Dallas judge improperly links ability to make bail to appointing counsel

by Scott Henson of Grits For Breakfast

Defendant was told he could choose to post bail or receive court-appointed attorney -- but not both.

Harry Williams, an attorney with the Texas Fair Defense Project, emailed today to say TFDP just filed a writ whose outcome could have ripple effects around the state:

I wanted to let you know about a writ the Texas Fair Defense Project filed today (ed. note: uploaded here).

It seems that in Dallas County, asking for a court-appointed lawyer is enough to get you thrown in jail.

Joey Charbonneau was arrested on felony charges, placed in the Dallas County jail, and appointed a lawyer. The problems started when he was able to bond out. At that point, he was told by a clerk to Judge Don Adams, in Dallas County Criminal District Court No. 2, that defendants on bond out are not eligible for appointed counsel. If he wanted an appointed lawyer, Charbonneau would have to surrender his bond and return to jail.

By Texas law, however, judges are prohibited from considering whether a defendant is able to make bond when appointing counsel. The only exception is if the ability to make bond shows the defendant has money of his own. Often, however, family or friends provide the bail money, and by state law the judge can’t require a defendant to get his friends or family to pay for a lawyer. The U.S. Supreme Court has said the same thing.

Charbonneau didn’t have a job or other assets, so he persisted in asking for an attorney. When he finally got in front of the judge to request counsel, Judge Adams told him to get a job and come back the next day with a hired attorney. As you might imagine, it’s difficult to find work when you are facing a felony charge. When Charbonneau appeared the next day, unable to find a job and without an attorney, Judge Adams again told him to get a job and come back with a hired attorney. Judge Adams also suggested that Charbonneau’s father, who lives on disability payments, hire a lawyer for him. Yesterday, after several days of this routine, Judge Adams raised Charbonneau’s bond and threw him back in Dallas County jail. While Judge Adams was smart enough not to say he was throwing Charbonneau in jail for asking for appointed counsel, what he said would not, as it were, stand up in court: Adams said Charbonneau’s bond was “insufficient,” although Charbonneau was showing up to court nearly everyday to report on his progress in his job search.

This is a statewide problem. Defense lawyers in Harris County filed a judicial complaint against a Harris County district court judge for threatening to lock up defendants who did not hire lawyers. The defendants, like Charbonneau, were released on bond but could not afford to hire counsel. TFDP has documented this problems in several other courts across Texas .

It’s a weird dynamic, where judges are willing to make taxpayers pay for expensive beds in county jail, but get very stingy when it comes to appointing counsel.

The Dallas courthouse crowd will especially want to pay attention to this one: Harry was one of the attorneys who successfully sued a Texas drug task force in the Hearne case, and his boss, the inestimable Andrea Marsh, is a recognized expert on Texas' indigent defense laws. If they're headed to court on this, my guess is they've got the goods.

Harry's right, this is a weird dynamic; another example of how each part of the criminal justice system often appears to operate as though it's unaware of how decisions affect all the others. In the end, keeping a defendant in jail to punish them for not being able to afford a lawyer really just punishes taxpayers. That's who must pay $40 per day or so to incarcerate the defendant and will likely still end up paying for his lawyer. Meanwhile, the defendant can't work, earn money, pay taxes, etc., even if they wanted to; what's the sense of that?

In this case, the decision seems particularly bizarre because Dallas has a public defender, plus the county is under pressure from the federal government to reduce jail overcrowding. I'm sure Judge Adams thought he was saving the county money, but he's costing the county more than it saves. Ironically, if the Fair Defense Project succeeds, it may force the county to change short-sighted practices that have soaked the taxpayers through high jail costs and needless lawsuits for years.