SCOTUS Blocked Shackles in Court. What About Jail Cell Hearings in Austin?

During a bail hearing, a man looks through the meal tray slot in his cell door to the Zoom camera (Screenshot via Travis County Courts / Youtube [Edited by Zeke Barbaro])

Court proceedings with defendants in locked cells are the norm in Russia.

Courtroom cages are also standard in Egypt and Iraq, and in rare cases, it happens in Western European democracies like France and Italy.

The U.S. and the International Criminal Court in the Netherlands have long eschewed caging defendants during court hearings, but Americans have sued over other kinds of courtroom restraints – shackles. Now, they’re generally forbidden in court, unless absolutely necessary. More than 50 years ago, the U.S. Supreme Court decided that the use of shackles at trial is at odds with the presumption of innocence. The Court’s reasoning about shackles is three-pronged: the sight of them causes bias, they undermine the “dignity and decorum” of the courtroom, and they make it harder for defendants to consult counsel.

So what about hearings conducted with defendants in jail cells?

Initial bail hearings, called “magistration,” don’t look the same nationwide and, in many states, they happen in courtrooms. But in Travis County, some are conducted via Zoom with cameras pointed toward defendants who are inside jail cells. From January to March, the ACLU observed more than 600 bail hearings, and found that “dozens” happened with the defendant in a jail cell.

SCOTUS hasn’t weighed in on this particular issue. Because bail hearings happen pretrial, they’re in a Constitutional gray area. Does your right to counsel kick in during an initial bail hearing? SCOTUS hasn’t decided on that issue, either.

A new ACLU lawsuit against Travis County addresses these early bail hearings, claiming that depriving defendants of defense attorneys at this stage is unconstitutional. This suit doesn’t focus on jail cell proceedings, but ACLU attorneys took note of them in a report published just before the lawsuit dropped.

“Unsurprisingly, judges have trouble seeing and hearing through the tray slot,” ACLU’s Trisha Trigilio told the Chronicle. “This is the epitome of empty formality. It's plain that no one regards this proceeding as a meaningful chance for the judge to consider release. Attorneys would change that.”

Jenia I. Turner, a criminal law professor at SMU Dedman Law in Dallas, says aside from the question of whether jail cell hearings violate the presumption of innocence, the judiciary hasn’t ironed out whether a defendant has a Due Process right to be physically present at their magistration hearing. Virtual hearings are more common after the pandemic, but they’ve been in a legal gray area for years. “It is a question that the Supreme Court has not addressed,” Turner said. “I think there is a case to be made that appearing remotely can prejudice the magistrate’s bail decision, especially if the defendant is appearing from a jail cell.”

She points to a study in Chicago, which found that judges set bail amounts higher for defendants who appeared remotely compared to those they saw in person.

Turning the Camera Off

Not all jail cell bail hearings are recorded for public record, so we can’t generalize about what they look like. Magistrates told us that people with mental health issues should get privacy under a federal law that protects patient privacy (called HIPAA, the Health Insurance Portability and Accountability Act). Defendants also have a right to a public trial.

The Texas Tribune and Caldwell/Hays Examiner pointed to this right last year when they sued Caldwell County for blocking the public from initial bail hearings. In February, U.S. District Judge Robert Pitman ruled in favor of the news outlets, ordering Caldwell County to open its bail hearings.

“If you want to protect a defendant who has mental health issues, give them a lawyer,” said Geoff Burkhart, executive director of Texas Fair Defense Project, which is representing the news outlets in the Caldwell suit. Under the constitution, he said, “You can’t have a blanket policy of closing proceedings to the public any time there’s a mention of mental health. If there’s a reason to close proceedings to the public, it should be narrowly tailored to each defendant.”

It’s difficult to tell if Travis County’s approach is tailored.

During livestreamed proceedings January 9, after magistrating a tearful woman who squatted to see out of the meal slot in her cell, a judge on Zoom talked to a corrections officer who was setting the laptop up outside another woman’s cell. He told the officer: “you know because of the MH issues potentially here, let’s go ahead and go off YouTube,” ending the public livestream.

These decisions are left to the discretion of each judge and corrections officer involved. The choice to hold a hearing from inside a jail cell depends on several factors, a Travis County Sheriff’s Office spokesperson told us. Those include, “which set-up is currently working (technical issues happen), staffing, the mental/physical state of the detainee.”

As for in-person versus videoconference, the decision is ultimately up to the magistrate, the TCSO spokesperson told us. In the Inter-Local Agreement – a sort of contract between city-appointed magistrate judges and the sheriff’s office to handle jail bookings – it’s laid out like this: “while acknowledging that city magistrates [judges] have the final authority under state law … the county expects that magistration will occur in-person unless there is a medical or security-related reason to conduct the magistration by videoconference.”

Magistrates told the Chronicle that jail cell hearings tend to occur when defendants refuse to keep their clothes on, are throwing excrement, or are otherwise unruly. That is also why they say keeping a camera on during a mental health episode could violate patient privacy law.

Burkhart argues that the right to public proceedings trumps “a practical concern about modesty. … When modesty comes to blows with a right in the United States Constitution, the Constitution should win.”

In general, judges have a lot of authority to run their courtroom, in-person or virtual, as they see fit. Because magistrate judges are city employees, City Council does have some control, but enforcement mechanisms are limited.

Civil rights attorney Brian McGiverin worked on policy around magistration when he was on the staff of then-City Councilmember Delia Garza (now County Attorney). McGiverin said Council could direct magistrates to no longer run bail hearings from jail cells, but it’s tricky because of the separation of electeds from the judiciary. “Separation of powers is a good thing. But for basic decisions about the settings in which matters can be held, council certainly has the authority to tell judges they may not participate in magistrations conducted from jail cells,” McGiverin said. “What do you do if a judge ignores it? The best you could do is assign them fewer cases and then not reappoint them later.”