An Arkansas federal judge has kept alive a suit challenging a state court's failure to appoint counsel to indigent clients prior to their bail hearings, saying the defendants can't escape the claims based on sovereign immunity and declaring that appointed counsel provides "critical assistance" during a bail hearing.

On Friday, U.S. District Judge Timothy L. Brooks declined motions to dismiss brought by defendants including District Judge A.J. Anglin, continuing forward with a class action led by Abigail Farella and Logan Murphy, who say they were both kept in detention in Bentonville, Arkansas, for over a month after their bail and arraignment date were decided upon before they were appointed counsel.

"They [the plaintiffs] contend that the proceeding marks the beginning of prosecution, and because the pretrial detention and bail determinations hold significant consequences for the accused, defense counsel must be present," Judge Brooks said. "Defendant Anglin disputes both contentions. The court finds that Plaintiffs state a claim upon which relief may be granted."

A day after her arrest for felony possession of a controlled substance, Farella had an initial hearing in which Judge Anglin set her bail at $10,000 cash and scheduled her next court date for over a month later. It was only after these decisions that Judge Anglin deemed Farella indigent and appointed her a public defender. With no representation during this hearing, the bail was set too high for Farella to get out, and thus she was left in jail for several weeks unfairly, she claimed in the June 24 complaint.

Similarly, Murphy was arrested for fleeing arrest and reckless driving, and his bail was set to $40,000 without yet having representation. The plaintiffs claim that in Bentonville, public defenders never attend these initial proceedings, in which the judge often decides on bail. They say this violates defendants' Sixth Amendment right to counsel.

Defendants Judge Anglin, Chief Public Defender of Benton County Jay Saxton and Executive Director of Arkansas Public Defender Commission Gregg Parrish filed motions to dismiss on July 19, claiming that they have sovereign immunity, that plaintiffs failed to state a claim and that they targeted the wrong parties with their complaint. The court shot down all of these.

Saxton said, as chief public defender, he had no authority over the number of public defenders in his office or funding for public defenders, and thus should not be named in the suit. Judge Brooks found this irrelevant to the claims.

"Plaintiffs allege that Mr. Saxton 'has the authority to order the deputy public defenders to certain courts at certain times,'" the judge said. "Such authority suffices to establish 'some connection' to the challenged conduct."

Judge Anglin argued that he should be protected under sovereign immunity, but again Judge Brooks disagreed. Sovereign immunity is designed to shield judges and other officials from certain lawsuits challenging their jurisdiction. It usually applies to plaintiffs seeking to sue judges over rulings on a particular case. However, Judge Brooks said it does not apply here, because the plaintiffs "do not seek to litigate the 'merits of any underlying lawsuit' by suing Judge Anglin."

"Plaintiffs want legal representation made available to indigent defendants during bail hearings; Judge Anglin contends defendants are just fine without counsel," Judge Brooks said. "On this very narrow issue — the timing associated with appointment of counsel — plaintiffs and defendant Anglin are adverse."

Judge Anglin also made the argument that because plaintiffs are not currently incarcerated, they've failed to state a claim because there is not an ongoing violation.

"Judge Anglin, however, does not deny that he continues to engage in the same pattern of allegedly unconstitutional conduct," the judge said. "The existing policy will subject putative class members to the same injury on an ongoing basis."

As for the defendants' argument that Murphy and Farella failed to state a claim because not having an attorney at a largely "administrative" hearing does not violate the defendant's right to counsel, Judge Brooks determined this was not a correct reading of the Sixth Amendment. Defendants have a right to counsel as soon as "the government has committed itself to prosecute" and the Supreme Court has held a range of pretrial proceedings to be critical, Judge Brooks said.

Judge Brooks noted that the high court "has not directly addressed bail," but he said, "Nevertheless, its precedent suggests that the Supreme Court recognizes the significant advantages inherent in counsel's assistance at a bail hearing — and that the pretrial detention determination may represent a critical stage."

If plaintiffs claim that indigent criminal defendants unable to post bail are unlikely to meet with counsel until the next hearing, which is usually set for over a month away, is true, this is a significant impairment in their defense strategy, Judge Brooks said.

"An unrepresented defendant's lack of legal knowledge often precludes effective advocacy with respect to both release and bail," he wrote. "But it also risks more far-reaching consequences. As plaintiffs explain, '[a]n unrepresented defendant may offer up information that is detrimental to his case in an attempt to persuade the judge to let him out of jail.'"

And in both Murphy and Farella's case, Judge Anglin actually imposed bail in an amount that was much more than what was requested by the prosecutor, and the bail was reduced when plaintiffs met with their respective attorneys a month later, Judge Brooks said. 

"Accordingly, the court concludes that pretrial detention has a substantial impact on the defendant's right to a fair trial, and second, counsel provides critical assistance to the accused during a bail hearing, thereby reducing the likelihood of detention and conviction," he said. 

Plaintiffs are represented by Allison Lee and Norman Douglas Norwood of Norwood & Norwood PA. 

Benton County District Court and Judge Anglin are represented by Christine A. Cryer, Justin Brascher and Vincent Perry France of the Office of the Arkansas Attorney General. 

Parrish and Saxton represented by Parrish himself, Marshall S. Ney, Katherine Church Campbell and Sarah J. Breeding of Friday Eldredge & Clark LLP.

The case is Farella et al. v. Benton County District Court, case number 5:22-cv-5121, in the U.S. District Court for the Western District of Arkansas, Fayetteville Division. 

--Editing by Rich Mills.