Misdemeanor Appointments, Waiver of Counsel, and Pro Se Pleas

1. Misdemeanor Appointments, Waiver of Counsel, and Pro Se Pleas Andrea Marsh, Executive Director Texas Fair Defense Project Texas Task Force on Indigent Defense 2009 Indigent Defense Workshop October 22, 2009

2. Texas Fair Defense Project (TFDP) Mission TFDP works to improve the fairness and accuracy of the criminal justice system in Texas, with a primary focus on improving access to counsel and the quality of representation provided to poor people accused of crime.

3. Felony Appointment Trends

4. Misdemeanor Appointment Trends

5. Site Visits • Are defendants provided accurate information about their right to a court-appointed attorney at their initial post-arrest appearance before a magistrate? Are they informed of the procedures for requesting counsel and given an opportunity to apply for counsel at that time? • Are requests for court-appointed counsel submitted at the magistrate hearing timely processed and ruled upon, including requests submitted by defendants who are subsequently released on bond? • Are defendants provided accurate information about their right to court-appointed counsel at their first appearance in county court? Are they informed of the procedures for requesting counsel and given an opportunity to apply for counsel at that time? • Are unrepresented defendants directed or encouraged by the court or court staff to talk to a prosecutor? If so, are defendants accurately informed of the right to counsel and given an opportunity to apply for counsel before that occurs? Are defendants with pending requests for counsel directed to talk to prosecutors or approached by prosecutors?

6. Site Visit Findings • Judicial admonishments regarding the right to counsel often are incomplete and misleading because they focus exclusively on the right to counsel at trial. For example, defendants at arraignment (when a plea is entered) often are told that they have a right to the assistance of counsel if they choose to go to trial but not that they have a right to counsel at the arraignment itself before they decide whether to enter a plea/what plea to enter. • Most counties have specific financial criteria for determining whether a defendant qualifies for court-appointed counsel. However, in many jurisdictions judges do not apply those criteria in a uniform manner. In many instances, judges deny a defendant’s request for counsel without examining her finances to determine whether she meets the county’s indigence standard, solely because she is employed and/or released on bond. • In one-third of the counties visited, arrestees who post bond are not provided an opportunity to request a court-appointed lawyer at their magistrate hearing in violation of state law.

7. Site Visit Findings, con’t • In other counties, local officials will not process or rule on requests for counsel made at magistration if the defendant posts bond subsequent to making the request. These counties generally do not have recordkeeping mechanisms in place that allow officials to determine which defendants have pending requests for counsel that have not been ruled on by the time they appear for arraignment, so judges and prosecutors do not comply with statutory restrictions on their communications with unrepresented defendants who have pending requests for counsel. • In two counties prosecutors approach defendants at their first court appearance before defendants are informed of the right to counsel by the court and given an opportunity to apply for court-appointed counsel. • In another county, prosecutors routinely address defendants who have requested court-appointed counsel before there has been a ruling on the request.

8. Best Practices • Appointment of defense counsel at defendants’ initial appearance before the magistrate, including immediate screening to determine whether defendants are indigent. • Establishment of a system for matching requests for court-appointed counsel, including those submitted to a magistrate, to court files/charging documents. • Designation of an indigent defense coordinator who receives training on the right to counsel. • Distribution of forms that accurately inform defendants of their right to court-appointed counsel at all stages of the criminal proceedings against them and explain the procedures for requesting counsel.

9. Best Practices, con’t • Implementation of policies that ensure that defendants have an opportunity to request counsel before they are directed to or approached by a prosecutor. • Prosecutor policies that forbid communication with a defendant after she has made a request for a court-appointed lawyer, unless the request was denied by the court. • Establishment and uniform implementation of eligibility criteria for appointed counsel that are based on objective financial data, such as whether an applicant’s income is below a set percentage of the federal poverty guidelines.