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Art.15.17 HEARINGS

Art.15.17 HEARINGS. TMCEC’s Regional Judges’ Seminar Galveston, February 27, 2012. J J ames Bethke , Director, Texas Indigent Defense Commission Mike Coffey , Judge, Austin Community Court. www.txcourts.gov/tidc. ARTICLE 15.17 HEARINGS.

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Art.15.17 HEARINGS

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  1. Art.15.17 HEARINGS TMCEC’s Regional Judges’ Seminar Galveston, February 27, 2012 J James Bethke, Director, Texas Indigent Defense Commission Mike Coffey, Judge, Austin Community Court

  2. www.txcourts.gov/tidc

  3. ARTICLE 15.17HEARINGS

  4. When was the last time you readArticle 15.17, CCP? • Yesterday in prep for today’s class • Within the last year • Within the last 10 years • None of the above • All of the above

  5. What phrase below is not part of Article 15.17, CCP? • Right to retain counsel • Right to remain silent • Right to terminate interview • Determine probable cause • opportunity to consult counsel

  6. TODAY’S AGENDA 2. Discuss/Apply Key Requirements 1. List Statutory Duties / Article 15.17 3. Review Significant Cases 4. Highlight Ancillary Issues 5. TIDC / Access Your Local Plan

  7. Article 15.17STATUTORYREQUIREMENTS

  8. How many duties are enumerated under article 15.17, CCP? • 20 or more • 12 • 10 • 6 • None of the above

  9. Six Major Areas • Notice of Charges • Right to Counsel • Interrogation Rights • Examining Trial • Set Bail • Consultation with Counsel

  10. Art. 15.17. Duties of Arresting Officerand Magistrate • For every arrest • Person having custody of arrestee • Shall without delay—w/in 48 hours* • Take arrestee before Magistrate • In person or electronic broadcast system

  11. Art. 15.17. Duties of Arresting Officer and Magistrate “The magistrate SHALL inform in clear language the person arrested” “. . . the accusation against him and any affidavit filed therewith . . .”

  12. THE MAGISTRATE SHALLINFORM OF RIGHT TO: • Retain Counsel • Request appointment of counsel • Remain silent • Counsel during interview • Terminate interview • Examining trial (felony only)

  13. An Art. 15.17 hearing invokes a person’s: • 5th Amendment Right to Counsel • 6th Amendment Right to Counsel

  14. Magistrate Shall Also Explain: • No requirement a give a statement • Any statement made by him may be used against him

  15. Magistrate Shall Also “Allow the person arrested reasonable time and opportunity to consult counsel”

  16. “The Magistrate ShallEnsure that reasonable assistance in completing necessary forms for requesting appointment of counsel is provided to person at the same time.”

  17. Non-English Speaking or Deaf “The magistrate shall inform the person in a manner consistent with articles 38.30 and 38.31”

  18. For Foreign Nationals • Explain right to contact consulate/embassy • Do they want you to contact?

  19. Magistrate Shall • Determine if arrestee currently on bail • Admit arrestee to bail if allowed by law

  20. The 15.17 Record subsection (a) Vs. subsection (e) *See, subsection (f)too

  21. Making the Record Subsection (a) “A recording of the communication between the arrested person and the magistrate shall be made.” [electronic broadcast system] Subsection (e) “In each case in which a person arrested is taken before a magistrate as required by subsection (a), a record shall be made of: . . .” [Fair Defense Act]

  22. Making the Record Subsection (a) – REQUIRES A COMPREHENSIVE RECORDING OF ENTIRE COMMUNICATION BETWEEN THE ARRESTED PERSON AND MAGISTRATE. Subsection (e) – only requires recordation of information concerning whether person was, informed, asked and requested court appointed counsel. And per subsection (f) a record a record under (e) may be written or electronic and may REQUIRE add’l information pursuant local indigent defense plan.

  23. Magistrate May . . . • 15.17(b)—Release accused without bond if: • Arrestee charged w/ “fine only” misdemeanor • Arrestee identified w/ “certainty” • Arrestee ordered to appear in writing • Time, date & place • W/ magistrate’s signature • Arrestee given copy of order • Not applicable if arrestee previously convicted of an offense other than a “fine only” misdemeanor

  24. Interpreters for the Deaf Article 15.17(c) • Interpreters qualified & sworn pursuant to Tx CCP art. 38.31 • Shallinterpret required warnings • In a language the deaf accused can understand

  25. “Catch and Release Proceedings” Article 15.17(g) • For citations issued under art. 14.06 (b) and (c) shall perform duties in same manner as an arrest. • Shallissue warrant if person does not appear as required on citation

  26. Magistrate has NO duty to: Wait for arrival of a prosecutor to screen the cases, etc. • Tx AG Op. No. JM-151, 1984.

  27. A magistrate may receive a stipend above salary to perform a magistrate hearing under limited circumstances. • True • False

  28. Right to Counsel

  29. Walt Rothgery v. Gillespie County128 S. Ct. 2578Decided June 23, 2008

  30. Does an Article 15.17 hearing (magistration) in Texas mark the initiation of adversary judicial proceedings, “with the consequent state obligation to appoint counsel within a reasonable time after a request for assistance is made”? • Yes • No

  31. “[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” (128 S. Ct. at 2592)

  32. Does the right to counsel attach at the Article 15.17 hearing even if a prosecutor is not aware of or involved in its conduct? • Yes • No

  33. Is an indictment required in order to commence adversary judicial proceedings and cause the right to counsel to attach? • Yes • No

  34. Why Do Defendants Need Lawyers After Their Art. 15.17 Hearing? “[A] defendant subject to accusation after initial appearance is headed for trial and needs to get a lawyer working, whether to attempt to avoid trial or to be ready with a defense when the trial date arrives.” (Rothgery, 128 S. Ct. at 2590)

  35. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .

  36. Under Federal Constitutional Law? • “[C]ounsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” (Rothgery, 128 S. Ct. at 2591) • Defendants are entitled to counsel to help them prepare for critical-stage proceedings, and to decide whether to undergo optional/voluntary critical-stage proceedings. (Estelle v. Smith, 451 U.S. 454, 471 (1981))

  37. Example of Critical-Stage Proceedings • Interrogations after the Art. 15.17 Hearing • Line-Ups after the Art. 15.17 Hearing • Examining Trials • Psychiatric Exams • Plea Negotiations • Arraignment • Pre-Trial Hearings • Trial

  38. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .

  39. Under the Texas Code of Criminal Procedure? If the Defendant is in Custody: “[I]f an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, [the appointing authority] shall appoint counsel as soon as possible,” but not later than 1 to 3 working days (depending on county size) after the appointing authority receives the defendant’s request for counsel. (Texas Code of Criminal Procedure art. 1.051(c))

  40. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .

  41. Under the Texas Code of Criminal Procedure? If the Defendant is Released on Bond: “Notwithstanding any other provision of this section, if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.” (Texas Code of Criminal Procedure art. 1.051(j))

  42. How Not to Hold Court

  43. How Not to Hold Court

  44. Ancillary Issue Identification

  45. “if allowed by law” • Texas Constitution Art. 1, • Section 11—“All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident . . .” • Section11a–MULTIPLE CONVICTIONS; DENIAL OF BAIL

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