A federal lawsuit taking Benton County courts to task for how first appearance and bail hearings are conducted is about following proper legal procedures, high bonds and jail overcrowding, according to lawyers who filed the complaint.
The federal lawsuit argues not appointing a lawyer to represent people who can't afford to hire one in the earliest stages of a criminal case is a violation of their constitutional rights.
"It's a situation whose time has come, and I'm going to have to push it along because nobody seems to be interested in fixing it on their own," said Doug Norwood, one of the attorneys who filed the lawsuit last week.
The case was filed in U.S. District Court in Fayetteville by Norwood and Alison Lee on behalf of Abigail Farella and Logan Murphy. The lawsuit seeks class-action certification.
Farella has been released on bond. She's charged with possession of a controlled substance, possession of drug paraphernalia and shoplifting. Murphy was still in jail Friday. He's charged with fleeing, reckless driving, DUI and refusing a chemical test.
"Washington County, as far as I know, does have the public defender stand up for people at their bond hearings," Norwood said. "Benton County has never had that. So, this is about a way of trying to address the fact that so many people are being put in jail on high bonds, and they're filling up the jail."
Norwood said bonds were low enough people could hire a bondsman and get out of jail. But the bonds are so high for a significant number of them now, they can't afford a bail bondsman, he said. Norwood said a lawyer with understanding of the legal system, has a better chance when arguing for a lower bond than the accused alone.
"Bonds for a period of time in Washington and Benton County have been going up, kind of bail bond inflation, and it's got to the point now that it's backing up the jail so bad with these people that something's going to have to give," Norwood said.
If you have money, you can hire a lawyer to go to your bail hearing with you, but Norwood said that's very unusual.
"Most people don't take advantage of that, and I never have understood why," Norwood said. "If I were to ever get arrested, the first thing I would try to do is get a lawyer. But most people try to get a bail bondsman first."
Norwood said he has been following federal litigation on the issue four or five years.
"Basically the time is right to try and get it to where people have a lawyer at the bond hearing," Norwood said. "I've been a lawyer for 35 years. It's always been done this way in Benton County."
NOTHING PERSONAL
The case names Benton County District Court, Division 4, and District Judge A.J. Anglin specifically, in his official capacity, but says the practice is the same in all four district courts in Benton County.
The lawsuit seeks a permanent injunction and a judgment the practice violates the defendants' Sixth and 14th Amendment rights to have legal representation and due process.
The lawsuit argues Farella and Murphy were both arrested on felony charges and given bail hearings before Anglin. Both were found to be indigent, but didn't have attorneys appointed to represent them at their bail hearings.
Indigent means a person doesn't have sufficient income to afford a lawyer for defense in a criminal case. If the court finds a person indigent, it must appoint a public defender or other attorney to represent him.
"The rule is called Rule 8.2 in the Rules of Criminal Procedure. It says the judge at the initial contact with the defendant will try to make the assessment of whether the person is indigent. If they are indigent, you get them somebody at the hearing," Norwood said. "That's the rules of criminal procedure, the judges have not been following that, not in Benton County, none of them have been following that."
Anglin does about 25% of all felony and misdemeanor bail hearings in Benton County, according to the lawsuit.
"We don't have a problem with A.J. Anglin, he does it just like everybody else. We're not trying to single him out as being a bad judge, he's not. He's a good judge," Norwood said.
Anglin and the Arkansas Administrative Office of the Courts didn't respond to requests for comment. Nathan Smith, Benton County prosecuting attorney, declined comment, citing the ongoing litigation.
The class, if certified, would include all indigent individuals who have appeared or will appear before Anglin for a bail hearing and who have been or will be denied the right to counsel at bail hearings, according to the lawsuit.
"Indigents must have counsel at bail hearings that actively participate in the proceedings and are adequately prepared," according to the lawsuit.
Alison Lee, a partner with Norwood, said she has asked informally about how other jurisdictions handle the issue.
"I know a lot of places do it a lot like Washington County, but I'm not sure about everywhere else," Lee said. "But, that's part of the problem, it's different everywhere. It doesn't seem like anybody is following the same rules."
DOING IT DIFFERENTLY
Prosecuting Attorney Matt Durrett said, at a typical first appearance in Washington County, the person arrested is brought before a judge prior to regularly scheduled morning arraignments. Both deputy prosecutors and public defenders are on hand.
"We're already there for arraignments. If the judge determines they are eligible and they request an attorney then the judge will appoint them an attorney for purposes of their first appearance hearing," Durrett said. "I think that's what is contemplated by the rule so we do it."
Durrett said in some jurisdictions, the attorney appointed at first appearance may represent the defendant from that point forward.
The judge explains the pending charges and what rights the person has, and they're given an initial court date for formal arraignment where a plea will be entered to formal charges filed by prosecutors and further court dates are set, typically about 30 days later.
Their attorney can also make an argument for bond, if they want to, Durrett said.
Durrett said judges don't typically take up probable cause arguments at first appearances, but it can and has been done before.
"Usually they just argue bond if they're going to," he said.
Gregg Parrish, executive director of the Arkansas Public Defender Commission, said the Arkansas Rules of Criminal Procedure were amended in 2017 to clarify a lawyer has to be appointed to indigent defendants during their earliest appearance before a judge.
"Some jurisdictions are still not following it," Parrish said.
The rule was changed because in some parts of the state, people could spend 30 to 60 days or more in jail after their first appearance before being appointed a lawyer, Parrish said.
"Somebody sitting in jail that long, not only can they lose everything but, without a lawyer, they're still subject to be interrogated, unless they invoke their rights, and anybody can go in there and talk to them," Parrish said. "But, once I'm appointed and they're my client, you don't get to go talk to them as a law enforcement officer."
Parrish said getting a lawyer appointed earlier in the process means you might get the case resolved earlier, which is better for everyone.
"The sheriff would be very appreciative of not having someone in jail for an extra 30 days," Parrish said. "And, the client would be glad to get out an extra 30 days earlier as well."
Parrish said he will be watching the case closely.
"I think it raises some interesting questions both procedurally and ethically with constitutional ramifications," Parrish said. "I'm kind of surprised he didn't name the State of Arkansas in that because if they're wanting public defenders at those hearings, we don't have the manpower. We just don't."