Eighth Circuit probes right to counsel in Arkansas bail hearings

(CN) — In Arkansas, state judges like Siloam Springs District Court Judge A.J. Anglin aren’t required to appoint counsel to indigent criminal defendants that appear before them for their bail hearings — until a federal judge ruled in 2024 that such hearings constitute a “critical stage” of criminal proceedings and mandated Anglin must appoint counsel.

Before a U.S. Court of Appeals for the Eighth Circuit panel Thursday, Anglin fought against a permanent injunction ordering he appoint counsel, arguing that Arkansas bail hearings are non-adversarial, lack prosecutors, evidence presentation or trial-like confrontation, and that bail can be revisited later with counsel.

Arkansas Senior Assistant Attorney General M. Erica Crouse cited Supreme Court precedents to assert that these initial determinations are not outcome-determinative.

“This case is about whether a criminal defendant in Arkansas has a right to counsel during an initial bail determination,” Crouse said. “Arkansas’ answer is no, but the court need not reach that question, because plaintiffs lack standing, and without standing, they cannot represent a class of pretrial detainees, and even if the court reaches the merits, the district court erred [in ruling bail] hearings are not a critical stage, and reversal is independently required because judicial immunity bars an injunction entered here.”

Abigail Farella and Logan W. Murphy sued Anglin in 2022, claiming a Sixth Amendment right to counsel at these initial bail determinations. U.S. District Judge Timothy L. Brooks held in 2024 that bail hearings under the Arkansas Rules of Criminal Procedure — where judges like Anglin set bail shortly after arrest — trigger the right to counsel because they can effectively determine pretrial detention, risking self-incrimination and influencing case outcomes.

Though Crouse focused heavily on standing — arguing the plaintiffs presented only past injuries from uncounseled hearings, with no imminent threat of recurrence — the panel pressed her on why opposition to prosecution bond recommendations does not make the hearings adversarial and if the plaintiffs were provided fair trial rights.

Crouse responded that the hearings remain non-adversarial despite the prosecution’s limited input — a single-sentence bond recommendation that Anglin is not required to follow.

The panel included U.S. Circuit Judges Raymond W. Gruender and Bobby Ed Shepherd, George W. Bush appointees, along with U.S. Circuit Judge L. Steven Grasz, a Donald Trump appointee.

Crouse also emphasized the informal, non-trial-like nature, the absence of prosecutors during the core proceeding, no cross-examination, no formal evidence presentation, and the judge’s practice of reminding defendants of their right to remain silent rather than allowing adversarial dispute.

For the plaintiffs, attorney Frank Cody Kahoe III countered that the lower court’s ruling aligns with Supreme Court and Eighth Circuit precedents where preliminary hearings were deemed “critical stages” due to their potential to impair defenses.

Kahoe argued that bail hearings involve weighing factors like case strength and conviction likelihood, creating risks without counsel, and that history confirms such proceedings as adversarial. Kahoe also dismissed Anglin’s procedural objections as forfeited or meritless, noting the injunction’s narrow scope.

“The state’s position in this case is that a criminal defendant who has just spent at least one night in jail, who has no formal legal training, who’s just been informed [of] the charges against her, who knows nothing about the Arkansas Rules of Criminal Procedure, knows nothing about the factors relative to bail determination and pretrial release, and who has just been admonished of her right to remain silent can be required to stand alone against the state before a court without counsel while that court determines if she can be deprived of her liberty for the duration of her case,” Kahoe said.

Addressing standing, Kahoe argued the plaintiffs suffered ongoing injury at filing, as they were detained, and relief was redressable via a new hearing with counsel.

On self-incrimination risks, Kahoe noted rules require inquiring into factors only defendants can provide, creating “a significant risk that defendants will incriminate themselves.”

Anglin “has to routinely remind people that they have the right to remain silent,” Kahoe noted.

Attorney Pamela R. Metzger, representing Deason Criminal Justice Reform Center, which intervened in the case, highlighted class impacts with examples. One pregnant woman was forced to deliver a baby behind bars after her bail was set too high for release and another man saw his charge upgraded from a misdemeanor to a felony at a bail hearing, which went unopposed without counsel.

“That’s a strategic legal decision made by the organized forces of the state,” Metzger argued, amplifying detention’s “devastating impact on liberty … That’s enough time to lose your job, to lose your home.”

Clarifying terminology, one judge asked if the bail hearing equates to the pretrial release inquiry or first appearance under Arkansas rules. Crouse confirmed they are “one and the same,” involving informing defendants of charges, rights, and bail setting, but conducted informally.

The panel said a decision would be rendered in due course.

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