Federal judge recommends Galveston County adopt a right to an attorney for felony defendants at bail hearings


A federal judge has recommended that Galveston County be required to provide attorneys to felony defendants at their initial bail hearings, a partial victory for reform advocates who say the county’s cash bail system is unconstitutional.

In a 45-page memorandum issued Wednesday, Magistrate Judge Andrew Edison cited a number of court cases, as well as Galveston County’s newly adopted policies for bail hearings, as sufficient evidence to enforce a right to counsel.

The magistrate judge did not recommend more comprehensive reforms such as those adopted by Harris County in a recent landmark settlement that effectively ended cash bail for misdemeanor defendants.

The ACLU of Texas and the Arnold & Porter law firm filed the Galveston County lawsuit in April 2018 on behalf of Aaron Booth, 37, who was arrested on felony drug possession charges but couldn’t afford to post his $20,000 bail — the minimum permitted under the county’s schedule for that charge.

The lawsuit accuses Galveston County officials, including local judges and magistrates as well as District Attorney Jack Roady, of operating an arbitrary, two-tiered system of justice based on wealth. The system violates the constitutional right to counsel, the right to due process and equal protection under the law, the suit alleges.

Attorneys for the ACLU of Texas and Galveston County each sought to declare victory in the wake of Edison’s preliminary order. U.S. District Judge George Hanks will make a final determination to adopt, alter, or deny Edison’s recommendations in the coming weeks.

Trisha Trigilio, staff attorney for the ACLU of Texas, said Edison’s recommendation of a right to an attorney reflects recognition of basic fairness.

“We are pleased that the magistrate has recommended this change to bail hearings in Galveston County,” Trigilio said. “Unsurprisingly, without lawyers to advocate for their release, many people wind up jailed unnecessarily. And even a short time in jail can have devastating repercussions on someone’s life.”

Joe Nixon, Galveston County’s lead attorney in the lawsuit, was pleased Edison recognized the county’s efforts to remake its bail system.

“The county has been working for several years in order to modify the process and protect both the community and the rights of the accused,” Nixon said. “The order gives clear recognition to the fact that the county’s efforts have been right on the mark.”

In his memorandum, Edison wrote that it is a “no brainer” an attorney would be needed to help a defendant navigate the legal system.

Edison noted Galveston County began making changes to its bail system before the lawsuit was filed in April 2018, including increasing the number of magistrates and providing an individualized bail hearing to each defendant.

The ACLU contends these changes don’t go far enough in solving fundamental problems with the cash bail system, notably that district judges, who have the statutory power to appoint attorneys to defendants, have resisted doing so.

Edison cited the county’s new procedures as enough evidence to protect against the “extraordinary and drastic remedy” sought by Booth to declare the cash bail system unconstitutional.

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