pretrial representative was present. But as the semester progressed, students convinced judges of the value of representation. They presented rich, concise snapshots of a client’s family, employment, and personal reliability within the same time it had taken judges to explain the proceedings to unrepresented defendants. Most judges appreciated the additional corroborated information and recognized the different roles played by advocates and the neutral court representatives previously relied on.” Colbert, et al., supra at 1735.

13. 872 S.W.2d 717, 722 (Tex. Crim. App. 1994).

14. 554 U.S. 191 (2008).

15.17. 554 U.S. at 199.

16. Id. at 207 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

17. After Rothgery, some state courts have recognized that defendants have the right to counsel at initial bail hearings. See, e.g., Hurrell-Harring v. New York, 15 N.Y.3d 8, 20, 930 N.E. 2d 217, 223 (2010) (“[t]here is no question that ‘a bail hearing is a critical stage of the State’s criminal process’”) (quoting Higazy v. Templeton, 505 F.3d 161, 172 (2d Cir. 2007); DeWolfe v. Richmond, 434 Md. 444, 456 (2013) (holding that state constitution provides right to counsel at initial bail hearings).

18. The “Fair Defense Act” is the popular name for all of the 2001 revisions to state statutes governing indigent defense. Texas Fair Defense Act, 77th Leg., R.S., ch. 906, 2001 Tex. Gen. Laws 906.

19. Tex. Code Crim. Proc. Art. 26.05(b)(3).

20. Rothgery, 554 U.S. at 213.

21. “The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail if allowed by law.”

22. Tex. Code. Crim. Proc. Art. 26.04 (j)(2).

23. It is possible some retained counsel has managed to get to a Harris County magistration proceeding in time to represent a client, but research has uncovered no instance.

24. “[We] define ‘good cause’ as ‘a substantial or legal cause as distinguished from an assumed or imaginary pretense.’” Ex parte Byram, 974 S.W.2d 384, 386 (Tex. App.—San Antonio, 1998).

25. It would be easy to develop a form for defendants to sign acknowledging they intend to talk to the lawyer provided at the 15.17 hearing solely for the purpose of seeking advice and advocacy regarding release.

26. Texas Rule of Evidence 503 protects confidential communications “made for the purpose of facilitating the rendition of professional legal services to the client.” Tex.R.Evid. 503(b)(1); see also Huie, 922 S.W.2d at 922; In re ExxonMobil Corp., 97 S.W.3d 353, 357 (Tex.App.—Houston [14th Dist.] 2003, no pet.).