Public defender Donnie Yandell walked into a West Texas courtroom for the arraignment of defendants facing misdemeanor charges one day and witnessed some odd negotiations that deeply disturbed him. “I was flabbergasted,” said Yarnell, an attorney with the Caprock Region Public Defender’s Office in West Texas. “The judge asked this person if they wanted a court-appointed attorney. Before the person responded, the judge cut in and said, ‘Well, if, if you want a court-appointed attorney, you can talk to the prosecutor first and see what the offer is. And if you don’t like the offer, then you’re more than welcome to have a court-appointed attorney.’”
The scenario the judge proposed appeared to violate a Texas law that requires that an arrested individual be immediately allowed to apply for a public defender if they can’t afford an attorney. That application must be approved or denied before any prosecutor communicates with the defendant about their case. Then the prosecutor made an offer that seemed like severe punishment for a “minor misdemeanor offense,” Yandell recalled. “One so bad that I don’t think any defense attorney would’ve ever agreed to it. And the judge says, ‘Yeah, you might want to really consider that offer because that’s about as good as you’re going to get.’”
Criminal justice advocates say that the same unorthodox and likely illegal process happens all across Texas—usually in smaller counties—and such shortcuts are making a mockery of laws that require that all accused people in Texas be afforded the right to an attorney. “Counties are putting in place systems to provide indigent defense, and then they are literally not doing it to the point that there is no right to counsel in misdemeanor cases,” said Andrew Davies, director of research at Southern Methodist University’s Deason Center, which studies criminal legal reform. “It’s incredibly shocking to me to be able to say that in parts of Texas, there is no real right to counsel in misdemeanor court.”
