A "critical" Question of State Law: Georgia's Ambiguous Treatment of Initial Appearance Hearings and Implications of Bail Reform

• Publication year: 2019

A "Critical" Question of State Law: Georgia's Ambiguous Treatment of Initial Appearance Hearings and Implications of Bail Reform

Anne Miller Reynolds

A "CRITICAL" QUESTION OF STATE LAW: GEORGIA'S AMBIGUOUS TREATMENT OF INITIAL APPEARANCE HEARINGS AND THE IMPLICATIONS OF BAIL REFORM

Anne Miller Reynolds^*

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The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel at critical stages of a proceeding. While the U.S. Supreme Court has not addressed whether initial bail hearings are critical stages of a proceeding, several states have elected to provide greater protection for criminal defendants by holding that bail hearings are critical stages. However, Georgia has avoided this question, as Georgia has held that initial appearance hearings, in which questions of bail are often decided, are "not often" critical stages of a proceeding. Logically, it follows that initial appearance hearings must sometimes be critical stages of a proceeding. This Note argues that initial appearance hearings, insofar as they encompass questions of bail, should be considered critical stages. In so doing, this Note examines Georgia's history of providing greater protection to criminal defendants than the federal government and the implications of bail reform.

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Table of Contents

I. Introduction..........................................................................365

A. THE SIXTH AMENDMENT RIGHT TO COUNSEL: WHERE'S MY LAWYER?....................................................................... 367

1. The Basic Prerequisites and Philosophy of Representation under the Sixth Amendment.........367
2. Critical Stage Jurisprudence..................................368
3. Bail Hearings and Critical Stages: The Federal Question.................................................................369

B. THE RIGHT TO COUNSEL IN GEORGIA.............................. 371
C. GEORGIA'S CRITICAL STAGE JURISPRUDENCE................. 371

1. What Is a Critical Stage?.........................................371
2. What Is Not a Critical Stage? .................................. 374
3. Bail Hearings........................................................... 375
4. Georgia Counties Currently Do Not Guarantee the Right to Counsel at Initial Appearance Hearings......................................................................................376

II. Argument..............................................................................377

A. GEORGIA'S CRITICAL STAGE JURISPRUDENCE IS UNACCEPTABLY VAGUE.................................................377
B. AREAS OF PERSUASIVE AUTHORITY................................. 377

1. Georgia Provides More Protection in Other Areas of Criminal Law than the Federal Government........ 378
2. Other States Have Found that Bail Hearings Are Critical Stages....................................................... 379
3. Data Suggests that Initial Bail Hearings Are Critical Stages.....................................................................380

C. GEORGIA SHOULD FIND THAT BAIL HEARINGS ARE CRITICAL STAGES......................................................................... 382

1. Georgia Case Law Indicates that Those Stages at Which Bail Questions Arise Should Be Considered Critical Stages....................................................... 382
2. Potential Solutions to Georgia's "Critical"Problem.... ............................................................................... 384

III. Conclusion..........................................................................385

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I. Introduction

A criminal defendant in Georgia enters the courtroom for her initial appearance. During this appearance, a judicial officer will address issues of bail and schedule a date for a commitment hearing.¹ If the crime that the accused is charged with is not one for which bail must be set by a superior court judge, then the judicial officer will set bail.² The setting of this defendant's bail is crucial; although some defendants may find it easy to post whatever bail the judicial officer sets, this particular defendant may not be able to afford a bond that is too high and may consequently be forced to stay in jail for a much longer period of time.

Situations such as these are far too common in the United States today.³ For some criminal defendants, bail hearings pose little problem—these defendants may not be wealthy, but they have the means to post whatever bail the judge may set. However, for many indigent defendants, bail can be unaffordable.⁴ Thus, bail hearings can determine whether these defendants will have to remain imprisoned for even relatively minor charges, such as drug possession, or if they can go free, as do many other defendants at this stage of a criminal proceeding.⁵ Very few jurisdictions currently ensure representation at bail hearings, which means that most of

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the time these defendants must navigate this critical bail process alone.⁶

The Sixth Amendment of the U.S. Constitution guarantees a criminal defendant the right to counsel in all adversarial proceedings⁷ but only once "formal judicial proceedings" have actually begun.⁸ And, even after such proceedings begin, a criminal defendant is only entitled to the assistance of counsel at "critical" stages of judicial proceedings.⁹ Likewise, the Constitution of the State of Georgia guarantees criminal defendants the right to the assistance of counsel.¹⁰ Georgia courts have applied an analysis similar to that of federal courts in determining when this constitutional provision is applicable. In applying that analysis, courts typically find that defendants only possess the right to have counsel present at "critical" stages of a criminal proceeding.¹¹ Although the right to counsel is guaranteed at both the state and federal level, this right does not automatically attach upon the moment of arrest; instead, it attaches when certain conditions in criminal proceedings have been satisfied.¹² And, unfortunately for our hypothetical defendant, it is unclear whether she is entitled to the right to have counsel present during bail hearings. Her right to counsel may entirely depend on the jurisdiction in which she is initially brought before a judicial officer or magistrate.

Currently, it is unclear whether criminal defendants are entitled to representation at bail hearings pursuant to either the Sixth Amendment or the Georgia Constitution. This Note will argue that Georgia courts' application of the right to counsel is unacceptably (and perhaps unconstitutionally) vague with respect to bail

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hearings and initial appearances. As a solution, this Note urges Georgia to affirmatively rule that an initial appearance hearing, insofar that questions of bail are decided during the hearing, is a critical stage. This Note will further argue that adopting a risk-based approach to bail reform would help alleviate the concerns governments may have about providing such additional representation. In coming to these conclusions, this Note will examine right-to-counsel jurisprudence both in states finding that initial appearances are critical stages of a proceeding and in states that find they are not. Additionally, this Note will explore alternative bases for arguing that Georgia's right to counsel extends to bail hearings, such as examining whether Georgia has provided broader constitutional protections to criminal defendants than are available under federal law. In the course of developing its conclusion, this Note will gather data regarding representation at initial appearances in Georgia in various counties across the state.

Part I of this Note will provide a brief overview of the current state of the Sixth Amendment right to counsel, what constitutes a "critical stage" of a proceeding at the federal level, and Georgia's critical stage jurisprudence. Part II of this Note will argue that initial appearance hearings, at least so far as they involve questions of bail, should be considered critical stages. In so doing, Part II will examine empirical data and the approaches of other states. Part II will additionally rely upon Georgia's expanded protections in other areas of criminal law and will propose solutions to this question. Finally, Part III will conclude that Georgia should affirmatively decide which initial appearance hearings are critical stages.

A. THE SIXTH AMENDMENT RIGHT TO COUNSEL: WHERE'S MY LAWYER?

Although the Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, it only does so for "critical stages."¹³ Further, the U.S. Supreme Court has not ruled on whether bail hearings are critical stages, leaving this area of law unclear at the federal level.¹⁴

1. The Basic Prerequisites and Philosophy of Representation under the Sixth Amendment.

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The Sixth Amendment of the U.S. Constitution mandates that defendants "[i]n all criminal prosecutions" are entitled to counsel to help with preparing a defense.¹⁵ The U.S. Supreme Court has acknowledged that this right to counsel "attaches at the first formal proceeding" against a criminal defendant.¹⁶ The Court has indicated that such "attachment" occurs when the government uses "judicial machinery to signal a commitment to prosecute."¹⁷ However, this enumeration is deceptively broad—although the general right to counsel in criminal proceedings may "attach" during certain proceedings, the actual right to have counsel present does not necessarily coincide with this attachment.¹⁸ Rather, the Court has made it clear that the attachment of the right to counsel only means that adversarial proceedings have been initiated, whereas the actual right to the presence of counsel does not occur until a "critical stage" of a criminal proceeding.¹⁹

2. Critical Stage Jurisprudence.

It is not precisely clear which proceedings are "critical" and which are not. The factors that determine whether a proceeding is a...