Pleading the Sixth: More than 74% of all misdemeanor defendants in Potter County, Texas (Amarillo) face the possibility of jail time without the aid of a lawyer, due to sheriff’s deputies, county prosecutors, and trial court judges exerting direct, overt pressure on indigent defendants to forego exercising their constitutional right to counsel. A new 6AC report concludes that the State of Texas is ultimately responsible for remedying the systemic public defense deficiencies.
The State of Texas delegates to counties and trial court judges most of its constitutional obligation to ensure the provision of the Sixth Amendment right to counsel, while failing to ensure that each and every indigent defendant has an attorney with the time, training, and resources to provide effective representation at every critical stage of a criminal case. This is the principal finding of a Sixth Amendment Center (6AC) report, The Right to Counsel in Armstrong County and Potter County, Texas: Evaluation of Adult Trial Level Indigent Defense Representation, released on November 13, 2019.
Texas has 254 counties, and the criminal justice system in each of those counties operates differently from all others. Texas state law requires the judges who have jurisdiction over criminal cases in each county to adopt by local rule countywide procedures for providing counsel to indigent defendants at trial and appeal for crimes punishable by incarceration. Texas state law also requires the county in which a criminal prosecution is instituted to pay the cost of appointed counsel and all reasonable and necessary expenses of the defense at both trial and appeal.
The report extensively explains the State of Texas’ responsibilities to indigent defendants, the manner in which Texas has delegated those responsibilities to counties and trial court judges, the Texas Indigent Defense Commission’s limited role in oversight and partial funding of the right to counsel, and Texas’ inability to make informed policy decisions because of a dearth of relevant data. The report focuses on how the local assigned counsel systems in Potter and Armstrong counties select, appoint, and compensate lawyers and on how those systems actually and constructively deny the right to counsel to indigent defendants, in part as a result of flat fee compensation, excessive caseloads, and the absence of independent oversight allowing undue judicial and political interference. We trust that readers interested in learning more about the right to counsel in Texas, and particularly in Armstrong County and Potter County, will delve into the report.
The actual denial of the right to counsel is our nation’s greatest Sixth Amendment deficiency. Here, we explain the systemic pressures that cause over 74% of all people who face a misdemeanor charge in Potter County, Texas to plead guilty without ever talking to a criminal defense lawyer.
The systemic push to waive the right to counsel
“Magistration” is the proceeding in Texas at which a criminal defendant appears for the first time in court before a judicial officer and that triggers attachment of the right to counsel under Rothgery v. Gillespie County and earlier U.S. Supreme Court caselaw. Neither prosecutors nor defense attorneys are present at magistration proceedings in Potter County, where non-lawyer justices of the peace serve as the presiding judicial officer.
Nearly all defendants in Potter County are arrested, rather than cited, for an alleged offense, so they are in custody when magistration occurs in their cases. In-custody magistration is held daily in Potter County for both felony and misdemeanor defendants. Because defendants appear by videoconference from the jail, the first person who interacts with a defendant during the magistration process is not the justice of the peace. Instead, employees of the Potter County sheriff’s department meet with each defendant before turning on the videoconferencing equipment. This initial interaction between sheriff’s department personnel and in-custody defendants sets in motion a chain of events that impedes the free exercise of the right to counsel for many indigent defendants in misdemeanor cases in Potter County.
The sheriff’s deputy encourages in-custody misdemeanor defendants to represent themselves. For example, of one defendant accused of two class B misdemeanor charges, the deputy asked: “Do you want to apply for a court appointed attorney, hire one, or go ahead and represent yourself? You do not have to have an attorney for a class B misdemeanor. You can get yourself into plea court, hear what the prosecutor has to offer in plea court, and then get a lawyer later if you want.”
“Plea court,” as the sheriff’s deputy names it, is the arraignment on the charging instrument filed by the Potter County Attorney’s office, usually one or two weeks following the defendant’s arrest. Defense attorneys (both retained and appointed) can waive formal arraignment, so that neither the represented defendant nor their attorney appears in court at arraignment. As a result, the judges and prosecutors expect that the only defendants who appear at misdemeanor arraignment are those who are not represented by an attorney. There are no indigent defense attorneys present at misdemeanor arraignments in Potter County. Arraignments for out of custody defendants are referred to locally as “walk-in arraignments.” Arraignments for in-custody defendants are referred to locally as “video arraignments.”
Walk-in arraignments for out of custody defendants
As out of custody defendants arrive at the courtroom, an investigator from the county attorney’s office greets each defendant at the door and tells them to “check in” with a woman standing at the podium in the center of the courtroom. The woman is employed by the county attorney’s office, and she asks the defendant for their name, then hands them a “Waiver of Right to Counsel” form. At 9:00 a.m., the judge takes the bench for a few minutes to address the unrepresented defendants in the courtroom as a group, explaining that each of them can hire a private attorney, request an appointed attorney, or waive their right to counsel and speak to the prosecutor to see if their case can be resolved that day. Then the judge leaves the courtroom.
After the judge leaves, one of the county attorney’s investigators stands and announces to the unrepresented defendants: “If you don’t want to talk to the prosecutor, hold up your paper and I’ll come collect them. If you want to hear the prosecutor’s offer, I need you to sign the form.” The unrepresented defendants who opt to meet with the prosecutor sign the “Waiver of Right to Counsel” form and hand it to the county attorney’s investigator, who places it on a table in the center of the courtroom. The unrepresented defendants who opt against meeting with the prosecutor are told by the county attorney’s investigator to see a second investigator who assists them to apply for court appointed counsel if they wish, and then to see the county attorney’s office administrative assistants to receive notice of their next court date in two weeks.
Each of the five prosecuting attorneys in the courtroom, one-by-one, takes the next signed “Waiver of Right to Counsel” from the table, calls the defendant’s name, and takes the unrepresented defendant outside the courtroom to negotiate. When the prosecutor and the unrepresented defendant are done talking, they return to the courtroom, and the prosecutor tells the county attorney’s office administrative assistants whether the defendant accepts or rejects the plea offer. The unrepresented defendants who reject the plea offer are given notice of their next court date in two weeks by the county attorney’s office administrative assistants, and are assisted to apply for court appointed counsel if they wish by one of the county attorney’s investigators. The unrepresented defendants who accept the prosecutor’s plea offer sit in the courtroom and wait to enter their guilty plea before the judge to whom their case has been allotted.
Video arraignments for in-custody defendants
The Potter County sheriff’s personnel bring defendants into the videoconferencing room. Once all defendants are present, the deputy turns on the videoconferencing equipment. The judge addresses the unrepresented in-custody defendants as a group. He states that each defendant has the right to counsel and can apply for court appointed counsel, but “if you decide you do want to talk to the county attorney, you will need to sign a waiver of counsel form. If you decide to talk to the prosecutor, it’s an opportunity to hear more about the charges in your case, maybe resolve the case more quickly, and maybe even get out of jail today.” The judge leaves the room.
The prosecutor slides his chair over to the videoconferencing monitor. One-by-one, the prosecutor talks individually with each unrepresented defendant. For example:
- A man accused of Class B misdemeanor theft has been in jail for 11 days. The prosecutor offers a “three for one” plea to 60 days, requiring the defendant to serve nine more days in jail. “If you accept the offer, and serve nine more days, you will have theft on your record. Having heard all this, do you want to accept the offer or do you want to talk to a court appointed attorney?” The defendant accepts the plea offer.
- One defendant is charged with stealing beer from a convenience store. The prosecutor offers a plea to time served, warning that a guilty plea will constitute the man’s second misdemeanor theft conviction and that a third misdemeanor offense will be enhanced to a felony charge. The man denies having a prior theft conviction, but wants to accept the plea offer of time served so that he can get out of jail. The prosecutor asks if he “stipulates” to the prior theft conviction, and the defendant says “yes.”
- Another defendant has multiple misdemeanor charges, including methamphetamine offenses. The prosecutor offers the defendant a plea requiring six more days in jail and a $200 fine plus previously unpaid court costs. The extremely agitated defendant denies some of the charged offenses. The prosecutor suggests that he ask for an appointed attorney, but the defendant erupts and claims the lawyer appointed to represent him previously did “nothing for me!” The defendant takes the plea offer.
- A defendant has a separate currently pending felony case, in which he is represented by a court appointed lawyer. The defendant is unrepresented on the present misdemeanor case but wants to accept the plea offer, because his appointed lawyer in the felony case advised him to accept the plea offer made on the felony. The prosecutor explains that pleading guilty to the misdemeanor case today may adversely affect the plea offer in the felony case. Eventually, the prosecutor persuades the defendant to ask for court appointed counsel.
- A man accused of Class A misdemeanor evading arrest has been in jail for 13 days. The prosecutor offers a “three for one” plea to 60 days, requiring the defendant to serve seven more days in jail. The defendant accepts the plea offer. The prosecutor reviews information on his computer and says, “I see that you are also being held on a felony and that you have court appointed counsel on that charge. Are you sure you don’t want to talk to your court appointed attorney?” The defendant declines: “I’ll just go ahead and sit out the seven days.”
- Another man is accused of a probation violation in a Class A misdemeanor. The prosecutor reads the allegations aloud to the defendant and explains that the defendant can admit “true” to some, all, or none of the allegations. “I admit to all of these, but I would like to speak to an attorney,” the defendant says. The prosecutor interrupts, saying, “Well don’t admit anything to me, because I represent the state. So, anything you say to me can and will be used against you.” The defendant asks more questions, and the prosecutor answers them, until finally the defendant asks: “What gets me out of jail the quickest?”
After meeting with each unrepresented defendant, the prosecutor calls the judge back into the room. The unrepresented in-custody defendants who accept the prosecutor’s plea offer waive their right to plead before the allotted court and enter their guilty plea before whichever judge is conducting the arraignments that day.
A system of inertia
Perhaps no one truly favors Potter County’s “plea court” system, and it was not established by conscious decision-making. Offering unrepresented defendants the opportunity to negotiate directly with prosecutors is a long-standing practice in the county that evolved over many decades. For example, one Potter County official recalled the misdemeanor process from the early 1980s: “I can remember [the arresting officers] would just bring the defendants straight to the county attorney’s office” to negotiate plea deals.
The “plea court” practices in Potter County survive through inertia. The county attorney’s office estimates that 25% of out of custody unrepresented defendants elect to speak with a prosecutor at arraignment, whereas “closer to 90%” of in-custody unrepresented defendants meet with prosecutors at arraignments.
Some senior prosecutors in the county attorney’s office are concerned that having unrepresented defendants meet directly with prosecutors is “fraught with perils” and likely produces unjust outcomes. For example, prosecutors in the county attorney’s office have broad discretion in both initial charging decisions and plea offers. Many of the assistant prosecutors are just beginning their legal careers, and due to the high volume of cases there is little time for training and supervising them. As a result, different prosecuting attorneys apply different standards. Senior prosecutors are concerned that untrained and inexperienced prosecutors occasionally make plea offers to jail time that should have been for pretrial diversion or, worse, that unrepresented defendants agree to plead guilty in cases that should never have been filed in the first place.
Prosecutors are uncomfortable negotiating with unrepresented defendants. “If I had my choice, there would be a defense lawyer here,” said one prosecutor, pointing to the room full of unrepresented defendants during arraignments. Another prosecutor equated his role at misdemeanor arraignments to that of a public defender office attorney: “Normally, a public defender would do what I’m doing right now – going through the offer, helping [defendants] understand where they are in their case, and advising them on what they want to do.”
The Potter County Attorney “wears two hats” and, at least in part for that reason, does not eliminate the policy of prosecutors negotiating with unrepresented defendants. On the one hand, the county attorney represents the county as prosecutor. In that position, the county attorney has the ethical “responsibility to see that justice is done, and not simply to be an advocate.” On the other hand, the Potter County Attorney serves as the county’s attorney, which includes a “financial duty to hold down the costs of indigent defense.” Some fear that ensuring the right to counsel to every indigent defendant charged with a misdemeanor could “create some serious fiscal problems for the county.”
Denial of the right to counsel to misdemeanor defendants must end
The bottom line is that the practices have to change. Under Texas law, when any defendant appears without counsel in an adversary judicial proceeding, the court “may not direct or encourage the defendant to communicate with” the prosecutor, unless and until the court advises the defendant of the right to counsel and the defendant has the opportunity to request counsel and that request is either denied or the defendant waives the right to counsel.
Prosecutors who speak directly with defendants, on their own volition or at the suggestion of the judge, risk violating their ethical duties in addition to state law. As the report of the National Right to Counsel Committee, Justice Denied, notes: “Not only are such practices of doubtful ethical propriety, but they also undermine defendants’ right to counsel.” The National Right to Counsel Committee report notes further:
Beyond the court’s role in making certain that a defendant’s waiver of counsel is valid, prosecutors have a professional responsibility duty “not [to] give legal advice to an unrepresented person, other than the advice to secure counsel.” Similarly, the ABA has recommended that prosecutors should refrain from negotiating with an accused who is unrepresented without a prior valid waiver of counsel. Prosecutors also are reproached by the ABA to ensure that the accused has been advised of the right to counsel, afforded an opportunity to obtain counsel, and not to seek to secure waivers of important pretrial rights from an accused who is unrepresented.
Misdemeanors matter. For most people, our nation’s misdemeanor courts are the place of initial contact with our criminal justice systems. Much of a citizenry’s confidence in the courts as a whole – their faith in the state’s ability to dispense justice fairly and effectively – is framed through these initial encounters. Although a misdemeanor conviction carries less incarceration time than a felony, the collateral consequences can be just as severe. Going to jail for even a few days may result in a person losing professional licenses, being excluded from public housing and student loan eligibility, or even being deported. A misdemeanor conviction and jail term may contribute to the break-up of the family, the loss of a job, or other consequences that may increase the need for both government-sponsored social services and future court hearings (e.g., matters involving parental rights) at taxpayers’ expense.
As one Potter County official said, misdemeanor proceedings are by their nature “high-volume and high-pressure” and there is a general interest in “moving cases along.” That, however, is exactly what the U.S. Supreme Court says the right to counsel is intended to protect against: “[T]he volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.”
The State of Texas is responsible
Improvement of indigent defense services in Armstrong County and Potter County will be difficult, because so many of the problems with providing effective assistance of counsel are inherently tied to decisions made by the state. Even as the policymakers and criminal justice stakeholders in Armstrong and Potter counties try to effectively implement the Sixth Amendment right to counsel for indigent defendants, often they fall short because of a lack of oversight and funding from the state, over which they have no control.
The role that the State of Texas exercises in ensuring the Sixth Amendment right to counsel is extremely limited. The state legislature enacted the Texas Fair Defense Act in 2002, creating what is today the Texas Indigent Defense Commission (TIDC). The Texas legislature requires TIDC to “develop policies and standards for providing legal representation and other defense services to indigent defendants at trial, on appeal, and in postconviction proceedings.” The authorizing statute includes a list of 12 separate types of substantive standards that the TIDC is expressly authorized to promulgate, along with a catchall provision for “other policies and standards for providing indigent defense services as determined by the commission to be appropriate.” Despite this broad standard-making authority, the TIDC has adopted only three substantive standards, related to how a defendant obtains the forms to request, a minimum continuing legal education requirement for lawyers, and some requirements for contract defender programs. Instead, TIDC “has chosen to promulgate model policies, forms, and procedures rather than mandatory standards or rules.”
TIDC does not provide direct representation to indigent defendants, and it does not have the power to force counties or judges to comply with any law, rule, standard, or policy relating to the provision of indigent defense services. All TIDC can do is withhold the limited state funding that it disseminates to counties through grants, if counties do not comply with the conditions of those grants. Even if TIDC did have the authority to enforce the State of Texas’ Sixth and Fourteenth Amendment right to counsel obligations, TIDC has insufficient capacity to do so. TIDC operates with just 11 full-time equivalent employees who are responsible for ensuring that each and every person facing the potential loss of liberty has an effective lawyer at every critical stage of a criminal prosecution in each of Texas’ well over 900 trial courts spread across 254 counties.
The U.S. Supreme Court held in Gideon v. Wainwright, that providing and protecting the Sixth Amendment right to effective assistance of counsel for the indigent accused in state courts is a constitutional obligation of the states – not local governments – under the due process clause of the Fourteenth Amendment. When a state chooses to delegate its right to counsel responsibilities to its counties and judges, the state must still guarantee not only that those local governments and local officials are capable of providing effective representation but also that they are in fact doing so.