In a new paper published this month in the Hofstra Law Review, Grits contributing writer Sandra Guerra Thompson argued that prosecutors are ineffective at preserving defendants' rights at bail hearings when there's no defense lawyer there, and makes the case that "ethically barred from participating in bail hearings unless defense counsel is also provided."
As it turns out, "In about half of all local jurisdictions today, arrested individuals face a judge at a bail hearing without the assistance of counsel, and in many of those jurisdictions, prosecutors may appear on behalf of the state." In fact, "The ABA Standards for Criminal Justice: Prosecution and Defense Function apparently took the position of preferring the presence of prosecutors in all cases, even those in which a party appears without counsel. The rules assign prosecutors in those cases to protect the rights of the unrepresented accused, effectively casting the prosecutor as a surrogate defense attorney."
Guerra Thompson's article "demonstrates the various ways in which prosecutors are charged with protecting arrestees and concludes that time has proven this approach to be unworkable and ineffective in protecting the rights of defendants at bail hearings."
Her article appears at a time when litigation in Harris County has raised the question of one-sided bail hearings where prosecutors appear before judges without the defendant being represented by counsel. It'd make the process a lot cleaner if the Lege simply required courts to appoint counsel for the indigent by this stage.
Unfortunately, it appears more than normal in many jurisdictions in Texas (including Austin) for bail to be set in the absence of counsel who are able to advocate for the Defendant's rights. While I understand that the Defendant's attorney can request a hearing on bail, that hearing, if it is held, is often days after the arrest, at which point the Defendant's job (if he/she had one) is likely gone. I don't understand why courts don't take a more expansive reading of Rothgerry to require providing counsel at any time when there is a liberty interest such that bail is a point where that interest is imperiled. But what do I know?
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