From KUT News:
In April, Juan Chavez, a 17-year-old junior in high school, was arrested for stealing a car.
He was detained, booked into Travis County Jail, and turned in his belongings in exchange for a black and gray striped jail uniform — all standard jail procedures.
But then things took an unexpected turn. Like 85% of people arrested in Travis County, Juan couldn’t afford a lawyer. So when he stood before a judge for the first time to hear the conditions of his release, he was alone.
Juan’s mother, Viridiana Hernandez, said he missed two weeks of school while serving time at the adult prison in Del Valle before he was sent home with an ankle monitor.
Criminal justice advocates say they believe if Juan had counsel at first appearance, his time behind bars would’ve played out much differently.
This first appearance, called magistration in legal speak, is a critical point in the process after someone’s arrest. It’s where a judge reviews a person’s case and decides whether a person will stay in jail leading up to a trial. It’s also when bail amounts are set.
National research has shown having a lawyer present can significantly change the outcome of this meeting. After a counsel at first appearance program was implemented in Huron County, Michigan, the court set bond at the levels recommended by legal counsel 30% of the time.
It can also be a pivotal moment in someone’s case. For instance, a lawyer might have argued for Juan’s release with the condition that he attend a juvenile diversion program. Research supports this approach — longer periods of incarceration increase the likelihood of reoffending. And in Juan’s case, that’s exactly what happened. Just months later, he was arrested again for stealing another car.
What happens when a person doesn’t have counsel at first appearance?
There are dozens of people entering Travis County Jail and going through the magistration process alone every day.
In the spring, the American Civil Liberties Union (ACLU) spent weeks watching hundreds of people go through this process before filing a lawsuit against the county for violating the Sixth and Fourteenth Amendments.
Nick Hudson, a policy and advocacy strategist at ACLU, said defendants who can’t afford a lawyer end up sacrificing one of two rights: the right to remain silent or the right to a prompt bail hearing.
If defendants can’t afford a lawyer, they’re told they can wait behind bars for about four days to be connected with one, according to the ACLU. But Hudson said they rarely make the choice to wait — just a few days in jail can unravel someone’s life.
“People lose income, employment, housing, sometimes even custody of their children. They may miss medical treatment,” he said. “It has negative public safety impacts, too. Unnecessary pre-trial detention has been shown to increase the risk of committing future crimes.”
Hudson said in about a third of the cases ACLU observed, defendants said things to the magistrate judge that could harm their case. In two-thirds of cases, judges set bail in a way that required people to pay for their release.
“Without an attorney there to make good arguments to the judge about your community connections … people aren’t able to present the mitigating circumstances that would enable a judge to feel comfortable releasing people pre-trial,” Hudson said. “And what happens is people just stay in jail.”
Non-English speakers face additional challenges during the magistration process.
Daneyri Machado-Rodriguez, whose first language is Spanish, was arrested in September after law enforcement found drugs in her car following a car accident.
Her mother, Clarissa Machado Rodriguez, told KUT News that her daughter did not understand why she had been arrested. Daneyri did not receive an interpreter or a lawyer at her first appearance.
Daneyri’s wife, Sophie Chavez, spoke to the commissioners court about her wife’s incarceration in late September.
“I feel like Travis County is so blindly … is sweeping it under the rug, and it’s not fair to them because they are also humans,” Chavez said at the meeting. “What’s happening to her is not only happening to her, it’s happening to many others.”
Travis County is one of the biggest counties in Texas that doesn’t have a counsel at first appearance program
But it’s not for lack of trying.
In spring 2022, the county received a $500,000 grant from Texas A&M University to launch a counsel at first appearance pilot program. But it only lasted nine days.
Travis County Sheriff Sally Hernandez said staffing shortages and space issues made the program unworkable. She said multiple employees resigned during the short span of the program, some of whom had worked at the jail for more than a decade.
“We have put so much pressure onto our staff that they can’t take it anymore,” she told the commissioners court in 2022. “That’s why I said … this is not sustainable. We want to be participants, we want to help, but we do not have the facility and we do not have the staffing.”
In the two years that followed, the commissioners court, the sheriff’s office and Adeola Ogunkeyede, Travis County’s chief public defender, pitched and rejected several proposals for how counsel at first appearance could work within the jail’s constraints.
They considered renovating the jail to create more room for lawyers to privately consult with defendants. When that was deemed unfeasible, they considered doing magistration virtually. That was shot down due to privacy and security concerns.
During that same time, activists like Peggy Morton with the Austin Sanctuary Network routinely showed up to commissioners court meetings and urged the dias to take action.
“We’ve been calling commissioners, we’ve had our own private zoom meetings with commissioners, trying to talk to them and wake them up to this travesty that’s happening in supposedly progressive Austin,” Morton said.
Robert Lilly, an organizer with Grassroots Leadership, showed up to Travis County Commissioners Court meetings even when counsel at first appearance wasn’t on the agenda.
Lilly was arrested in Texas in the early ’90s. He said having representation at magistration could have been a critical turning point in his life. But he didn’t have it, and without counsel plead guilty to the maximum sentence of 10 years in prison for this first offense. He was incarcerated three more times in his life.
“This is what the research shows, that inadequate representation or lack of representation at first appearance before a magistrate judge increases the likelihood of repeated contact with law enforcement,” he said. “In my life, that was the case.”
People can get legal representation if they’re arrested at the right time
In September, Travis County Commissioners responded to activists and the legal pressure from ACLU. They allocated $15.5 million to offer a counsel at first appearance program daily from 2-11 p.m.
Travis County’s Budget Director Travis Gatlin called the move the single biggest undertaking the county has ever done for criminal justice reform.
But running the program requires more than just money. The county still needs to hire lawyers, magistrate judges, security officers and interpreters. Currently, counsel at first appearance is only offered Fridays, Saturdays and Sundays.
Sheriff Hernandez said whether or not counsel at first appearance will be fully implemented a year from now is like “looking into a crystal ball.”
Activists like Morton and Lilly said they will continue to put pressure on the county until everyone entering Travis County Jail has representation at their first court appearance.
Lilly won’t be eligible to vote in an election until he’s off parole in 2049. So while he can’t use his voice in democratic elections until then, he said using it to fight for counsel at first appearance in Travis County is the most powerful he ever felt in his life.
“I’ve been incarcerated four times, and that’s not [counting] the times I’ve been in juvenile,” he said. “Who would ever see my life evolving in such a way that I’m now sitting before some of the most dignified people in our society that govern this society, and having influence over those decisions being made? To me, there’s no better way to describe redemption.”
