Farella v. District Judge A.J. AnglinFarella v. District Judge A.J. Anglin
TABLE OF CONTENTS
- I. BACKGROUND .................................................................................................................... 3
- A. Factual Background ........................................................................................................ 3
- 1. Plaintiffs’ Arrests, Incarceration, and Bail Hearings ................................................... 3
- 2. The Governing Arkansas Rules of Criminal Procedure ............................................... 6
- 3. Judge Anglin‘s Rule 8.1 Hearings ............................................................................... 9
- 3. The Public Defenders ................................................................................................. 10
- B. Procedural Background .................................................................................................. 11
- II. LEGAL STANDARD ........................................................................................................... 12
- III. DISCUSSION ....................................................................................................................... 13
- A. Plaintiffs’ Sixth Amendment Right to Counsel .............................................................. 13
- 1. Attachment ................................................................................................................. 14
- 2. Critical Stage .............................................................................................................. 16
- B. Injunctive Relief ............................................................................................................. 35
- 1. Irreparable Harm to Plaintiff ..................................................................................... 36
- 2. Balance of Harms ...................................................................................................... 37
- 3. Public Interest ............................................................................................................ 38
- IV. CONCLUSION .................................................................................................................... 38
The questions presented in this case are whether indigent criminal defendants have a constitutional right to attorney representation during the judicial officer‘s determination of bail, and if so, whether Defendants violated that right by failing to timely appoint counsel before Plaintiffs’ bail was set. The Defendants are Executive Director of the Arkansas Public Defender Commission Gregg Parrish and Chief Benton County Public Defender Jay Saxton (together, the “Public Defenders“) and Benton County District Judge A.J. Anglin, all of whom are sued in their official capacities. The matter arises from a bail hearing procedure in Judge Anglin‘s court that Plaintiffs allege is constitutionally defective. The Plaintiffs are Abigail Farella and Logan W. Murphy, who represent a certified class of (1) pretrial detainees, (2) who have or will appear before District Judge A.J. Anglin, (3) for a bail or pretrial release hearing under
Presently before the Court are Cross-motions for Summary Judgment from Plaintiffs (Doc. 96)1 and Judge Anglin (Doc. 99).2 Plaintiffs ask the Court to find as a matter of law that indigent persons have a right to have appointed counsel present at bail hearings under the Sixth and Fourteenth Amendments, and that Judge Anglin‘s bail hearing procedure violates that right. They seek a declaratory judgment to that effect and a permanent injunction requiring that indigent persons must have appointed counsel present at bail hearings in Judge Anglin‘s court. Judge Anglin‘s Motion asks the Court to find the opposite—that Plaintiffs do not have a right to counsel at bail hearings under the Sixth Amendment and that Judge Anglin did not violate Plaintiffs’ Sixth or Fourteenth Amendment rights—
I. BACKGROUND
A. Factual Background4
1. Plaintiffs’ Arrests, Incarceration, and Bail Hearings
On May 20, 2022, Bentonville Police Department (“BPD“) officers arrested Abigail Farella for felony possession of a controlled substance, misdemeanor possession of drug paraphernalia, and misdemeanor shoplifting. She was transported to the Benton County Jail and—after waiting for more than ten hours—booked. That was Friday. On the following Sunday, May 22, Ms. Farella appeared before Judge Anglin. The hearing was held in a small courtroom in the jail. It contained an elevated judge‘s seat and approximately twelve chairs. Ms. Farella was one of several defendants to appear that day. She was not represented by an attorney.
Before the hearing, Judge Anglin was presented with a sworn Affidavit of Probable Cause from the BPD, signed by Corporal Kevin Albert. The Affidavit stated the charge against Ms. Farella, listed her criminal history, and attached an Arrest Narrative—an approximately two-page statement of factual allegations about Ms. Farella‘s offense conduct and arrest, written by the arresting officer. See Doc. 98-2, pp. 56–58. Ms. Farella testified that she did not agree with various factual statements in the Affidavit and Arrest Narrative. See, e.g., Doc. 98-4, p. 23. Corporal Albert‘s Affidavit concluded with the following sentence: “Based upon the nature of the crime, the likelihood of conviction, the possible severity of penalty that could be imposed, the State joins me in requesting that a bond of $2,500, be set on the defendant, Abigail Ella Farella.” (Doc. 98-2, p. 54 (emphasis added)).
After reviewing these materials, Judge Anglin conducted Ms. Farella‘s hearing. He read her charges and, after considering her criminal history and lack of ties to the state of Arkansas (Ms. Farella was a Missouri resident), set her bond at $10,000.00 cash or corporate surety. Then Judge Anglin scheduled her arraignment, Ms. Farella‘s next court date, for June 27, 2022. After bail was set and the arraignment scheduled, Judge Anglin found her indigent and appointed a public defender to represent her in subsequent proceedings. Then he concluded the hearing.
Ms. Farella remained incarcerated in the Benton County Jail for more than five
Bentonville Police arrested Logan Murphy for felony fleeing and misdemeanor reckless driving on June 20, 2022. He was taken to the Benton County Jail, booked, and held overnight. The next morning, June 21, Mr. Murphy appeared for his hearing before Judge Anglin. He and the other defendants lined up against the back wall of the courtroom and waited for their names to be called.
When it was Mr. Murphy‘s turn, Judge Anglin read him his rights, asked if he understood them, and asked if he had an attorney. He did not, and he did not request one. Looking back, Mr. Murphy testified that if he had an attorney present, they might have been “able to talk the judge down a little bit” because “it was my first offense” and “I had no criminal background or anything.” (Doc. 98-3, p. 30).
As in Ms. Farella‘s case, prior to Mr. Murphy‘s hearing, Judge Anglin had been provided with a sworn Affidavit of Probable Cause by the BPD. It included the charges against him, a recitation of his criminal history, and an arrest report. See id. at pp. 44–45. Also like in Ms. Farella‘s case, the Affidavit concluded as follows: “Based on the nature of the crime, the likelihood of conviction, the possible severity of penalty that could be imposed, the State joins me in requesting that a bond of $25,000 be set on the defendant, Logan Wade Murphy.” (Doc. 98-2, p. 45 (emphasis added)).
After their initial colloquy, Judge Anglin set Mr. Murphy‘s bail at $40,000 cash or corporate surety. Mr. Murphy testified that he had “not even seen $10,000 in my life,” much less $40,000. But Mr. Murphy did not ask Judge Anglin why he set the bail at $40,000; he feared that Judge Anglin would raise it further. Judge Anglin then set Mr. Murphy‘s arraignment for July 25, 2022, found him indigent, and appointed a public defender to represent him at future proceedings. It appears that he remained in jail until July 22, 2022, when he posted bail. (Doc. 78, p. 5 n.3 (taking judicial notice of Mr. Murphy‘s state court docket)). Mr. Murphy pleaded guilty to felony fleeing on June 12, 2023. (Doc. 98-2, p. 49). He was sentenced to 60 months of probation. Id.
2. The Governing Arkansas Rules of Criminal Procedure
The hearings at issue are governed by
(a) Upon the first appearance of the defendant the judicial officer shall inform him of the charge. The judicial officer shall also inform the defendant that:
(i) he is not required to say anything, and that anything he says can be used against him;
(ii) he has a right to counsel; and
(iii) he has a right to communicate with his counsel, his family, or his friends, and that reasonable means will be provided for him to do so.
(b) No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel.
(c) The judicial officer, if unable to dispose of the case at the first appearance, shall proceed to decide the question of the pretrial release of the defendant. In so doing, the judicial officer shall first determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant.
As described in
Under
In setting the amount of bail the judicial officer should take into account all facts relevant to the risk of willful nonappearance including:
(i) the length and character of the defendant‘s residence in the community;
(ii) his employment status, history and financial condition;
(iii) his family ties and relationship;
(iv) his reputation, character and mental condition;
(v) his past history of response to legal process;
(vi) his prior criminal record;
(vii) the identity of responsible members of the community who vouch for the defendant‘s reliability;
(viii) the nature of the current charge, the apparent probability of conviction and the likely sentence, in so far as these factors are relevant to the risk of nonappearance; and (ix) any other factors indicating the defendant‘s roots in the community.
Like all Arkansas district judges, Judge Anglin‘s jurisdiction to conduct
3. Judge Anglin‘s Rule 8.1 Hearings
Judge Anglin is one of four district court judges in Benton County, all of whom conduct Rule 8.1 Hearings in both felony and misdemeanor cases. Each judge takes 25% of the hearings, which are divided such that each judge conducts them for thirteen weeks per year, in an on-one-week, off-three-weeks rotation. In an average week, Judge Anglin estimates that a district judge hears around 120 cases: approximately 40 misdemeanors, 75 felonies, and 5 extraditions. Judges in Benton County do not require the presence of public defenders at Rule 8.1 Hearings, and no representatives from the prosecutor‘s or public defender‘s offices are physically or virtually present at the hearings conducted at the Benton County Jail. In fact, Judge Anglin testified in his deposition that he could recall only one occasion in which a public defender appeared at a Rule 8.1 Hearing. See id. at pp. 21-22.
Judge Anglin conducts his Rule 8.1 Hearings at 6:00 a.m. every day during his allocated weeks. The jail provides him a list of names before the hearings, and he arrives at 5:00 a.m. to read the BPD‘s probable-cause affidavits before any inmates are brought in to appear. He testified that he reads every affidavit closely. At the hearing, Judge Anglin advises defendants of their Miranda rights, and informs them of the nature, number, and classification of the charge(s) against them, pursuant to
The primary purposes of setting bail for a criminal defendant are: (1) to permit the defendant to avoid incarceration while their case proceeds and (2) to ensure that they will appear for future court dates while they are out. Judge Anglin testified in his deposition as to the purpose of bonds this way: “[I]f 100 percent of the people showed up in court, then bonds would probably go down“; “that would change the Court‘s perspective.” (Doc. 98-1, p. 22). However, he testified that approximately 35% of offenders do not appear in district court even though they have been ordered to do so.
After making his bail determination, Judge Anglin asks the defendant if they would like to be appointed a public defender. If they respond in the affirmative, he reviews an indigency form with the defendant to determine whether a public defender should be appointed to their case and makes an indigency ruling. Judge Anglin testified in his deposition that it is
4. The Public Defenders
The Public Defenders argue that the injunction Plaintiffs request would impose significant strain on their capacity to provide public defense services. The Arkansas Public Defender Commission (“APDC“) is afforded 186 full-time positions by the Arkansas legislature, which it allocates to 117 full-time and 112 part-time attorney positions. Benton County currently holds 15 full-time public defender positions: 6.5 state-funded public defenders and 8.5 attorney positions funded by Benton County. See
In Washington County, by contrast, both prosecutors and public defenders are present for Rule 8.1 hearings. A court reporter is also present to make a record. The hearings are held every Monday, Wednesday, and Friday at 8:00 a.m. at the Washington County Jail. Washington County has authorized their district judges to conduct arraignments in felony cases, which are held during the same times.
B. Procedural Background
Ms. Farella and Mr. Murphy filed their Complaint (Doc. 2) in this matter on June 24, 2022, on behalf of themselves and other similarly situated individuals. They brought denial of right-to-counsel claims under the Sixth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at ¶¶ 21–26. They pleaded the case as a class action. Id. at ¶¶ 16–20. Plaintiffs filed an Amended Complaint on November 15, 2022 (Doc. 34). Judge Anglin and the Public Defenders each filed Motions to Dismiss (Docs. 47 & 61) on December 13, 2022, and February 10, 2023, invoking the doctrines of sovereign immunity and abstention and also alleging that the Amended Complaint failed to state a claim and omitted indispensable parties. On August 5, 2023, the Court denied Defendants’ Motions to Dismiss (Doc. 78), and on August 21, Judge Anglin and the Public Defenders filed Answers to the Amended Complaint (Docs. 79 & 80). Plaintiffs filed a Motion to Certify Class (Doc. 87) on November 20, 2023, which the Court granted (Doc. 103) on May 7, 2024. Plaintiffs appear at summary judgment representing the certified class.
II. LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Once the moving party has met its burden, the nonmoving party must “come forward with ‘specific facts showing that
Where, as here, the parties have filed cross-motions for summary judgment, this same standard applies. But each motion must be reviewed in its own right, with each side “entitled to the benefit of all inferences favorable to them which might reasonably be drawn from the record.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998).
III. DISCUSSION
A. Plaintiffs’ Sixth Amendment Right to Counsel
The threshold question presented is whether Plaintiffs have a Sixth Amendment right to counsel at Judge Anglin‘s bail determination. The Court finds in the affirmative. The undisputed facts show that Plaintiffs’ Sixth Amendment right attaches at their Rule 8.1 Hearings, that Judge Anglin‘s bail determination is a critical stage of their criminal proceedings, and that Plaintiffs’ Sixth Amendment right was therefore violated when no counsel was appointed before their bail was determined.
The Sixth Amendment, applicable to the States by the terms of the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”
The Sixth Amendment inquiry is thus a two-part test. First, the Court must determine whether Plaintiffs’ right to counsel attached during their Rule 8.1 Hearings. And second, the Court must determine whether the Judge Anglin‘s bail determination
1. Attachment
“In a line of constitutional cases . . . stemming back to the Court‘s landmark opinion in Powell v. Alabama, 287 U.S. 45 (1932),” the Supreme Court has “firmly established that a person‘s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him, . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 688–89 (1972) (collecting cases). In Kirby and its progeny, the Supreme Court explained that “our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings ‘is far from a mere formalism,‘” Gouveia, 467 U.S. at 189 (quoting Kirby, 406 U.S. at 689),
[f]or it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.
Kirby, 406 U.S. at 689–90 (citations omitted). Consistent with this reasoning—and of particular importance here—the Supreme Court clarified in Rothgery, that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” 554 U.S. at 194 (emphasis added) (citing Brewer v. Williams, 430 U.S. 387, 398–99 (1977) and Michigan v. Jackson, 475 U.S. 625, 629, n.3 (1986)).
Rothgery is directly on point. There, the Supreme Court considered whether the Sixth Amendment right to counsel attached in an “article 15.17 hearing“—the first appearance before a magistrate judge that is administered under Texas law. At Rothgery‘s article 15.17 hearing, “[t]he arresting officer submitted a sworn ‘Affidavit Of Probable Cause’ that described the facts supporting the arrest . . . .” Id. “After reviewing the affidavit, the magistrate ‘determined that probable cause existed for the arrest, informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond.” Id.
Judge Anglin‘s Rule 8.1 hearing follows the same procedure. Like the initial appearance at issue in Rothgery, Judge Anglin‘s Rule 8.1 hearing “combines the Fourth Amendment‘s required probable-cause determination with the setting of bail, and is the point at which the arrestee is formally apprised of the accusation against him.” Id. at 195 (citations and footnote omitted). And like in Rothgery, each defendant‘s “arresting officer submit[s] a sworn Affidavit Of Probable Cause that describe[s] the facts supporting the arrest” and the charges against them. Id. “After reviewing the affidavit,” Judge Anglin, like an article 15.17 magistrate judge, “determine[s] [whether] probable cause existed for the arrest,” “inform[s] [the defendants] of the accusation[s]” against them, “set[s] [their] bail,” “and commit[s] them to jail,” pending bond. Id. at 196 (internal quotation marks, alterations, and citations
2. Critical Stage
To recap, Judge Anglin‘s Rule 8.1 Hearings include three stages as to each defendant. First, after reviewing the BPD‘s Probable Cause Affidavit before the hearing, Judge Anglin reads the defendant‘s charges and makes a determination as to probable cause. Second, after considering the joint bond recommendation from the State and the BPD, Judge Anglin makes his bail determination. Judge Anglin then schedules the defendant‘s arraignment. Third, after bail is set and the arraignment scheduled, Judge Anglin asks the defendant if they would like the State to appoint an attorney to represent them and, if so, makes a finding as to whether the defendant is indigent. If warranted, he appoints a public defender to represent the defendant in subsequent proceedings and concludes the hearing. Applying Rothgery, the Court finds that the Sixth Amendment right to counsel attaches at Judge Anglin‘s Rule 8.1 Hearings. The narrow issue is whether the second stage of those hearings—the bail determination—is a “critical stage” of Plaintiffs’ criminal proceedings.
“Once attachment occurs, the accused . . . is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings . . . .” Rothgery, 554 U.S. at 212; see also United States v. Lewis, 483 F.3d 871, 873 (8th Cir. 2007) (“The right to counsel under the Sixth Amendment applies only to ‘critical stages’ of the proceedings against the defendant.” (citing Wade, 388 U.S. at 224–25)). The critical stage determination asks whether denying counsel at a given stage is likely to compromise the defendant‘s trial rights. Id. at 226 (footnotes omitted) (“[I]n addition to counsel‘s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel‘s absence might derogate from the accused‘s right to a fair trial.“); United States v. Ash, 413 U.S. 300, 322 (1973) (Stewart, J., Concurring) (citations omitted) (“Pretrial proceedings are ‘critical,’ then, if the presence of counsel is essential ‘to protect the fairness of the trial itself.“).
The Supreme Court and Eighth Circuit have held that arraignments, postindictment interrogations, postindictment lineups, competency hearings, plea bargain negotiations, and the entry of a guilty plea are all critical stages of a criminal proceeding. Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (arraignment); Massiah v. United States, 377 U.S. 201, 206–07 (1964) (postindictment interrogation); Wade, 388 U.S. at 236–37 (postindictment lineup); Raymond v. Weber, 552 F.3d 680, 684 (8th Cir. 2009) (competency hearing); Frye, 566 U.S. at 143–44 (plea bargain negotiation); Argersinger v. Hamlin, 407 U.S. 25, 34–35 (1972) (guilty plea). By contrast, the collection and scientific analysis of evidence including clothing, handwriting exemplars, fingerprints, blood and hair samples, and DNA “are not critical stages since there is minimal risk that [defense] counsel‘s absence at such stages might derogate from [the defendant‘s] right to a fair trial.” Wade, 388 U.S. at 227–28; see also id. (clothing, fingerprints, blood and hair samples); Gilbert v. California, 388 U.S. 263, 267 (1967) (handwriting exemplars); Lewis, 483 F.3d at 874 (DNA).
The Supreme Court has narrowed but not directly reached the question of whether the judicial officer‘s determination of bail at “the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty” is a critical stage. Rothgery, 554 U.S. at 194 (citations omitted). The closest cases on point are Gerstein v. Pugh, 420 U.S. 103 (1975), and Coleman v. Alabama, 399 U.S. 1 (1970). In Gerstein, the Supreme Court held that “the probable cause determination is not a ‘critical stage’ in the prosecution that would require appointed counsel.” 420 U.S. at 122. So, whereas under Rothgery, attachment occurs “at the first appearance,” 554 U.S. at 194 (emphasis added), under Gerstein, the Sixth Amendment does not demand the appointment of counsel at the first stage of Judge Anglin‘s Rule 8.1 hearing when he makes a finding as to probable cause. Gerstein thus sharpened the focus on the narrow issue here—whether the judicial officer‘s bail determination is, itself, a critical stage—but did not address it directly.
In Coleman, the Supreme Court considered whether a preliminary hearing prior to an indictment was a “critical stage” of an Alabama prosecution. 399 U.S. at 3. Under Alabama law, “the sole purposes” of the preliminary hearing were “to determine whether there [was] sufficient evidence against the accused to warrant presenting his case to the grand jury and, if so, to fix bail if the offense [was] bailable.” Id. at 8. Applying Wade, the Supreme Court held that “the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution,” id. at 9, for the following reasons:
First, the lawyer‘s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State‘s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer
can fashion a vital impeachment tool for use in cross-examination of the State‘s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
Id. (emphasis added). Accordingly, the Supreme Court held that “[t]he inability of the indigent accused on his own to realize these advantages of a lawyer‘s assistance compels the conclusion that the Alabama preliminary hearing is a ‘critical stage’ of the State‘s criminal process at which the accused is ‘as much entitled to such aid (of counsel) as at the trial itself.” Id. (quoting Powell, 287 U.S. at 57).
The Coleman case offers unambiguous guidance from the Supreme Court that a preliminary hearing in which “counsel can . . . be influential . . . in making effective arguments for the accused on such matters as . . . bail” may constitute a critical stage, and the Court takes that guidance seriously. Id. However, the instant case presents at least one distinguishing fact: Judge Anglin‘s Rule 8.1 hearings do not include
Looking beyond Supreme Court jurisprudence, the Court‘s review of the relevant case law reveals an emerging circuit split on the narrow issue presented. The Second and Third Circuits have held that a bail hearing is a critical stage. See Higazy v. Templeton, 505 F.3d 161, 172 (2d Cir. 2007) (“a bail hearing is a ‘critical stage of the State‘s criminal process‘” (quoting Coleman, 399 U.S. at 9–10)); Ditch v. Grace, 479 F.3d 249, 252–53 (3rd Cir. 2007) (a preliminary hearing, which includes a determination as to whether a defendant will be discharged or bound over to the court, is a “critical stage“). Several district and state courts have held similarly. See, e.g., Torres v. Collins, 2023 WL 6166523, at *12 (E.D. Tenn. Sept. 21, 2023) (“[A] bail hearing is a ‘critical stage’ of the criminal prosecution against an arrestee, requiring the presence of counsel.“); Remick v. Utah, 2018 WL 1472484, at*10 (D. Utah Mar. 23, 2018) (“[The Defendant] had no counsel at his arraignment and bail hearing. These are critical stages in a criminal proceeding . . .” (footnotes omitted)); Caliste v. Cantrell, 329 F. Supp. 3d 296, 314 (E.D. La. Aug. 6, 2018), aff‘d, 937 F.3d 525 (5th Cir. 2019) (holding that, in Louisiana, an initial bail hearing is a “critical stage” of the proceedings because “[t]here is no question that the issue of pretrial detention is an issue of significant consequence for the accused“); Hurrell-Harring v. New York, 930 N.E.2d 217, 223 (N.Y. 2010) (“There is no question that a bail hearing is a critical stage of the State‘s criminal process.” (internal quotation marks and citation omitted)); Gonzalez v. Comm‘r of Corr., 68 A.3d 624, 631–37 (Conn. 2013) (“[T]he [defendant] had a [S]ixth [A]mendment right to effective assistance of counsel at the arraignment stage in which proceedings pertaining to the setting of bond and credit for presentence confinement occurred . . . .“); State v. Farm, 571 A.2d 1023, 1030 (N.J. Super. Ct. 1990) (“The setting of bail certainly is a ‘critical stage’ in the criminal proceedings.“); Walsh v. Commonwealth, 151 N.E.3d 840, 860 (Mass. 2020) (“The defendant has the right to be represented by counsel at a bail hearing . . . .“); Valdex-Jiminez v. Eight Jud. Dist. Ct., 460 P.3d 976, 987 (Nev. 2020) (holding that the defendant was entitled to counsel when the state requests bail).
On the other side of the ledger, the Fifth and Ninth Circuits, as well as several district and state courts, have held that a bail hearing is not a critical stage. See United
States v. Portillo, 969 F.3d 144, 161 (5th Cir. 2020) (holding that an initial appearance that included a Texas state judicial officer‘s bail determination “b[ore] none of the markings of a critical stage“); Farrow v. Lipetzky, 637 F. App‘x 986, 988 (9th Cir. 2016) (holding that “the preliminary bail determination made at the initial appearance [did not] render that hearing a critical stage“); see also, e.g., United States v. Bour, 2020 WL 7353775, at *12 (N.D. Ind. Dec. 15, 2020) (holding that the defendant‘s initial appearance, during which he was informed of the charges against him, advised of his right to counsel, and had bail and conditions of release set, was not a critical stage); Ransdell v. Lumpkin, 2021 WL 4392084, at *4 (W.D. Tex. Sept. 23, 2021) (“[W]hile an Article 15.17 hearing ‘plainly signals attachment,’ it is not a ‘critical stage’ of the state criminal proceeding at which an attorney‘s presence is mandatory.” (quoting Rothgery, 554 U.S. at 213)); Roeder v. State, 444 P.3d 379 (Kan. Ct. App. 2019) (“Roeder‘s first appearance and initial bail hearing was not a critical stage of his criminal proceeding.“).
The Eighth Circuit provided some guidance on the issue in Smith v. Lockhart, 923 F.2d 1314 (8th Cir. 1991). In Smith, the court held that an
The Supreme Court has set forth at least two conceptions of a critical stage in which counsel is necessary to protect a defendant‘s trial rights. The first is a “trial-like confrontation[ ],” e.g., a competency hearing or a hearing in which witnesses are examined, “at which counsel would help the accused in coping with legal problems or meeting his adversary.” Rothgery, 554 U.S. at 212 n.16 (cleaned up) (emphasis added). “The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused‘s interests will be protected consistently with our adversary theory of criminal prosecution.” Wade, 388 U.S. at 227. In United States v. Ash, 413 U.S. 300, 313 (1973), the Supreme Court explained that “the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary.” For clarity, the Court will refer to this first conception as a “trial-like” stage.
The Supreme Court‘s second critical-stage conception is of a stage that is, itself, so consequential that it “might well settle the accused‘s fate and reduce the trial . . . to a mere formality.” Gouveia, 467 U.S. at 189 (citing Wade, 388 U.S. at 224) (emphasis added). The Court will refer to this second conception as an “outcome-influencing” stage. The most obvious outcome-influencing stage in a pretrial criminal proceeding is a plea negotiation, in which the defendant is presented with the opportunity to “settle the[ir] [] fate” by pleading guilty. Id.; see also Missouri v. Frye, 566 U.S. 134, 144 (2012) (“[C]riminal defendants require effective counsel during plea negotiations. ‘Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.‘” (quoting Massiah, 377 U.S. at 204 and Spano v. New York, 360 U.S. 315, 326 (1959) (Douglas, J., concurring))). The Court looks to both conceptions to determine whether Judge Anglin‘s
(i) Is the Bail Determination a Trial-Like Stage?
Turning first to the Supreme Court‘s trial-like stage framework, the Court first notes that Judge Anglin testified in his deposition that he places meaningful limits on his
But the undisputed facts also show that Judge Anglin‘s bail determination include at least two trial-like features. The first is that he considers the prosecutor‘s bail recommendation in his bail determination, pursuant to
The second trial-like feature is Judge Anglin‘s consideration of the
In setting the amount of bail the judicial officer should take into account all facts relevant to the risk of willful nonappearance including:
(i) the length and character of the defendant‘s residence in the community;
(ii) his employment status, history and financial condition;
(iii) his family ties and relationship;
(iv) his reputation, character and mental condition;
(v) his past history of response to legal process;
(vi) his prior criminal record;
(vii) the identity of responsible members of the community who vouch for the defendant‘s reliability;
(viii) the nature of the current charge, the apparent probability of conviction and the likely sentence, in so far as
(ix) any other factors indicating the defendant‘s roots in the community.
Several of these factors are indicia that the judicial officer‘s bail determination is a trial-like stage because, although witnesses are not called, the opportunity to argue for the accused under the
First, the Court observes that
[p]erhaps one of the most effective ways an attorney can help is with someone who is mentally ill. As anyone who practices in the criminal justice system[ ] knows, many defendants suffer from mental illness or a developmental disability. . . . If a defendant is mentally ill or developmentally delayed, he may not be mentally competent to even understand the judge‘s questions. He may be suffering from a psychotic break or be unable to understand . . . . An attorney would be invaluable in these instances by explaining to the judge that the defendant has mental incapabilities[ ] or explain[ing] that his family has already found a facility for the defendant to receive treatment. He may be able to immediately request a psychological examination as the Court in Coleman noted.
(Doc. 97, pp. 9-10). The Court agrees. Mentally ill defendants undoubtably “require[ ] aid in coping with legal problems or assistance in meeting [their] adversary” through argument at the bail determination. Ash, 413 U.S. at 313. Yet Judge Anglin testified that he is reticent to ask unrepresented defendants about mental health conditions at all because “as [ ] judge[s], we have to be cautious that we‘re not embarrassing people and not making people reveal if they have a mental disorder. . . . I am cautionary that there is a degree of privacy that people are entitled to.” (Doc. 98-1, p. 54:14-24). The Court empathizes with and shares Judge Anglin‘s concern. But it only underscores that an attorney‘s advocacy is critical at this stage. Representation ensures that mentally ill defendants are not left to “stand alone against the State,” Wade, 388 U.S. at 226, leaving Judge Anglin unaware of their condition as he determines their bail under the
Similarly, although
Judge Anglin also noted several other factors in his deposition testimony that would be impacted by an attorney‘s advocacy, including: identifying family members present at the hearing and those who would help ensure that the defendant appears for future court dates,
Consistent with Judge Anglin‘s testimony, both Ms. Farella and Mr. Murphy testified that they, in effect, “required aid in coping with legal problems or assistance in meeting [their] adversary.” Ash, 413 U.S. at 313. At her deposition, Ms. Farella testified that had she been represented by an attorney during her bail hearing, “I probably would have been able to understand the situation a lot better, probably would have been able to get out [of jail] faster, and probably wouldn‘t have lost my job, my house, and my car” as a result of her pretrial incarceration. (Doc. 98-4, p. 22). Mr. Murphy testified that he didn‘t ask Judge Anglin why he set the bail at $40,000 because he “didn‘t want to argue” or “make the bail go up more.” (Doc. 98-3, p. 31).
These facts comport with empirical research on the effects of appearing unrepresented at a bail hearing. As one of the scholars cited in Plaintiffs’ brief put it, “[s]ubstantial evidence demonstrates that pretrial counsel improves outcomes for defendants, including improved likelihood of pretrial release and lower bail amounts imposed, and more favorable plea negotiations.” Shima Baradaran Baughman, Taming Dangerousness, 112 Geo. L.J. 215, 245 (2023) (citing Douglas L. Colbert, “With a Little Help from My Friends:” Counsel at Bail and Enhanced Pretrial Justice Becomes the New Reality, 55 Wake Forest L. Rev. 795, 803 (2020) (“With representation, data shows that an incarcerated defendant charged with a nonviolent crime stands five times as likely to be released on recognizance or affordable bail than an unrepresented defendant.“)). Another scholar, discussing another study run by Professor Colbert, noted that:
according to a study in Baltimore, defendants with counsel are more than twice as likely to be released on their own recognizance. And, when represented defendants are granted bail, it is on average around six hundred dollars less than what is set for unrepresented defendants. Appointing counsel at bail hearings, then, [ ] substantially reduce[s] the amount of time a substantial number of indigent defendants spend in jail awaiting their trials. And that [ ] cut[s] down on the number of plea deals those defendants have to take just to get out of jail—regardless of their guilt or innocence.
Charlie Gerstein, Note, Plea Bargaining and the Right to Counsel at Bail Hearings, 111 Mich. L.R. 1513, 1516 (2013) (citing Douglas L. Colbert et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right to Counsel at Bail, 23 Cardozo L. Rev. 1719, 1720, 1753-54 (2002) (describing the results of a randomized experiment on the effects of counsel at bail determinations in Baltimore) [hereinafter the Baltimore Study]).
The Court reiterates that, at first blush, there are important distinctions between Judge Anglin‘s
(ii) Is the Bail Determination an Outcome-Influencing Stage?
The Court next considers whether Judge Anglin‘s bail determination is an outcome-influencing stage, in which “counsel‘s absence . . . might derogate from [Plaintiffs‘] right to a fair trial.” Wade, 388 U.S. at 226. Here, the Court begins with the research cited in Plaintiffs’ Brief. To start, the empirical work by Professor Colbert suggests an important relationship between representation at bail hearings and pleading guilty prior to trial. In 2002, Professor Colbert published the results of a randomized experiment conducted in Baltimore, in which several thousand low-income criminal defendants were assigned an attorney to represent them at bail hearings over the course of eighteen months. The study was remarkable for two reasons. First, it was one of the first social science experiments to “present[ ] convincing empirical data that the benefits of representation are measurable.” Baltimore Study at 1720 (emphasis added). Measurability is no small thing. Since an outcome-influencing stage is one in which counsel‘s absence might derogate from Plaintiffs’ right to a fair trial, the best way to determine whether a stage is outcome-influencing is to measure the effect of the presence of counsel at that stage on subsequent outcomes that serve as reliable proxies for trial fairness. In an ideal study, the presence of counsel would be the independent variable that researchers would isolate to observe its effect on the dependent variable—in this instance an outcome that would serve as a strong proxy for trial fairness. The Baltimore Study solved a piece of this methodological puzzle by measuring the effect of counsel at bail hearings on pretrial outcomes.
The results of that measurement are the second reason the Baltimore Study was remarkable. It found that “more than two-and-one-half times as many represented defendants were released on recognizance from pretrial custody as were unrepresented
Recall that the archetype outcome-influencing stage identified by the Supreme Court‘s Sixth Amendment jurisprudence is a plea negotiation, Missouri v. Frye, 566 U.S. 134, 144 (2012), because, more than any other pretrial stage of a criminal proceeding, plea bargaining “might well settle the accused‘s fate and reduce the trial . . . to a mere formality.” Gouveia, 467 U.S. at 189 (citing Wade, 388 U.S. at 224). Applying this guidance from the Supreme Court, several scholars cited in Plaintiffs’ Brief sought to show a theoretical connection between representation at bail hearings and the outcome of plea negotiations as a better proxy measure for trial fairness—including by theorizing that unrepresented defendants are more likely to plead guilty, regardless of whether they are guilty. See, e.g., Gerstein, supra, at 1514.
That theory is a powerful indicator that bail hearings are indeed an outcome-influencing stage with respect to trial fairness. But the Court is well aware of the evidentiary expanse between theory and proof, and it cannot bridge the gap between the Baltimore Study and the Supreme Court‘s outcome-influencing measure of criticality on theory alone.
Fortunately, in 2017—nine years after Rothgery—another group of researchers published the results of a second empirical study that closes the gap. Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 714 (2017) [hereinafter the Harris County Study]. They described the gap this way:
There is ample documentation that those detained pretrial are convicted more frequently, receive longer sentences, and commit more future crimes than those who are not (on average). But this is precisely what one would expect if the system detained those who pose the greatest flight or public safety risk. One key question for pretrial law and policy is whether detention actually causes the adverse outcomes with which it is linked, independently of other factors. On this question, past empirical work is inconclusive.
Id. at 714. To address this problem, the Harris County Study used data from hundreds of thousands of misdemeanor cases resolved in Harris County, Texas to measure the effect of pretrial detention on trial outcomes, including the likelihood of conviction, the likelihood of being sentenced to jail or prison, and the length of carceral sentences. Id. The researchers found that “detained defendants are 35% more likely
The Harris County study found a near-perfect proxy for trial fairness in its measurement of the effect of pretrial detention on the defendant‘s likelihood of pleading guilty—again, regardless of actual guilt. Put simply, a trial that is obviated by an innocent defendant pleading guilty to avoid pretrial detention is certainly not a fair one. However, although the Harris County Study measured an apposite dependent variable (the defendant‘s likelihood of pleading guilty), its independent variable was pretrial detention—not representation at a bail hearing, the Court‘s focus here.
Taken together, however, the Baltimore and Harris County Studies complete the two-step puzzle; each provides a piece of empirical evidence that representation at bail hearings is outcome-determinative. The Baltimore Study shows that unrepresented criminal defendants are much more likely than represented defendants to be held in pretrial detention. And the Harris County Study shows that detained defendants are much more likely to plead guilty than releasees, regardless of their actual guilt. These findings dovetail to present empirical evidence that defendants who are unrepresented at bail hearings are much more likely to plead guilty before trial, thus “reduc[ing] the trial . . . to a mere formality.” Gouveia, 467 U.S. at 189 (citing Wade, 388 U.S. at 224).
The Court finds this research to be an important advance in understanding the effects of representation at bail hearings on trial outcomes. Compare Gerstein, 420 U.S. at 123 (“To be sure, pretrial custody may affect to some extent the defendant‘s ability to assist in preparation of his defense, but this does not present the high probability of substantial harm identified as controlling in Wade and Coleman.“), with Heaton, Mayson & Stevenson, supra at 711 (“detained defendants are 35% more likely . . . to plead guilty” than similarly situated releasees (emphasis added)). Using data that were unavailable to the Supreme Court in Rothgery and its progeny, the Baltimore and Harris County studies show that the judicial officer‘s bail determination is an outcome-influencing stage.
To be sure, the Court cannot reasonably infer how the outcome-influencing theory of bail representation played out in Ms. Farella‘s and Mr. Murphy‘s cases directly. It is much too great a leap to assume that appearing with counsel at their bail determinations would have caused Judge Anglin to assign them affordable bonds or that bonding out would have caused them to take their cases to trial. The measurement methods employed in the Baltimore and Harris County Studies have far more explanatory power at the population level than the individual level—that‘s the nature of social science and statistics. But Plaintiffs appear in this lawsuit as representatives of a class. And based on the methodological sophistication of the Baltimore and Harris County Studies, the Court finds it reasonable to assume that their results are extensible to the population of indigent defendants that Plaintiffs represent.
Returning to the case law, in Torres v. Collins, 2023 WL 6166523 (E.D. Tenn. Sept. 21, 2023), the U.S. District Court for the Eastern District of Tennessee incorporated the outcome-influencing theory in its holding that “a bail hearing is a ‘critical stage’ of the criminal prosecution against an arrestee, requiring the presence of counsel.” Id. at *12.
Without the assistance of counsel at pretrial detention hearings, an arrestee‘s
case can suffer significant consequences because erroneous pretrial detention can negatively impact an arrestee‘s ability to meet with counsel, result in physical and psychological burdens that can obstruct trial preparation with counsel, and heighten the possibility that an arrestee will accept a plea agreement he would have otherwise rejected but for his erroneous pretrial detention.
Id. (emphasis added) (footnote omitted). The Court finds Torres to be a persuasive application of the outcome-influencing theory to Sixth Amendment law.
A similar logic applies here. Applying the Supreme Court‘s reasoning in Wade to the empirical findings and undisputed facts at bar, the Court finds that bail hearings are an outcome-influencing stage because counsel‘s absence at the bail determination derogates from the defendants Sixth Amendment trial rights by increasing the likelihood that defendants will plead guilty before trial. See 388 U.S. at 226.
* * *
For these reasons, the Court concludes that Plaintiffs’ Sixth Amendment right to counsel attaches at Judge Anglin‘s
It follows that Plaintiffs have a Sixth Amendment right to counsel at Judge Anglin‘s bail determination, and that their right to counsel was violated when none was appointed at their
B. Injunctive Relief
In addition to a declaratory judgment, Plaintiffs ask the Court to enter a permanent injunction ordering that indigent defendants must have appointed counsel present at bail hearings before Judge Anglin. (Doc. 34, ¶¶ 50). The Court considers the injunction under the following legal standard:
“A permanent injunction requires the moving party to show actual success on the merits.” If actual success is found, courts must then consider three factors to determine whether a permanent injunction is warranted: “(1) the threat of
irreparable harm to the moving party; (2) the balance of harms with any injury an injunction might inflict on other parties; and (3) the public interest.”
Miller v. Thurston, 967 F.3d 727, 735-36 (8th Cir. 2020) (quoting Oglala Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008)); see also Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc) (applying these factors to a preliminary injunction analysis); Bank One, Utah v. Guttau, 190 F.3d 844, 847 (8th Cir. 1999) (“[T]he four Dataphase factors are applicable in cases involving permanent injunctions.“). Plaintiffs have shown actual success on the merits, so the Court turns to the remaining three Dataphase factors.
1. Irreparable Harm to Plaintiff
“To succeed in demonstrating a threat of irreparable harm, ‘a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.‘” S.J.W. ex rel. Wilson v. Lee‘s Summit R-7 Sch. Dist., 696 F.3d 771, 778 (8th Cir. 2012) (quoting Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011) and Iowa Utils. Bd. v. Fed. Commc‘ns Comm‘n, 109 F.3d 418, 425 (8th Cir. 1996)). Here, the harm to Plaintiffs is clearly irreparable. The undisputed facts show that their Sixth Amendment right to counsel was violated. And the right to counsel of the class they represent will continue to be violated absent an injunction. Moreover, the certain constitutional harm to Plaintiffs causes them to “suffer[ ] a loss of liberty—which is perhaps the best example of irreparable harm.” Matacua v. Frank, 308 F. Supp. 3d 1019, 1025 (D. Minn. 2018). The Court finds that this factor weighs heavily in favor of injunctive relief.
2. Balance of Harms
The next factor requires that “a court should flexibly weigh the case‘s particular circumstances to determine whether . . . justice requires the court to intervene . . . .” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (citation and internal quotation marks omitted). “When balancing harms, the balance must tip ‘decidedly in favor’ of the requesting party.” CitiMortgage, Inc. v. Sellors, 2017 WL 6398174, at *12 (D. Minn. Nov. 21, 2017), report and recommendation adopted, 2017 WL 6389673 (D. Minn. Dec. 13, 2017) (quoting United Indus. Corp., 140 F.3d at 1184).
On one hand, Plaintiffs face the irreparable harm of appearing unrepresented at a critical stage of the criminal proceedings against them in violation of their Sixth Amendment right to counsel. And Judge Anglin testified that he wishes public defenders were present at and engaged in his bail determinations—he believes it would benefit the judicial system for them to do so and would welcome their participation. (Doc. 98-2, pp. 22, 56 (“I would prefer that the public defender‘s office . . . show up at the bond hearings. . . . I think it would be beneficial.“)).
On the other hand, the Public Defenders argue that the requested injunction would strain their capacity to provide effective public defense services because public defenders would have to attend bail hearings in addition to their current duties. However, their argument is undercut by the undisputed fact that in Washington County, an adjacent county in the same metropolitan area, which is nearly identical size, public defenders (and prosecutors) do attend
3. Public Interest
Turning, to the last Dataphase factor, the Court restates the axiom that “[i]n the end, ‘it is always in the public interest to protect constitutional rights.‘” Carson v. Simon, 978 F.3d 1051, 1061 (8th Cir. 2020) (quoting Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City of Manchester, 697 F.3d 678, 692 (8th Cir. 2012) (en banc)). Here, Plaintiffs’ Sixth Amendment right to counsel is at stake, and it is in the public interest to enforce it.
* * *
Taken together, the Court finds that the Dataphase factors show that a permanent injunction is warranted. Plaintiffs have shown success on the merits, and the other Dataphase factors clearly weigh in their favor. Plaintiffs’ Motion for Summary Judgment is thus GRANTED as to their prayer for injunctive relief.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 96) is GRANTED and Defendant Anglin‘s Motion for Summary Judgment (Doc. 99) is DENIED.
IT IS FURTHER ORDERED that:
- Plaintiffs’ prayer for declaratory relief is granted as to Count I.
- Defendants and their respective officers, agents, and attorneys are immediately enjoined: they must ensure that indigent defendants are represented by appointed counsel at Judge Anglin‘s
Rule 8.1 Hearings when he determines bail.
Judgment will enter contemporaneously with this opinion.
IT IS SO ORDERED on this 21st day of August, 2024.
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE