You Made Gideon a Promise, Eh?: Advocating for Mandated Publicly Appointed Counsel at Bail Hearings in the United States Through Domestic Comparisons With Canadian Practices and Legal Considerations

• Publication year: 2019

You Made Gideon a Promise, Eh?: Advocating for Mandated Publicly Appointed Counsel at Bail Hearings in the United States Through Domestic Comparisons with Canadian Practices and Legal Considerations

Lauren Elizabeth Lisauskas^*

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Table of Contents

I. Introduction................................................................................159

II. Background..................................................................................162

A. The History of Bail..............................................................162

i. United States of America................................................163
ii. Canada...........................................................................165

B. Criminal Justice Systems and Indigent Counsel.................166

i. United States of America................................................166
ii. Canada...........................................................................167

III. Analysis.........................................................................................169

A. American Practices..............................................................169

i. Sources of Law................................................................169
ii. Open Questions of Law.................................................171

a. What is a "Critical Stage"?....................................171
b. Is There a Non-Constitutional Remedy?.................174

B. Canadian Practices.............................................................175

i. Sources of Law...............................................................175
ii. Open Questions of Law.................................................178

C. Commonalities.....................................................................178
D. Distinctions..........................................................................182
E. Policy and What We Can Learn from Each Other..............183
F. Counter-Arguments Regarding the Practicality of Implementation..................................................................187

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IV. Conclusion.........................................................................................188

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I. Introduction

It is a hot July day in Texas. You are minding your own business when, suddenly, the police knock on your door. You open it, speaking with candor and respect, to inquire about the purpose for their visit. Abruptly, you are handcuffed. Amidst your confusion and shock, you hear the officers mention things like "California" and "felon." You are perplexed; the only trouble you had with the law was a lifetime ago, when felonious charges were entirely dismissed through a diversion program you successfully completed. Your neighbors are watching, and the embarrassment and shame already begin to rush through your body.

It turns out the officers had no warrant to search you, and moreover, they were erroneous in their belief that you had a prior felony conviction. But, that is irrelevant, at least for now. You are booked into jail. You have seen enough television shows to know that you ought to get a lawyer, and you ask for appointed counsel, since money is tight and you cannot afford to pay for an attorney yourself. However, no one shows up that night to talk to you and hear you explain your side of the story. You spend the night in a cold cell, scared and alone.

The next morning, you see a judge who tells you that while no formal charges have been brought against you yet, you still have a bond for $5,000. Again, the judge says you can hire an an attorney and request that attorney to come to court if you want, but it is an embarrassing reminder that you simply cannot afford one, especially on top of the price you are going to have to pay the bail bondsman. You keep telling anyone you can that there is no way you could have committed this crime because you do not have a prior felony conviction. Therefore, you cannot be charged as a prior felon in possession of a firearm-it is a logical impossibility. No one listens.

While out on bond, you continue asking for a court appointed lawyer, since your financial status entitles you to representation by a public defender. Despite your persistence, you have not had any contact from counsel or the court. Six months later, just as you start to relax after the scare of the first arrest, the police show up again, and there you are, back in cuffs. A grand jury has returned an indictment for the charge. It is the same routine: you sit in jail for a night, you see the judge and ask for a lawyer, and nothing happens. It is not until you have spent five more days in confinement and made another request that you are finally appointed an attorney.

Then, finally, someone listens to you: you are not a felon. The public defender with tired eyes and a briefcase filled to the brim with different client files uncovers the truth and presents it to the court. Finally, in late April, the charges are dropped for a crime you could not have conceivably committed.

The hell is over, almost a year later. By legal standards, your name is "clean," but in the court of public opinion, it is anything but. Your neighbors remember you being taken away in the cop cars, not once, but twice, and they

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don't look at you the same way anymore. You are quickly falling behind on your rent payments. Your marriage is strained. You cannot focus at work, which results in reprimands from supervisors and threats that you will lose your job. More than anything, you are constantly in fear that you will be picked up by the police at any time in any place all over again.

While this sounds like a painful allegory warning us about the power of overzealous courts and mistaken identity, this story was reality for Walter Rothgary.¹ Despite countless requests for representation by a publicly appointed attorney he was entitled to, Mr. Rothgery was held hostage by the court system for close to a year on a clerical error which was quickly resolved with finality and ease once his lawyer was properly assigned. This is an issue that would have been fixed within a day if Mr. Rothgery had counsel present with him at the initial bail hearing as he requested.

An unanswered question under United States constitutional law is whether the Sixth Amendment right to counsel extends to bail hearings.² The Sixth Amendment, in part, provides: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense."³ Based off of this text, it has become settled law in the United States that when facing any charge that might carry a sentence of incarceration, a person has a right to effective assistance of counsel, coupled with the right to be appointed counsel if he or she cannot afford to hire one.⁴

Technically, this right attaches at a first appearance before a judicial officer.⁵ However, this guarantee does not necessarily mean counsel must be present at a bail hearing, commonly the first hearing involving a magistrate. Instead, the Supreme Court of the United States has held that once the right arises, "counsel must be appointed within a reasonable time . . . to allow for adequate representation at any critical stage before trial, as well as at trial itself."⁶

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The crux of answering this query is dependent upon whether a bail hearing itself is considered a "critical stage."⁷ Unfortunately, the term "critical stage" has no clear or uniform definition in American jurisprudence.⁸ In the U.S., there is no recognized constitutional right to the presence of appointed counsel for the indigent at bail hearings.⁹ When state trial and appellate courts have tackled this issue before, there have been varied responses.¹⁰ In fact, only ten states in America uniformly provide counsel at an accused's first appearance before a judicial officer.¹¹ While a number of scholars are wrestling with this issue domestically¹² , this Note will consider the legal sources that provinces in Canada have considered in their journey toward mandated counsel for the indigent at bail hearings in order to provide further guidance and suggestion to future American court decisions.

Part II provides a comparative background of the American and Canadian criminal justice systems, specifically focusing on the history of bail in both nations, as well as current approaches toward publicly-appointed counsel for the indigent and bail hearings.

Part III includes an analysis of Canadian and American courts' considerations of what rights should be afforded to criminal defendants at the bail hearing stage, primarily the current state of the mandatory counsel representation for the indigent at bail hearings. The current practices in each country will be compared against the source of law from which the right to publicly-appointed counsel is derived in each nation respectively. Additionally, this Note will compare the systems against one another to determine the legality of current practices, as well as the fulfilment of these practices to each country's underlying values and goals of justice. This section goes on to identify the open legal questions that need resolution before mandated public counsel in bail

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hearings can be affirmatively granted and make predictive assessments of how those questions will be answered, given court precedent in each nation. Finally, the analysis in this Note will highlight growing policy considerations from both nations and the impact those values have had in shaping growing trends or pilot programs relating to counsel for the indigent at bail hearings.

Part IV concludes that in both Canada and the United States requiring publicly-appointed counsel to criminal defendants at their first bail hearing is the best way to ensure fairness and equality in the legal system and to properly protect their constitutionally guaranteed rights. Further, if Canada and the United States were to implement this practice in...