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Representation at bail hearings should be just the start

August 18, 2018

When defendants appear at bond hearings in Bexar County, a prosecutor will make an argument for the state, and a judge will ask questions and set bail. But a defense attorney will almost never be there.

That’s about to change, and not a moment too soon. The lack of a defense attorney at these initial hearings as charges are filed and bail is set — known in Texas as magistration — is a gaping hole in the justice system.

No defense attorney means no one to argue for a lower bond or ensure a defendant doesn’t make an incriminating statement. Throughout our ongoing “Unequal Justice” series we have called on local officials to provide defense counsel at bond hearings.

Whether it is because of our calls or a result of officials’ own reasoning and sense of justice, the response to the crisis is welcome. Bexar County is very close to providing counsel to all defendants at bail hearings.

“I believe that ensuring all arrested individuals have adequate representation at their initial magistrate hearings will improve public safety, enhance our criminal justice system, and save our taxpayers in the long run,” Bexar County Judge Nelson Wolff wrote in a letter this month to state District Judge Ron Rangel. “I will support providing the Bexar County Public Defender’s Office with additional resources they need to provide this representation.”

Rangel is the administrative judge for the district courts, which handle felonies and have the power to approve this program.

In a separate letter to Rangel this month, Michael Young, chief of Bexar County’s Public Defender’s Office, said he is meeting with other county officials to estimate the appropriate budget for this task. He asked for support and input from the district judges.

In an interview, Rangel said he and his colleagues are on board.

“It’s not anything the district judges would be opposed to in any way,” he said. “We think about justice. What does justice mean? It would be a benefit for every defendant to have an attorney argue on their behalf.”

If Bexar County follows through with this step, it will pay dividends for defendants, particularly those accused of nonviolent offenses who have languished in jail. Public defenders already provide representation to some — but not nearly all — defendants with mental illness at these initial appearances. The program has been successful. Defendants are more likely to receive mental health treatment and meet bond conditions.

As important and welcomed as this step is, other reforms remain.

Public defenders must also be present at bail hearings conducted by the city of San Antonio. As we noted in a previous editorial, the city is not partnering with the county at its new Justice Intake and Assessment Center. But as long as the city is doing its own magistration and processing, a county public defender should be present for those hearings as well. Otherwise, two defendants charged with the same crimes and in similar circumstances — one in the county and one in the city — could have very different bail hearing outcomes.

The Public Defender’s Office should also represent defendants at the county’s 48-hour bond review hearings. As we noted in today’s editorial about bail reform (on the front page of this section), these bond hearings are good policy but are a bit messy.

Private attorneys are not always showing up. Scheduling has been inconsistent. Since a public defender will be at all initial hearings, it makes sense to have the same office at these 48-hour reviews. This would be for bond purposes only, so private attorneys wouldn’t lose clients.

Bexar County should create an office that fields complaints about private court-appointed attorneys.

Bail hearings should always be open to the public, at least via video monitor. Our request to view these hearings was rejected.

The Public Defender’s Office should be expanded. The office is limited to 14 attorneys and has a large focus on mental health cases.

The private court-appointed system is begging for reform. The pay is too low, there is little oversight, and the pay structure for misdemeanors incentivizes plea agreements, even where guilt may very much be in doubt. A better way can be found in Lubbock County, where officials use a managed-assigned counsel system. The system has more oversight, uses a different pay structure and takes the appointment process out of the hands of judges, who receive campaign contributions from attorneys.

Our point is this: Defense representation at initial appearances is a welcome and vital step. But it shouldn’t be the only step Bexar takes to reform and improve the criminal justice system.

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