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Hays County Commissioners Court received a presentation regarding a study referencing the impacts of the presence of defendant counsel at magistration, during their regularly scheduled meeting Tuesday, Aug. 22.
According to information presented to commissioners, the study — undertaken from July 6, 2020 to July 11, 2021 — found that when defense attorneys at on site during the first appearance of defendants, the results included lowered bond amounts, increased number and severity of bond conditions, increased requests for indigency applications but had no impact on bond type, mental health evaluation orders, days in custody, time to final decision, failure to appear and recidivism.
Texas A&M Associate Research Scientist Dr. George Naufal said one of the challenges with the study was that the presence of counsel caused the process to take longer, and some of the successes were that attorneys perceived the defendant to be grateful for their presence– particularly for first time offenders and judges felt attorneys provided them with important information.
Naufal said the research team looked at outcomes for defendants, including bond amounts and days until released, when an attorney was present at a first appearance before a judge.
Naufal added that the presence of defense counsel was randomized in the study. For example, there were times when counsel was present and times when they were not. He said at times when the defense attorney was present, so was the prosecutor.
Naufal said the primary outcomes measured were bond amount, bond type, bond conditions, court-appointed counsel request, order for 16.22 evaluation–mental health evaluation order—and days to release. He said the secondary outcomes measured were recidivism, time to disposition– final settlement, disposition type and cost.
Naufal said the study was funded, in part, by a grant from the Texas Indigent Commission, that provided $127,534, with the total cost of the study at $210,430.
“About 8% of defendants refused counsel,” Naufal said. “Attorneys are not trained to be mental health experts, but we asked them, ‘In your experience, do you believe there’s some sort of mental health issues or intellectual disabilities?’ So, attorneys reported, on those interviews, about 18%, and 5.6% on average [actually] suffered from mental health or intellectual disabilities.”
Naufal said that the presence of counsel lowered the average bail amount from approximately $15,000 to approximately $12,000, but there was no impact on the type of bond–personal recognizance or financial. He said defendants who saw attorneys were 44% more likely to receive more bond conditions and 72% more likely to receive stricter bond conditions.
Naufal said defendants with counsel at first appearance were 21% more likely to request courtappointed attorneys, and there was no impact on mental health evaluation orders. He said that having an attorney at magistration had no impact on the amount of time spent in custody.
Other factors that counsel presence had no impact on were length to disposition, type of disposition, recidivism and failure to appear, according to Naufal. He added that these outcomes were somewhat expected in that these factors occurred much later in the process.
Chevo Pastrano, a local attorney, said he had some concerns about the study while it was underway.
“It was a little troubling to practical attorneys,” Pastrano said. “This attorney [counsel at first appearance] has to make some strategic decisions about what they’re going to disclose at magistration, that then affect the rest of the case.”
Pastrano added because of the impact of the CAFA attorney on the entirety of the case, a practicing attorney would likely instruct the client to reject the CAFA attorney.
He said this could have impacted the data. Pastrano said he feels this is an ethical issue as well, because the role of an attorney is to do what is best for the outcome of the entire case, not just bond.
“We may be saving a guy three days in jail, but adding three years in prison,” Pastrano said.
Assistant District Attorney Gregg Cox said he does see value in having counsel present at magistration, and that attorneys often find it challenging to receive access to magistration proceedings.
Cox said he also saw issues with some of the findings.
“I think the fact that you had a prosecutor present during the study is why you saw more bond conditions and stricter bond conditions being tacked on to these things,” Cox said.
He added that much has changed since this study was conducted , such as the addition of a pretrial services office and a public defenders office, as well as new administration at the district attorney's office.
“I wish this study could have been conducted after those things were in place,” Cox said. “I think there would have been different findings, if the study had been done now versus when it was done.”
Hays County Judge Ruben Becerra said he hopes the Texas Indigent Commission would be willing to fund another study.
He added that, with a new study, there could be a comparison between the findings in the previous study and the findings after the implementation of the new programs Cox discussed.
