Friday, October 24, 2008

Many Texas counties not complying with SCOTUS' Rothgery ruling

Many Texas counties have yet to update their indigent defense plans to accommodate the US Supreme Court's Rothgery decision this spring, according to presentations at a statewide conference of the Texas Task Force on Indigent Defense this week. If local officials aren't careful, such omissions could lead to confessions and other evidence being thrown out of court, the group was told.

The main problem occurs when an indigent defendant requests an attorney but then is somehow able to make bond - a particularly common occurrence on misdemeanor cases and penny ante felonies where bond amounts are low. Defendants in custody, for the most part, have counsel appointed promptly, but not always those who bail out.

Before Rothgery, Texas law did not require appointment of counsel until a defendant was acutally indicted, which could be weeks or months after the initial arrest. But SCOTUS said that the "magistration" hearing, where bail is set, marks the initiation of adversarial proceedings that requires appointment of counsel, speakers told the group.

In Texas, if a defendant is in custody, the law requires counsel to be appointed within 1-3 working days depending on the size of the county, "if an indigent defendant is entitled to and requests appointed counsel and if adversarial proceedings have been initiated." In Rothgery, SCOTUS said adversarial proceedings begin upon magistration and a lawyer must be appointed within a reasonable time thereafter. However, the confusion comes under Texas Code of Criminal Procedure 1.051(j), which adds that:
if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant's first court appearance or when adversarial proceedings are initiated, whichever comes first.
Rothgery contradicted and essentially overrides that language, but SCOTUS did not proscribe a policy to replace it. The court only declared that adversarial proceedings initiate at magistration, but declined to specify how long counties have thereafter to appoint counsel.

The "whichever comes first" language could arguably mean that - since we now know precisely WHEN adversarial proceedings commence - counsel must be appointed within 1-3 days of magistration. But Texas Association of Counties General Counsel Jim Allison disagreed with that analysis, saying counties must only appoint lawyers within a reasonable time, though the longer they wait, he said, the greater the risk a delay will harm their case.

At a minimum, said Allison, counties can no longer wait until indigent defendants are indicted to appoint a lawyer - doing nothing is not an option. The safest practice, Allison declared, would be for counties to treat defendants the same regardless of whether or not they're out on bond - that's the only way to know for sure you'll be in compliance with the SCOTUS ruling, he said.

Counties that fail to appoint counsel after magistration risk having interrogations, confessions, line-ups, and other investigative efforts thrown out based on the court case Michigan v. Jackson, said Texas Fair Defense Project chief Andrea Marsh. That case held that "post-arraignment confessions were improperly obtained - and the Sixth Amendment violated - because the defendants had requested counsel during their arraignments but were not afforded an opportunity to consult with counsel before police initiated further interrogations."

District Judge Dib Waldrip from Comal County told the group counties should try to screen cases between arrest and the magistration hearing, dividing cases into "the good, the bad and the ugly," to get rid of bad cases before setting bail and identify ones where more investigation is needed before a defendant can be prosecuted. Not only would that practice help counties better comply with Rothgery, they're wasting taxpayer money on pretrial detention not to do so, said the judge and former DA.

See prior, relate Grits posts:


Anonymous said...

Which counties are not complying?

Anonymous said...

Well Grits, does it not seem logical that if you can post bail, which generally requires a 10% to 15% payment of the total of bond to a bondsman, that you are not indigent?

Anonymous said...

Article 15.17 Texas CCP seems to contradict 1.01(j). What do you think?

Gritsforbreakfast said...

To 8:05 - it'd be a shorter list of which ones are complying. At the end of the event the counties represented went around to identify an "action plan" they would try to implement when they returned home, and virtually all of them cited the need to revamp their indigent defennse plans to comply with Rothgery, and several said their judges weren't even really aware of it.

To 8:08, no, that doesn't seem logical at all if you understand how the system actually works. If your bond is $1,500 for a midemeanor, you pay $150 to a bondsman to get out, does that mean you can afford to pay a lawyer? How about if your parents pay your bail? Your assumption makes sense only if you ignore how these processes play out in the real world

Gritsforbreakfast said...

To 8:13, the SCOTUS ruling invalidated 1.01(j)

Anonymous said...

Well, it looks like if they followed 15.17 they would not have had a problem to start with and Gillespie County would not have been sued.

I thought all counties were mandated to implement their plan before January 1, 2001. That's what we did. It's about ten pages long.

Our district judges met before the law went into effect in 2001 with every sheriff's office, police department, justice of the peace, county and district clerks in their judicial district and made one thing perfectly clear....

that indigent appointments would take place at the initial appearance (setting of bail) in accordance with 15.17., not after the person was released.

The legislature implemented conflicting statutes.

Anonymous said...

Rothgery did not invalidate Article 1.051(j). Rothgery says that adversary judicial proceedings begin at the Article 15.17 hearing. 1.051(j) says ("notwithstanding any other provision of this section") that for those making bond that counsel is to be appointed upon initiation of adversary judicial proceedings. Article 1.051(c) requires appointment of counsel within one or three working days of the receipt of the request by the appointing authority.

There is no contradiction between Article 15.17 and Article 1.051. Article 15.17 deals with requirements for magistration. Article 1.051 deals with appointment of counsel.

Gritsforbreakfast said...

10:41 - Rothgery certainly invalidated the part of (j) that said appointment is not required for defendants not in custody. (j) assumes a definition of when critical stages begin that SCOTUS changed.

I personally agree with your interpretation but that's not how the General Counsel at the Texas Association of Counties is advising his people. According to him, it's clear from (j) the Lege did not intend to require appointment of counsel at magistration for those who bond out, so statutory construction rules don'[t allow you to ignore the phrase in (j) that says "if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required ...". You can't interpret a statute to produce an absurd result, he declared, and to say it's not required until something happens but that that thing happened in the past would be an absurd result, according to Allison. That's his position, anyway.

Andrea Marsh of the Fair Defense Project said she's heard this argument from many counties who are trying to find wiggle room in Rothgery, but it may backfire. If they don't adopt the 1-3 day timeline in (c), she says, the language in (j) would rule which requires appointment "when adversarial proceedings have initiated." That would be at or before the magistration hearing itself, not 1-3 days afterward.

Allison wants to say SCOTUS' "reasonable time" is the only requirement, but I aqree either provision of Texas law which might be applied would require appointment much sooner. The courts just haven't split those hairs yet.

Anonymous said...

To 10:41

If this is not talking about appointment of counsel I don't know what is. Notice it says SHALL.

Art. 15.17. DUTIES OF ARRESTING OFFICER AND MAGISTRATE. (a) In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in any other county of this state.

The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel.

If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04 to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordance with Article 1.051.

Gone to the hunting lease!

Gritsforbreakfast said...

15.17 certainly says that, but subsection j of CCP 1.051 contains the phrase, "notwithstanding any other provision of this section", appointment is NOT required for those not in custody.

Rothgery clearly mooted that part of 1.051(j), but the issue isn't 100% cut and dried ... maybe 98%, though. In my (non-lawyerly) opinion, they must either now appoint immediately at magistration or in the 1-3 day timeframe of subsection (c).

Expect the Lege to update the language in 1.051(j) to comply with Rothgery in some way, shape or form - the Association of Counties will certainly be pushing them to do so.