Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
So welcome everyone back to another episode of Proof Over Precedent with me today, I'm Jim Greiner. And with me today are Rene Dancer, who has done many Access to Justice Lab interviews before and works for the Access to Justice Lab. And also George Nafal and Bethany Patterson.
And why don't we do some. Just some basic introductions because I know Bethany and George, who y' all are, but let's do some basic introductions. So, Bethany, starting with you, who are you?
[00:01:06] Speaker B: Hi, I'm Bethany Patterson. I'm a research associate at Texas A&M PPRI, a public policy research institute.
My background's in math and economics.
I deal mostly in data analysis and methodology, specifically in criminal justice.
[00:01:24] Speaker A: Terrifically. And George, who are you?
[00:01:28] Speaker C: Hi, my name is George Nafal. I'm a research scientist at the Public Policy Research Institute at Texas A and M University.
My background is applied microeconomics and econometrics, and I've had a previous life of working on issues around the Middle east, migration and remittances, and I transitioned to criminal justice about 10 years ago when I moved back to the United States.
[00:01:53] Speaker A: Terrific. And then, Renee, just in case this is folks first podcast with you, who are you?
[00:02:01] Speaker D: My name is Renee Dancer. I'm a researcher at the Access to Justice Lab and I have had the fortunate experience of knowing George and Bethany for as long as I've worked at the lab. They were some of my first lifelong friends that I made.
[00:02:17] Speaker A: Terrific. Terrific. Super.
And so, Bethany, why don't we get a fun fact about you? What's a fun fact about you?
[00:02:24] Speaker B: I have an ant farm in my office.
[00:02:27] Speaker A: Excellent. And how many ants do you have in it?
[00:02:30] Speaker B: I don't have ants yet because they're just offices and if I move them, the tunnels will collapse. So I have an empty ant farm in my office.
[00:02:40] Speaker A: You have an antless ant farm in your office?
Super. Well, that made. That one may be unique. That's maybe the first time I've ever heard that one. George, let's get a fun fact about you.
[00:02:51] Speaker C: Honestly, I. I'm struggling with this. You know, maybe I always Use the one that I. I always, you know, come back to is I speak three languages and English is the third language and is my weakest language.
[00:03:02] Speaker A: So what are the first two?
[00:03:05] Speaker C: Arabic and French.
[00:03:07] Speaker A: Super. And Renee, your turn.
[00:03:11] Speaker D: I have a really good one this time. To me, it's very similar to Bethany's ant farm.
So when I was in second grade, our class incubated chicken eggs.
And one thing I don't think any of you know about me is that I grew up on a farm.
So after a class incubates chicken eggs, do you need to do something with the chickens?
And so I got to take a chicken home and have a pet chicken because I had a place to keep it.
[00:03:46] Speaker A: Excellent. Fantastic. I did not know that about growing up on the farm. That would have been a fun fact on its own.
So. Super.
And I'll add my fun fact for the day is that I'm currently wearing a T shirt to one of my favorite movements, which is a movement called Birds Aren't Real, which has revealed that, in fact, in the 1970s, the Nixon administration began a program to replace all birds with robotic spies and has now succeeded. And so there are no real birds anymore in the world. And this is thoroughly documented on a website that you can Google Birds Aren't Real dot com, no spaces in between.
Super. So why don't we launch right in about this particular study that we're talking about today, which is we've called CAFA Council at first appear.
And let's set the stage here. So the. Basically what we're. What we're talking about is shortly after arrest, after an arrestee is the police officer brings an arrestee to the jail and the individual is booked, fingerprinted, take a mug shot, does a basic interview, turns in possessions and all that stuff is admitted to the jail shortly after arrest if the individual doesn't immediately post bond according to a bond schedule, they ordinarily exist pursuant to court rule and, or to a legislative enactment. In other words, they don't pull out a credit card right on the spot and say, how much? How much?
What am I charged with? And how much would it cost me to deposit with you as a guarantee that I'll come back if they can't do that, which is almost all defendants, Most people don't have enough of a credit card limit to do that. Then they're held in jail until they can see a judge.
And at that point, that's that Seeing a judge will be the first appearance hearing.
And, and, and here's where I start to get confused. And so here's where I'm going to start to, to ask for some help. So, Renee, as the, as, as a lawyer, former practicing lawyer, help me out here. I thought that from watching, from watching Law and Order, you know, if I couldn't afford a lawyer, I had the right to have one appointed for me.
And that meant that the lawyer would just stand behind me at all times.
And anything that ever happened, maybe not in jail, but anything ever happened vis a vis the judiciary, vis a vis the court system, there would be a lawyer present for me. But apparently that's not right. If we're, what we're going to talk about today is whether having a lawyer for the, for the arrestee at the first appearance hearing makes a difference. It must be that it isn't the law that a lawyer is already always there. So can you unpackage that for me?
[00:06:30] Speaker D: Yeah. So there's a couple different ways to unpack that first. And while this is irrelevant to this study, important for people to know that is not represented on Law and Order.
Any civil justice matter, there is no right to counsel at all at any stage, or you are out of luck if you want.
There is no right to counsel. There are free lawyers in some respects, but we can, that's a many other podcasts we can talk through. In this instance, for criminal cases, the Supreme Court has held the US Supreme Court has held that a right to counsel extends to what they call a critical stage and a critical stage of the case.
It is still up in the air whether or not this type of proceeding that we'll focus on in this evaluation is considered a critical stage.
It has not been ruled that it is, but there is some question. There are questions that continue to bubble up in different areas of the country, but thus far, there is no right to counsel at this particular stage of the criminal justice matter. Similarly, another kind of back end stage where there's no right to counsel would be if you're looking for record clearing after you after your criminal justice matter is concluded in whatever way the state allows it to be concluded for record clearing, there's also no right to counsel for those types of proceedings as well.
[00:08:06] Speaker A: Got it.
And just to clarify, the Supreme Court, when we say it's still up in the air, the Supreme Court hasn't ruled one way or the other on whether this first appearance hearing is a critical stage of the criminal prosecution. If it is a criminal, if it is a critical stage, that will trigger the right to counsel.
If it isn't, then it's not there is no right to counsel. We just don't know. Is that correct?
[00:08:29] Speaker D: That's correct. And this issue was there was some activity in the federal courts in Texas on this issue, but it never got to the point of making that determination.
[00:08:44] Speaker A: Getting to the high court. This strikes me, honestly, just as a side comment, as quite odd.
We've been doing first appearance hearings in this country in state courts and in federal courts for decades and decades.
And as we'll find out, many counties in the United States, many jurisdictions, state courts especially, do not have lawyers for arrestees at this first appearance hearing. And yet we still don't have a Supreme Court decision on whether this is a critical stage or not a critical stage. And so this is perhaps one of the places where evidence about whether it makes a difference and what kind of difference could have an immediate impact on, on policy and on constitutional law.
And so with that, George Bethany, tell us, this particular study we're talking about occurs in two counties in Texas.
What are the two counties where this study occurred?
[00:09:38] Speaker C: So this study occurs in two counties in Texas. The first county is Hays county, which is, you know, in basically central to southwest Texas. It's a, it's a city called San Marcos between Austin and San Antonio.
And the population of Hays county is about 200, 240,000. And the second county is Potter county, which is located in the northwest of the state in a, in the city that is the main city of Barter county is Amarillo, Texas, which is basically a city that most people drive through going to, you know, New Mexico or, or mainly Colorado. So it's a city that's kind of busy. It's a county that is busy with lots of travelers. And the population of Potter county is about 120,000, so about almost half of the Hays County's population.
[00:10:37] Speaker A: And prior to this study's initiation, am I correct that neither Hays nor Potter had counsel at first appearance at the first appearance hearing? As a matter of course. In other words, they didn't make a practice of it. Is that correct?
[00:10:51] Speaker C: That's correct.
[00:10:53] Speaker A: And just to clarify that that's for the defense counsel in either county was a prosecutor typically present at the first appearance hearing.
[00:11:01] Speaker C: So in Hays county, the prosecutor was not present, and in Potter county, the prosecutor was not present, but the prosecutor did share recommendations via email with the Magister judge the morning of the first appearance hearing.
[00:11:19] Speaker A: Super. So let's talk about those mechanics. You just began to introduce them of how the first appearance hearing works. Worked before the study and then during the study.
So there's lots of different ways to do this. Sometimes the first appearance hearing is entirely via video conference. Sometimes first appearance hearing is live and in person, and sometimes just as an aside, and this is a complicating factor for the idea of appearance for some states, you make the consequential decisions that in Texas are made at the first appearance hearing. You make them on the papers. There is no live hearing and that complicates any role that counsel could have. Let's put that aside for a second. Let's assume there is a live hearing hearing either via video link or via an in person interaction. How was it done before the study in, say, Hays? We'll start with Hays. How was it done before the study?
[00:12:11] Speaker C: So for Hays county, before the study, first appearance hearing happened once a day, every day, 365 days.
And that typically occurred in the morning, around anywhere between 8 and 10 in the morning. Depends on how many people have been arrested the night before.
By sometimes 6 or 7 in the morning, they, you know, the arraignment officers and the sheriffs and the jail decides on the docket who, you know, the number of defendants who have to be basically arraigned. And once that docket is decided on, they share the information with the judge and the arraignment hearing happens. The judge in Hays county appears via video.
He or she is at the jail typically, but they are not in the same room as the defendant.
And the hearing basically goes through, you know, 5, 10, 20 defendants who have been arrested that day and it concludes and it's done. Now, if you've been arrested, for example, at, you know, two in the, two in the evening, or two in the afternoon, three, four, six, anytime after that, then you have to wait until the next morning to go through your first appearance. In Potter county, it's very similar.
Again, happens once in the morning every day, 365 days of the year, and similar situation, you know, the docket is decided on the magistrate judge basically does the hearing usually anywhere between 9 and, you know, 11 in the morning. Similar timings, and it's just a smaller number because the population in Potter county is less than Hays.
And also the judge appears via video in Potter County.
[00:13:57] Speaker A: Right. And just to clarify, in other jurisdictions, and we can talk about this maybe at the end, in other jurisdictions, they do it differently. In other jurisdictions, it's a live hearing in person, but also they do not do it every day.
Certain jurisdictions, for example, do it only on business days.
And so, for example, if you are arrested, say at noon on a Friday before a Long weekend before a holiday weekend. Then you will remain in jail until you can see the judge on Tuesday, sometimes in the afternoon, because they schedule their, this particular jurisdiction might schedule its, its first appearance hearings in the early afternoon and they don't do weekends and holidays. And that's just the way it is. And so this could potentially have some consequences if you are, you're held incarcerated.
What are key decisions that judges make at first appearance hearings? George, why don't you handle this one as well? What are some key decisions that are made at a first appearance hearing? What's at stake?
[00:15:04] Speaker C: You know, I think three key decisions the judge handles.
You know, the first one is whether there is a probable cause or not. And so the judge reviews the, you know, police affidavit, basically police report, and decides whether they agree with the, you know, with the arrest and that there is a probable cause.
[00:15:27] Speaker A: Super. Let's stop there for just a second. This is a sort of anti totalitarian state.
We won't let the state use the criminal justice system to oppress the population type. Moment. Right. So the idea is we're going to have somebody other than a police officer review to see if the evidence that's available supports the possibility of going forward a charge. Super. So that's the first one. Go on.
[00:15:51] Speaker C: And in some instances it's very rare, the judge does not find probable cause and basically tells the defendant that they are free to walk out of jail.
The second important decision that is is basically the bail amount type and then any release conditions, you know, assigned or linked to that and that, you know, the bail type could include cash or surety where the defendant has to make a payment, a financial payment to be able to be released and the amount.
If a defendant has been arrested on multiple charges, there would be typically a bail amount and a type for each of these charges. And the defendant will have to come up with either the total amount of all the bail amount or use a bond bondsman or a bonds company to basically strike a deal. And typically it's 10% payment for the bonds company.
[00:16:54] Speaker A: Actually, let's stop there for a second too, because this may be unfamiliar to some listeners. We're going to use several acronyms here. What is or, or own recognizance release. What is that? Because that's one option that the judge could choose. Right, Right.
[00:17:07] Speaker C: So the bond type, the bail type could be, you know, cash, surety or any other type that is financial, where the defendant has to pay. But it also, a bail type could be own recognizance, or personal recognizance. Sometimes we refer to it as PR.
[00:17:22] Speaker A: Bail or bond, personal recognizance, PR bond or own recognizance, or those are the same thing. Go on.
[00:17:30] Speaker C: And under those type of bail, the defendant does not have to make a financial payment.
They just have to sign that they will appear on their first court hearing whenever that's scheduled, and they would be released on their own recognizance.
And that's a very important point here because it removes the financial component from basically pre trial release that often is a center issue with being incarcerated.
The other component of this second decision is release conditions.
So besides the bail amount and the bail type, the magister judge often adds conditions. Typically, you know, don't commit another crime, you know, if there is a victim involved, to not interact with the victim or reach out to the victim or be within a certain distance of the victim. Sometimes there is a stay at home between 7pm to 7 in the morning. The list is long. And some of those conditions are restrictive, some of them are not.
And then the last decision ultimately really is basically the judge asks the defendant whether they would like to retain an attorney or seek a court appointed attorney. And this is where an indigency determination occurs, whether at the hearing or whether shortly after.
And at that point, you know, the hearing concludes and the judge moves on to another defendant.
[00:19:07] Speaker A: And just to unpackage just a little bit more for listeners that are unfamiliar with this setting, you mentioned earlier that if the judge does impose a financial obligation on the defendant in order to achieve release.
Right. Then it could be either what you hear this phrase sometime on tv, cash or surety. Right. Okay. So that gives the defendant two options. One is to say if the judge says I'm making this up $2,000, right. Then that means that the defendant could raise $2,000 from somewhere, perhaps a relative lends them money or something. And then the idea is the defendant will give that $2,000 to the court deposited in a bank account. And if they show up with all of their, to all of their hearings, and if they comply with all of the other conditions that you mentioned, such as, you know, not getting rearrested, staying, you know, in their house from 7pm until 7am, whatever it is, drug testing could be one. Right. Checking in periodically could be another one, then they'll get that $2,000 back at the end of the case even if they are convicted. In other words, it's not going to be as though they're going to, they're going to the State is going to keep that $2,000.
It's going to be given back to them even if they're convicted.
Or it could be that they go find a bail bondsman, a surety, in which case they pay the bail bondsman a fee that they never get back. And the bail bondsman posts the $2,000. And you mentioned that the typical fee is 10%. So they'd pay the bail bondsman $200. They never see that $200 again. The bail bondsman pays $2,000 to the court, and then if the defendant misses the court hearing, the bail bondsman has a financial incentive to go find them and try to get them back. And so this becomes the stuff of movies, right, where you have people try movie heroes, quote, unquote, trying to go chase people down. So is that roughly the way it worked in Texas and in these two counties in Potter and Hays?
[00:21:04] Speaker C: Absolutely.
[00:21:05] Speaker A: Yeah. Okay, super. All right. So then you'll hear the phrase cash bond or something like that. Right. And this is what these various terms mean. Okay, super. So then the idea then is that this could be a key decision point because we think that, first of all, incarceration for any length of time has the possibility, we don't know, of disrupting lots of things in an arrestee's life. Extended incarceration might cause more disruption along with potentially other negative consequences, anything from catching communicable diseases, which might be perhaps more easily spread in an enclosed space like a prison system.
Think of the COVID 19 pandemic to loss of a job because you can't show up and work, to loss of custody of children because you can't pick them up from school and take care of them, et cetera, et cetera.
And so this is a fairly comp. This could be, this hearing could be a fairly consequential moment in a defendant's life. And in addition, in the case, because if you're incarcerated, you can't go investigate the circumstances of your arrest and find witnesses and find evidence that you could use in your defense. Defense.
So the, the, the, the thought here is that having a, having a lawyer to advocate for you might help with the decisions that the magistrate or the judge or the commissioner, whatever they're called, the key judicial officer might make these hearings. They sound like they are, you know, with that much at stake and, you know, with all these different things to do, you know, it seems like they might, wow, each one might go on, you know, what, an hour or two, how much does each one typically last.
[00:22:41] Speaker C: How long each hearing or each interaction with the defendant.
[00:22:45] Speaker A: Each. Each. Per defendant. How long does the. Does the magistrate or the. Or the judge spend on each defendant?
[00:22:52] Speaker C: Oh, it's much quicker than. Than that. It's. It's few minutes at. At most, you know, sometimes even faster than that. And so, yeah, typically the hearing takes about an hour for everyone.
[00:23:06] Speaker A: For everyone that's there that day. An hour or two for everyone that's there that day. So typical interaction. Typical. These are sort of three to five minute hearings, quote, unquote.
[00:23:15] Speaker C: Is that right?
[00:23:16] Speaker A: Yeah, yeah, three to five. So it's accurate. And we'll see that. We've got some data from this study about how long it took per defendant that included the shuffling from one defendant to another, getting one person in place, et cetera. So the amount of time that. With the amount of times that we'll talk about that were.
They weren't all just the defendant judge interaction or the colloquy or the hearing itself. Right. There was a lot of logistics going on. So really around. Typical would be around three to five minutes.
Super. Okay, so we're in Hays and we're in Potter and did. And neither of these two counties prior to the study had routine defense counsel before. At the first appearance hearing. Neither of them had prosecutors appearing at the hearing either. And in one of the counties, it sounds like in Hays, it was not even typical for the prosecutor to communicate a recommendation to the judge beforehand. And Potter it was, but that was done electronically. So does that set the stage so far?
[00:24:20] Speaker C: It does.
[00:24:21] Speaker A: Super. Okay. And so then George, staying with you for just a minute, walk us forward then. How did this study come about?
How did we find Hayes and Potter to say, hey, let's do a study, right. About whether council at first appearance would make. It would make a difference.
[00:24:40] Speaker C: And that's a great question. So, you know, it's basically a process where we did not actually start with Hays and Potter County. We started with conversations with multiple agencies and multiple jurisdictions.
First, you know, we work closely with the Indigent Defense Commission, the Texas Indigent Defense Commission, tidc, that supports indigenous defense across the state. And they interact with multiple jurisdictions. And often those jurisdictions will kind of, you know, suggest or reach out to say, you know, we have some of the issues, you know, a high jail population or increasing jail population, or we're struggling with some of these things. We would like to study this, evaluate this program. And some of those jurisdictions often have champions within.
And those champions could be, you know, the judiciary, some of the judges, it could be a commissioner. So the champion could come from a different part of the county. And they are often interested in, you know, pursuing new things to kind of improve some of the outcomes or some of the things that they are seeing in the county.
So during that process, we've talked to, I would say, six or seven different jurisdictions about studying counselor at first appearance in the hope that it will lower jail population because allows the magistrate judge a lot more information and a better decision at magistration or the first appearance of first hearing.
In Texas, the first appearance or first hearing is actually known as magistration.
So we ended up with five, six, seven, I believe, seven counties that we interact with at the initial stages and ended up with working with Hays and Potter County. In Hays county, the main champion was a commissioner, two commissioners actually, who were trying to identify ways to kind of become more efficient, streamline first appearance and lowered child population.
In Potter County. We, you know, met with one of the main judges at a conference in Austin. And, you know, he.
We had an interaction with him. He was basically worried about some of the practices and some of the things that are happening in Potter county, and he was willing to push for a study in that direction. And we worked with him and he was a main champion for us. He was a district judge and interacted with all the stakeholders and brought everybody on board. And we ended up launching with Hays and Potter County.
[00:27:21] Speaker A: Terrific. And we're recording this in the middle of 2026. What year are we talking about that. When these. When these interactions that you described happened? How long ago was that?
[00:27:33] Speaker C: So 2025. Right.
[00:27:35] Speaker A: Excuse me, 2025. Sorry. I think about this school year. Right, the school year. Right. In the fiscal year, anyway. 2025. Pardon me. Yes, we're in the middle of 2025.
[00:27:44] Speaker C: Yeah, happened about five, five to six years ago.
And our initial proposal to the funder, and I know we'll have a conversation about the funders in a second.
Actually, the first proposal, we listed two other counties, and they were not Hayes and Powder County. There were two other counties that ended up dropping out for different reasons.
So those interaction interactions were five, six years ago, about a year or two before launching the study.
And they take time.
Counties and stakeholders have questions, and you want to, you know, make sure you address those questions and either visit them in person or virtually and have kind of continuous conversations to make sure we have support from all stakeholders at the county.
[00:28:30] Speaker A: Terrific. Terrific. Okay, so again, just giving. Giving folks an idea of how long these field operations typically take. Where in 2025, these initial conversations took place pre. Pandemic. Pre. The COVID 19 pandemic. Right. So this is sort of 2019ish that these. That these conversations are going on to get the study kicked off. Okay. And so then fast forward a bunch of conversations and a lot of logistical.
And Renee, why don't we go back to you here, because I know you were heavily involved in setting up the field operation. Fast forward.
Tell us what we ended up with in terms of the field operation. How was.
What was the intervention, you know, how was the randomization conducted, etc?
[00:29:13] Speaker D: Yeah, the intervention was to. For some defendants to have counsel at first appearance and some defendants not to have counsel at first appearance. So that would be business as usual. Right.
Because council at first appearance was. Did not exist in either of these two counties prior to this.
We worked with the local bar associations to make sure that there was defense counsel available. Both.
[00:29:39] Speaker A: Why don't you just use the public defender service?
[00:29:42] Speaker D: Neither county had a public defender's office.
[00:29:45] Speaker A: Oh, I thought those were everywhere. Now you're saying in Texas they don't actually routinely have them.
[00:29:49] Speaker D: Right, That's a very good point. That it's not just Texas that does not routinely have public defenders offices. That is, it is across the country. You may have a public defender's office, you may have contract attorneys that are taking the.
What you would consider a public defense style case, an indigent defense case. Sometimes you have appointments, and so there's local attorneys usually that agree to take appointments, and the court will just appoint an attorney when one is needed for an indigent defense defendant.
So in this case, we were randomly assigning whether or not someone received defense counsel based on the day of the week. And so George and Bethany developed a randomization protocol that randomized the days that counsel would be present for all indigent defendants that day. And so it wasn't like we did every Monday, Wednesday, Friday, we had council. Every Tuesday, Thursday, Saturday, we did not.
George and Bethany worked out a schedule where the days of the week were random.
So only the only individuals that knew when counsel would be present were the counsel themselves and the court and the prosecutor's offices.
So if a defendant was engaged in their first appearance on a day where counsel was present, they would receive the benefit of that counsel if they were hearing, having their first appearance hearing on a day where counsel was not there, it'd be business as usual, and the defendant would go through the first appearance hearing without the benefit of counsel.
[00:31:39] Speaker A: Why didn't we just randomize by arrestee, you know, or by case? Why not? Just do it that way.
[00:31:45] Speaker D: Yeah. I mean, we would have loved to do it that way, I think, but. But logistically, that was too much of a challenge for the courts. Right.
And for the attorneys that were a part of this project. Right. So by randomizing by day, by doing the random assignment by day, it gave the attorneys and the court some ability to prepare.
And attorneys especially needed to know that they needed to be in court. Otherwise we would need to have, frankly, have just attorneys available to take a case if one was randomly assigned on any particular day. And then some clients would have counsel and some clients would not have counsel on those days. I think this was truly a logistics issue. I think our preference is to randomize at the smallest component as possible, which would be the individual.
[00:32:39] Speaker A: Right. And also, I think, am I correct? It would have been more expensive to have had to pay for an attorney every single day and then have them represent only in half the cases. We hear you could lower the cost by paying for the attorney on some of the days and not the others.
[00:32:54] Speaker D: Yeah, that's true. I mean, and payment.
And George will, I'm sure, talk about this, or you can read about it in our final reports, but payment is an issue. And that was incorporated into this evaluation where we were hoping to pay attorneys or attorney. We were hoping to work with the court to pay attorneys at at least a going rate, but likely, but a little bit more, I think, than they were being paid for on their contract work in this case.
[00:33:26] Speaker A: Super. And George, you mentioned the funder, who was the funder in this case and for this study.
[00:33:31] Speaker C: So for the, for the study, the main funder was Arnold Ventures that funded the. The research team's time and, you know, logistics in any support for the county. But it was also supported by a grant from the Indigent Defense Commission, the Texas Indigent Defense Commission that funded the time for the attorney.
[00:33:54] Speaker A: So.
[00:33:54] Speaker C: Paid for the attorneys to be present.
[00:33:56] Speaker A: Super. And so we have a random subset of days. Then over how long, how long, how long did the study have, quote, unquote, enrollment? In other words, how long did the. Where did the randomization go on?
[00:34:08] Speaker C: And I want to actually add that we're very grateful for the funder's support.
[00:34:11] Speaker A: Yes, absolutely. Absolutely.
[00:34:13] Speaker C: And obviously for collaborating with both of you, Jim and Renee, the time, you know, we, we, you know, we did a power analysis to kind of get a sense of how. How long.
[00:34:23] Speaker A: Pause one second. What's a power analysis?
[00:34:26] Speaker C: A power analysis is a, you know, is basically if whenever you want to do an experiment, you can Obviously randomize for the whole population for the whole time, but that becomes very expensive and time consuming.
So you want to identify the smallest number of sample needed to be able to detect an impact of whatever intervention you're looking at. That allows you to basically do a trade off in the sense that you are in a position to detect an impact of the intervention with a good enough likelihood of detecting that impact if it exists, relative to basically conducting a large experiment with everyone on board, which basically becomes prohibitively expensive. That's what a power analysis so allows us to know what is the needed minimum sample number of individuals in our study to allow us to detect an impact.
So based on our power analysis and the sample and the expected number of individuals who would be arrested, we use some of the historical data from both counties.
We thought about one full year of randomization.
So the study basically took about a full year. We added one week for both counties at the start of the randomization. So we can make sure we clear any potential logistical issues that may arise once you launch a study. But both studies went very well, and we are very grateful also for Hays and Parlor county to be great field partners.
[00:36:07] Speaker A: Super, super.
And we just mentioned the word data, which, Bethany, means that we're about to hear from you for a whole lot. So getting ready here to tell us to walk us through what we found and what data you had to analyze before then, just to set the stage, then what we've got is we've got certain days that are chosen for around a year randomized, some to cafa, counsel at first appearance, and some to no cafa, meaning business as usual, because this was the practice that existed prior to the study and that would have gone on without the study and those the entire day. And then the idea is that we're going to take those days and say, okay, those days are the same.
Defendants that appeared on those days are the same in all ways statistically, except for the fact that some had cafn, some did not. And therefore, when we compare outcomes which, which, Bethany, you're about to tell us about, we can assume that any differences we observe in the outcomes, we can safely conclude any differences we see in the outcomes are due to cafa. So, Bethany, you spent months, almost years cleaning, obtaining the data, cleaning, cleaning the data, trying to organize it, and then running models. So walk us through here. What sorts of, what types of information did you obtain and from whom did you obtain the information?
[00:37:30] Speaker B: So we pulled our information from booking sheets at the jail, so that would have all the defendant information. Birth date, arresting Address things of that nature. And then also the magistrate warnings which have, if they have a court appointed attorney or not, and then the bond sheets that will tell, that will tell the bail amount and the type of.
[00:37:57] Speaker A: Bail, and then that gives the outcomes of the magistrate's decisions, in other words.
[00:38:03] Speaker B: And then the bail conditions sheets that will list the conditions that they have.
[00:38:10] Speaker A: Super. And were all of these, all of the, all of these, all this information, was it all available in one computer system or did you have to go to, did you have to, for instance, merge data from the jail to data from the court?
[00:38:25] Speaker B: Yes, we have to merge all of that data that I just talked about that we pulled pretty much from the jail in documents. They were scanned every day and sent over to us.
And then we did the data collection on that and then we merged it with the court data later on.
[00:38:42] Speaker A: Got it. And curious, was there a unique numerical identifier so that you could just use some sort of join or match command for the data from the jail to the data from the court system?
[00:38:55] Speaker B: So they always give a jail ID for that person and also typically a charge ID and a booking id.
Typically you have to merge off of booking ID because going from jail data to court data, you go from charges to cases.
And so it's harder to merge at that point. So you usually do the booking dates.
[00:39:24] Speaker A: So we'll stop there. Not to, just to avoid getting too deep into the weeds, but this is giving everyone a taste of the, of just how hard it is to do this work.
It is not simply a matter of, oh, we'll just go pull the records. You know, they, you know, they're in electronic form. We'll just get a dump of an existing data set and then we can, we can apply models to it. It actually turns out to be immensely complicated to merge data from different sources that aren't designed to talk to each other and don't interact with each other. And then you have to spend, as I mentioned, and Bethany, as you know better than anybody, weeks, months, cleaning it and organizing it and then finding out which things don't make any sense and then trying to chase those down and understand them, et cetera. So you spent all that time doing that and then you did some basic comparisons and ran some models and basically keeping the language for lawyers and for lay people.
What basic types of models did you run?
[00:40:22] Speaker C: So I'm going to jump in here and in a randomized control trial or in an experiment, if done correctly and the randomization was successful, you can literally just compare outcomes of the Two groups, the Kapha group and the no Kapha group.
And the difference in outcomes will be attributed to the presence of Kapha relative to the non presence of Kapha.
However, researchers typically also augment those basic comparison of outcomes and averages with multivariate regressions. And that allows the researchers to control for other covariates in the hope of increasing the precisions of the estimates.
[00:41:14] Speaker A: And you just mentioned the term precision, George, let's actually stop and define that. What does precision mean?
[00:41:19] Speaker C: So precision means to be able to detect the impact that exists and detect it with the least amount of variation so that you have the smallest basically amount of variation. So you're looking at, when you run something like this, you have multiple specifications in the hope of most of these specifications kind of converge to a single impact.
That impact is within range, is not, doesn't vary too much between different specifications. And that's really what we mean by that.
[00:41:56] Speaker A: And so, for what it's worth, many statisticians, including me, vastly prefer not to use these models.
And we use them only because, just to say, oh, if you believe the model, then this would happen. We prefer to do the just basic comparison of Kapha to no Kapha and see what that has. We did that here. And then we also ran the models that you mentioned, the linear regression models that you, that you mentioned. Bethany. Okay, and so let's go then. First of all, we did some preliminary analysis to see if the Kapha group looked a lot like the no Kapha group, which if the randomization should produce based on what we can, what we can see, they look similar to each other. But you always check, right one, always, the scientists always check in this situation just to see if the randomization appeared to do its work. And we can short circuit that discussion by basically saying it did. It looked like it worked. It looked like the CAFA and the no CAFE groups were pretty similar. Walk us through here.
One of the key outcomes that we were attempting to study and that we anticipated, hypothesized or hoped would be that CAFA would affect was the bond type and the bond amount.
And so what, what did we find here? Were there, were there, were there effects on the bond type and the bond amount as a result of having CAFA versus no cafa?
[00:43:22] Speaker C: So as we discussed earlier, we looked at several outcomes and you know, bail amount, bail type.
And the main argument here is that having a counsel at first appearance present, they advocate on behalf of the defendant to the magister judge, and during the time of the study, the magistrate judge in Texas had only access to the probable cause or the police report. That's the only piece of information they had.
They did not have access to criminal history. They did not have access to information about the defendant, whether they are, you know, from a local, from the local community, whether they can afford to make the payment for the bail, whether they have a job or not, whether they have defend dependence, depending on them and so on, so forth. The only thing they had access to is a piece of paper by the police that describes basically the. The crime and, and the arrest.
With that in mind, the counselor's first appearance spent about 8 to 10 minutes on average with the defendant prior to the magistration, prior to the first hearing. And based on that information, based on that conference or meeting with the defendant, they gathered information on the defendant that they could use to advocate in front of the judge.
That, you know, information included, you know, is, is this your first arrest? Do you have any other arrests or pending cases?
Do you have any mental or physical health circumstances? Do you have a job? Do you live in this community? Or are you driving by, you know, information that the. The attorney could present to the judge and allow the judge to have a bit more information to make a better decision?
With that in mind, you know, we found that, you know, council at first appearance does lower the average amount of.
[00:45:27] Speaker A: Bail.
[00:45:29] Speaker C: Between both counties between Hays and Potter County.
And we did find that the council at first appearance does affect the type of the bail, mainly in Potter county, not necessarily in Hays County.
And that's. That finding is, as you mentioned, Jim, is based on comparing outcomes or an averages simply by looking at the groups kapha and no kapha and also based on different specifications in the multivariate regressions.
[00:46:00] Speaker A: Super. So let's unpackage that a little bit. There was a finding, at least to my eyes. It wasn't huge, but it's there and it's statistically significant.
So let's start with what you mentioned, George. The type of bond assigned here, we're talking about those or own recognizance or personal recognizance, PR bonds. The PR bonds versus not the PR bonds.
In Hays, that percentage remained basically the same across the two groups at around a third. Is that accurate?
[00:46:36] Speaker C: Yeah, absolutely.
[00:46:37] Speaker A: Right. And so basically it's a third in the CAFA group and it's a third in the no CAFA group. In Potter, the fraction of defendants receiving or release is much lower and the CAFA increased it by a couple of percentage points.
Is that a fair summary?
[00:46:59] Speaker C: Yes, exactly.
[00:47:00] Speaker A: So something like. So the no CAFA mean here is around 0.13. So around 13% of defendants are receiving PR bonds, versus around 15 to 16. So 0.156. So right around 15 and a half percent.
And so that's statistically significant. We had decent sample sizes here. In Potter, it's around 1500 in each group. In Hays, it's around 2500, 2600 in each group. So we had decent population sizes here. And those are statistically significant. They're not enormous effects, but they're there in Potter, not in Hays. And then in both instances, we saw a general push of bond amounts from the set that were greater than 10,000 down below 10,000, but not in any one particular category, not in any one particular bin below 10,000. So, Bethany, I believe you been the data bin. The bond amounts from $1 to 500, 500 to 1000, 1000 to 2000, 2000 to 5, 5000 to 10.
None of those bins showed up as seeing huge movement on their own. But we did see statistically significant differences at greater than 10,000 versus not greater than 10,000 in both Hays and Potter.
So is that. Again, Bethany, I'll go to you. Does that seem like a fair summary so far? Anything you would add to that summary?
[00:48:34] Speaker D: No.
[00:48:34] Speaker B: That's a good summary.
[00:48:35] Speaker A: Yeah. So this strikes me as raising a question right there, because that's probably the bond amount. The bond decision is probably the primary mechanism at which we think that counsel of first appearance could affect the course of the. Of the defendant's life. It could affect the course of the case. That's. That's where we're thinking most of the action would take place.
Why would there be this effect in.
In Potter, but not Hayes? And let me. George, I ask you. Bethany, ask you, Renee, but let's start with George. George, do you have any thoughts about why there would be an effect in one or not the other? Or is this just one of those things that could be a statistical anomaly, we're not real sure, or something we don't know about yet?
[00:49:22] Speaker C: You know, this is an interesting question that we as a research team kind of thought about and tried to explore, you know, some of the things that we looked at. Could it be different types of charges and offenses that we, you know, we saw in Potter county versus Hays?
You know, could it be different types of defendants?
You know, we cannot really say with a certainty what is the, you know, main, main reason behind this different outcome?
However, in Hays County, a prosecutor was present whenever counselor's first appearance, was whenever a Defense counsel was present.
You know, Renee and Bethany and myself, we observed almost 20 magistration hearings and first appearance in both counties.
And we saw a lot of more interaction in Hays county between the prosecutor, the defense counsel and the judge versus in Broward county, the defense counsel present their case and the judge makes a decision. It's not clear if, you know, if the prosecutor made a difference.
It's something that our study cannot answer that question. You will need to randomize also whether the prosecutor was present or not. But I mean, those are the differences that we saw in terms of process that could potentially explain this.
[00:50:41] Speaker A: Renee, do you have anything that you wanted to add there? Was there something, for instance, about the practices of the court or the magistrate that might have made a difference?
[00:50:52] Speaker D: The magistrate judge in Potter county was very seasoned.
That judge that we worked with, who primarily heard these cases with some, they, they had some backups as well. But this judge primarily heard these, these hearings.
This was their assignment.
And I, I wonder, I wonder if being so seasoned actually worked against the defendants, perhaps in, in his, in a historic perspective. So just going through, going through proceedings by muscle memory rather than providing individual attention to individual cases.
And so this disruption in this, by implementing this program caused that judge to think a little bit more about each case when counsel was present, which may explain why Potter county showed the change. It showed right. And the judges in Hays county weren't as seasoned, although they were, you know, good judges. They just weren't as seasoned.
[00:52:14] Speaker A: Anything else you would mention, Renee?
[00:52:17] Speaker D: I do think Potter county historically had high bond amounts generally. And so it might have been easier to see, see a change if a change existed because those bonds amounts were high historically. And George, I think we kind of anecdotally noticed the charging practices in Potter were such that defendants were charged with more serious offenses than Hayes generally.
Again, historic perspective and perhaps anecdotal.
[00:52:53] Speaker A: And you can certainly see the higher, the more onerous bond terms assigned in the data. You know, again, in Potter, only about a third as many defendants get PR bonds. So it's. So it's about three times as likely in Hays to get a PR bond as compared to Potter.
Those statistics vary wildly from jurisdiction to jurisdiction. So in Dane County, Wisconsin, where we did some work and that we'll be talking about on proof over precedent, the amount of folks getting the equivalent of a PR bond push 2/3, push 2/3 to 70%. So double the amount in Potter. And again, Potter was three times the amount in haze. So you can do some math and realize that these are very Very large variations.
Super. So there is an effect. It's not enormous. There is an effect on the bond amount and the bond types. Was there an effect? The other big thing that folks are hoping the council might be able to change by being present is the number of days of predisposition incarceration. We're hoping that having counsel there will allow is a means of safely decarcerating, allow the judge to release through the decisions to allow more people to obtain predisposition release sooner or spend less time in jail. Did we see any effects on that outcome?
[00:54:16] Speaker C: Again, you know, in Hays county, we did not see any statistically significant differences in the days to release.
You know, they are practically identical across both groups. The CAFA group and the no CAFA group. In Potter county, we did see a difference.
And that difference is, you know, anywhere between 4 to 6 percentage points. Those defendants who were magistrated on the days that there was a defense counsel were more likely to get out.
Well, they were more likely to get out on, you know, from jail and faster. I guess they were more likely to get out from jail faster than those who did not see a counsel of first appearance. And that could be because, you know, that could be a consequence of lowering the bond amount and changing the bail amount and then changing the bail type.
So there's some difference between both counties.
Another reason could be because there is some of the interactions that we saw in Hays county are very different. Renee mentioned some of the experience of the judges. I mean, those are interesting differences that are unique to the jurisdiction.
And this kind of brings the question to the forefront that we need to build more evidence across different jurisdictions to understand how consular basically impact those outcomes in different settings.
[00:55:52] Speaker A: And let me just clarify. This is the time from the magistration hearing, the first appearance magistration in Texas, the first appearance hearing, to the first release, Is that correct? Or was it the time that the entirety of the predisposition period. The reason those are separate is because people can get rearrested or they can miss a court hearing and be pulled and be. And be pulled back into incarceration because they missed a court hearing. Was it the time to the first release or was it the amount of time spent in jail during the entirety of the predisposition period?
[00:56:29] Speaker C: It was a tantal for the first release.
[00:56:32] Speaker A: And so just as a preview of some other things that will be coming up on proof over precedent, it turns out from some other studies that we're doing a depressing fact about trying to affect what happens in the pre trial period in A criminal justice case is that people frequently are rearrested or pulled back into jail because they missed a court appearance or violated a term of condition of release. It's very difficult to reduce the number of days of predisposition, incarceration, free trial, overall, even if you can get them out faster.
And so this is just to clarify, this is a mild effect that we saw in one of the two counties, but not the other on the time to first appearance.
And then, George, why don't you quickly walk us through the other secondary outcomes that we looked at because am I correct that we saw basically no change in all of these other secondary outcomes? Is that accurate?
[00:57:27] Speaker C: Yeah, that's accurate. And you know, for the, for the audience, I mean, the secondary outcomes, the way we basically identify those are outcomes that occur after the magistration day or date or the first hearing. So those could be, you know, failure to appear, could be, you know, rearrest or recidivism, could be disposition, whether it's type, whether it's, you know, time to disposition.
We looked at those outcomes in both Hays and Potter county as much as the data allowed us to. In Potter county, we could not, for example, observe failure to appear just because of the data quality. And we saw no difference between all of these outcomes for the groups of with CAFA and the groups without cafa. And these, these could be expected findings simply because, you know, an intervention that happened for about 8, 9, 10 minutes in terms of the conference meeting between the attorney and the defendant may not really be expected to have an income, an impact six months down the road or eight months down the road for a disposition type or for sentencing, and so on and so forth.
[00:58:41] Speaker A: So this in a nutshell, then, findings of this study are a mild effect in both counties on the bond amounts and bond types, a mild effect in one of the counties on the number of days to predisposition, and then no effect on anything else. Does that sum it up in a nutshell? Yes.
Yeah.
Which. So now, and I'd like to hear from each of you, Renee, why don't we start with you? What do we make of this? What do we take away from it? I mean, always, researchers are always going to call for more, more study because, of course, we're never satisfied with the amount of empirical evidence here. The evidence is sort of mixed. And so we have another reason to call for more study because we're actually not quite sure what to make of this. And the only way that we'll know what factors could contribute to whether council is effective has effects or not is by doing studies in multiple jurisdictions that have different setups and trying to associate the different setups with, with what size effects we see. So we, you know, we have the easy, easy message here that we need more research. That's always, that's always true. We also have this lesson, George, that you mentioned earlier, and this one is in the category of as always, and this is one of the themes of the Access Justice Lab and proof of repress that be careful what you wish for, because as you mentioned, when you assign, when you, when you produce or when you implement.
Counselor, first appearance for the defense.
What you may do and what we did do and what did happen in these jurisdictions is all of a sudden we got a prosecutor to show up at the hearings at certain times when we didn't have it before.
Right.
In neither jurisdiction was a prosecutor typically present. At least in one of the jurisdictions, prosecutors made sure to be present when the defense counsel was present. And so you have to be careful about whether you want no lawyers or two lawyers as opposed to just one lawyer, which is what you may think that you're intervening is the nature of your intervention. It's just one lawyer, but that may cause another one to show up. But Renee, why don't you we start with you. What other, what other takeaway would you, would you, would you provide from this, from this evidence in this study?
[01:00:56] Speaker D: I'll just start with as, as a lawyer, I don't see a problem with having more lawyers than you are.
[01:01:03] Speaker A: Of course. Right. That may be the right thing to do. I'm just saying, you know, for some people who are, for some people who think counselor, first appearance is the answer to get everybody out of jail quickly. Right. That isn't what we saw. And it also, you know, it again, doesn't automatically produce this, you know, this, this, this change the nature of the proceedings such that the defendant gets to talk about whatever they want to talk about. Yeah, go on.
[01:01:24] Speaker D: Yeah. I think, you know, obviously we do need more study. And I think the nature of these proceedings is such that there's a lot of discretion from the bench. Right. And we're hearing a lot of judges are getting a lot of information that they need to weigh in a very short period of time.
And maybe this goes back to the conversations we've had in other episodes where we talk about kind of the decision makers power and are. What we're really trying to do here, and I think it be should true, is affect change in decision making. And that's really hard. And so this isn't and we're specifically trying to affect change in decision making from a professional design to make decisions. And so they also hold a lot of weight with their own professional judgment, as does the community feel like their professional judgment is somehow heightened beyond others.
And maybe that that may or may not be true, but also trying to change that practice of. And that professional judgment may be harder than we think. And so for me, this study highlights, among many other things, highlights the kind of inertia of the justice system a bit.
[01:02:54] Speaker C: So, you know, Bethany and I were not lawyers. We are economists. And economists study, you know, human behavior and decision making and the impact on society, you know, under this circumstances.
For the consulate first appearance, you know, we.
A component of the study is that we also, you know, observed first appearances, but also interviewed and talked to the stakeholders involved. And it was interesting to see some of the judges and the attorneys got to know each other better throughout the study. And they got to basically know what information each one is looking for or can provide.
And so we saw some of that changes happening basically throughout. Now, ultimately we found out that, you know, the Council of first appearance is not really the solution to all potential problems in jail population, but it did allow for the judges to feel more informed when they make a decision, a decision that is very critical for the defendant, but also for the county because it has cost implications and also allowed the county to have a conversation within how to set up the first appearance and the magistration hearing with a prosecutor, without a prosecutor, in person, virtual, and so on, so forth. We're happy to say that Potter county decided to actually keep the program and launch it on January 10, 2023, after they set up the public defender office. And the public defender office actually represents now all defendants at magistration and offers. Offers counsel at first appearance.
In Hayes county, the commissioners were very supportive of launching the program, but they're working through multiple different kind of logistical issues. For instance, they actually added more first appearance setting. It's not just one day, one time a day anymore. It's multiple times a day. And they also set up a volley defender office. So they were working through some of that. And we expect in the near future that perhaps they would seriously look at implementing consular first appearance for everyone.
[01:05:13] Speaker A: Terrific.
I think that's where we'll leave it off. Thank you so much to all three of you for participating in this. And of course, we'll hope that we can produce the more research that we've all called for, that we always called for. But we think there may be a real, you know, an unusual reason here for or we're needing some more. We hope to be involved in it. Or if anyone else turns out to produce it, then we will hope they'll join us for a podcast. So thank you so much to Bethany, to George, and to Renee once again for doing this episode of Proof Over Precedent. Everyone have a great day.
[01:05:48] Speaker C: Thank you.
[01:05:49] Speaker D: Thank you.
[01:05:50] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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[01:06:15] Speaker D: So under the current dangerousness standard for commitment, access to care is compromised from for non dangerous individuals who need but are refusing treatment.
So this is interesting and really sad when you think about the fact that it forces relatives to watch their loved ones go through like progressive stages of psychiatric decompensation before they're allowed to get them any help.
