Travis County Tests Program to Provide Legal Defense at Bail Hearings
Stakeholders agree growing Counsel at First Appearance critical
By Austin Sanders, Fri., May 3, 2024
The courtroom is mostly empty except for a few scattered observers and, critically, several people in the well of the court – attorneys, a judge, clerk staff, sheriff’s deputies. A name is called, and a man enters clad in the prison stripes given to inmates of the Travis County jail.
“You’ve been given a chance to talk to your lawyer,” Judge Mike Denton says from the bench, while looking the defendant in the eye. The man, charged with possession of a controlled substance – a third-degree felony – is standing beside his defense attorney. A prosecutor is also standing at the bench, a few feet away. “I’ve been informed that the state agrees to your lawyer’s request for a [personal recognizance] bond, which I am granting,” Denton continues, addressing the defendant.
After outlining conditions of the bond – the defendant must submit to a substance abuse evaluation – Denton says he will sign the PR bond. The defendant heads back to a room connected to the courtroom where defense attorneys are interviewing clients and begins the formal process of being released from jail.
A similar process played out for 49 defendants across two days, April 23 and 25, as Travis County tested out a renewed version of Counsel at First Appearance (CAFA) – a program that could, eventually, ensure every person arrested in Travis County receives legal counsel at their initial bail hearing. Research shows that providing legal defense to arrestees at their first bail hearings produces better outcomes for criminal defendants.
For one, they are less likely to be booked into jail (even short jail stays can have devastating impacts on a person’s employment, housing, and children); also, they are more likely to be diverted from prosecution or receive less punitive sentences. Another benefit of the program: Clients represented at magistration (an arrestee’s initial bail hearing) by attorneys within the Travis County Public Defender’s Office will stick with those attorneys for the life of their case. Known as “vertical representation,” the practice helps build trust between attorney and client.
Beyond creating more just and equitable outcomes for defendants (especially those considered indigent), defense attorneys who participated in CAFA testing pointed to another benefit of the program – offering dignity to defendants who are often facing this portion of the criminal justice process alone. “Each client is important and they often don’t feel heard for a long time,” Angelica Cogliano, an Austin-based defense attorney who serves on the board of directors for the National Association of Criminal Defense Lawyers, told us. “They are humans going through something very traumatizing. Just having someone nearby at the beginning of that process can be meaningful.”
The two days of CAFA testing represent the first steps taken by Travis County to ramp up to full implementation of the program – that is, offering it 24 hours a day, seven days a week, on every day of the year. The ramp-up will continue in May, when criminal court judges will preside over four shifts in total. (Travis County Probate Judge Nick Chu presided over the April 23 shift and visiting Judge Mike Denton handled the April 25 shift.) The following month, city of Austin magistrate judges will handle four shifts (as agreed to in the interlocal agreement between the city and county governing operation of the county’s Central Booking Facility) and criminal court judges will handle four more shifts.
County officials hope that last week’s test will allow stakeholders to figure out the most efficient way to continue growing the program, with the goal of continuing on with eight shifts in July, August, and September. The road to implementation of CAFA, thus far, has been bumpy – with stakeholders in agreement that the program is worthwhile but disagreement on how it should be implemented. ACLU Texas has also filed a lawsuit against Travis County alleging that by not providing CAFA (a pilot version of the program was tested and abandoned in 2022), the county is violating the constitutional rights of criminal defendants. The suit urges more rapid implementation of the program.
For Chief Public Defender Adeola Ogunkeyede, the testing underscored the vital importance of CAFA – a program that she has fought to implement since starting on the job four years ago. “I cannot stress how important it is to talk with clients about how a jail stay might affect their life,” Ogunkeyede said.
But full implementation of CAFA will require a permanent location – the 2022 pilot was conducted in the jail, which presented a range of problems that continue to exist today, and the 2024 test shifts were conducted in the auxiliary courtroom on the first floor of the Blackwell-Thurman Criminal Justice Center. That courtroom was reserved specifically for the test shifts and will not be available for CAFA’s permanent use.
Travis County Sheriff Sally Hernandez emphasized the importance of finding a permanent venue to conduct CAFA hearings. “We’re still working out the details when it comes to technology, infrastructure, staffing and processes,” Hernandez said in a statement. “CAFA still needs a permanent home that TCSO is able to run 24/7, but I’m not sure our partners in the endeavor are ready to do the same.”
That’s critical, Hernandez said, because CAFA is not merely a jail operation, it is a process that involves the entire justice system. Indeed, stakeholders told us that the presence of district and county clerk staff during the two test shifts played a huge role in the proceedings running so smoothly. “[CAFA] requires everyone’s participation to make it happen,” Hernandez said.
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