VIDEO: Travis County Violating Rights by Barring Attorneys From Bail Hearings, ACLU Claims

Virtual hearings at times conducted through slots in jail cell doors

“I’m ready to go home, I know you are too,” a Travis County judge said to a jailer just after 5am last Friday, April 12.

The judge and the jailer spoke over Zoom, the laptop bouncing as the corrections officer carried it up a flight of stairs in the Downtown Travis County Jail. Upon approaching a heavy steel door, the officer opened a narrow slot and yelled into it. “Ma’am, hey, the judge is here to talk to you.”

The woman in the cell, arrested for suspected drug possession and drunk driving, approached the meal tray opening. With the Zoom screen aimed at the food chute, the judge began reciting the woman’s rights: the right to remain silent, the right to an attorney, and the right to free legal counsel should she be unable to afford it.

“I’m half-asleep,” the woman in the cell said Friday. “Is there some way that I could see you and your face?”

“I can’t hear her. What’s she asking me?” The judge asked the officer. With no defense attorney present to speak for the woman, the jailer spoke for her, relaying that she wanted “to see you physically.”

The judge then responded to the woman in her cell: “I’m downstairs, you’re upstairs. But we’re in the same building.”

The woman responded from inside her echoing jail cell: “I’m trying to see you. I don’t understand why I’m talking to you through this thing.”

After some back and forth, the judge informed the woman of her charges: two felonies, which could result in 10 years in prison, with a $21,000 bond to get out of jail. The judge continued, “Do you have any questions regarding your charges or bond amounts?”

“Yes, ma’am, I do. Do you have me on mute?”

In many states, bail hearings look like other court proceedings, in courtrooms with lawyers in suits. In Travis County, it’s not uncommon to conduct these bail hearings, called “magistration,” via Zoom from jail cells. More often, they occur in open spaces between rows of cells in the Downtown jail, or in the cramped courtroom in its basement. But no matter where they occur, Travis County does not allow defense attorneys to be present to advocate for their client’s release from jail.

“What I see [in this hearing] is law enforcement and a judge who are in many ways, one could say, making best efforts in the context of their job,” UT law professor Jennifer Laurin told the Chronicle. “Yet, structurally, you could not say with a straight face that these proceedings look like they’re taking constitutional rights seriously in any way.”

The Right to Counsel

A man during his bail hearing looks through his cell’s meal tray slot to a computer where the judge is on Zoom (screenshots via Travis County Courts / Youtube (Edited by Zeke Barbaro))

Travis County’s initial bail hearings are the subject of a new ACLU lawsuit which could have an impact on bail hearings nationwide, if it makes its way up to the Supreme Court. The suit describes hearings taking place through food tray slots, but the bigger issue is that all hearings happen without a defense attorney present.

The class action lawsuit filed April 10 claims that Travis County is violating thousands of people’s rights every year by denying them attorneys – specifically, the Sixth Amendment right to counsel and the 14th Amendment rights to due process and equal protection.

Before filing suit, the ACLU observed more than 600 magistration hearings from January through March of this year. They found two out of three people were required to pay bail to be released from jail, and most often, the judge did not offer rationale for the bail amount set.

The ACLU argues that arrestees who don’t have a lawyer arguing on their behalf are more likely to be jailed while they await trial and, as a result, they are more likely to receive a harsh sentence, or even plead guilty to crimes they didn’t commit.

They found that, during hearings, judges sometimes explicitly stated how a lawyer’s presence would result in $0 bail. Magistrate Judge Tanisa Jeffers, perhaps the busiest magistrate because she works the night shift, described this to a defendant in a jail cell last Friday.

“You must hire an attorney or bondsman, and pay them five to 10% of the bond amount or, in the alternative, I have appointed you an attorney this morning who can get you out for free, but they are not likely to see you until Monday morning because today’s Friday,” she explained to the defendant.

If a $0 bond is likely in a few days anyway, why not offer it right then and there? Because at that point, without an attorney’s arguments, “I don’t have the information I need,” Jeffers told the Chronicle. Bail is a financial incentive for defendants to show up in court, and to forgo bail money, judges want to know that financial incentive isn’t necessary. “The attorney will tell me, look, he’s going to live with his aunt, or hey judge, I’ve got a bed lined up for him at [a shelter] and a case manager for him and he’s going to agree to go to rehab.”

Of course, the same impoverished people who struggle to prove they have a place to stay and transportation to get to court usually cannot afford attorneys.

So one of the ACLU’s arguments is that Travis County’s system violates the right to equal protection under the law. Hired attorneys can advocate for their clients’ release, speaking to magistrates one-on-one in their offices day and night. Meanwhile, for people who cannot afford an attorney, “Travis County conducts magistration under a different set of procedures that provide far fewer protections against wrongful detention,” the suit says.

A corrections officer yells into a cell to inform a defendant that “the judge is here”

Why Haven’t We Ironed This Out Yet?

The claims in the ACLU’s suit have been made before. Notably, in the 2018 case Booth v. Galveston County, which made the same arguments about a right to counsel.

That case died at the 5th U.S. Circuit Court of Appeals, though. Then, judges decided a 2021 Texas law changed the bail hearing process enough to render the 2018 case moot.

“It remains a truly open question of constitutional law,” Laurin said, “whether an initial appearance that involves only a bail determination is a critical stage at which the Constitution guarantees provision of counsel.”

A 2008 case, also out of Texas, came very close to affirming that right to counsel at bail hearings. But not close enough to clear up the issue. In Rothgery v. Gillespie County, a man who lacked counsel at his initial hearing sued over his excessively long jail stay. The case worked its way up to the Supreme Court, which ruled that “counsel must be appointed within a reasonable time ... to allow for adequate representation at any critical stage before trial.” But the court didn’t define what a “critical stage” is, so for 16 years it’s been unclear whether initial bail hearings count.

After the Supreme Court ruled in 2008, the case moved back to federal District Judge Lee Yeakel’s court in Austin where further clarification might have emerged, but lawyers settled the case before Yeakel touched it again. He retired from the bench last year, and this new ACLU case is in District Judge Robert Pitman’s hands. Yeakel said he hadn’t read the ACLU complaint yet, but offered his belief about whether magistration is a critical stage: “The fact of bail is consequential – whether you’re going to get it or be left in jail. And then the amount of bail is consequential,” Yeakel said. “My personal belief is that, at any stage in which your freedom is at risk, you should be provided counsel.”

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ACLU, CAFA, magistrates, Travis County Jail, counsel at first appearance, bail

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