these arguments where people split up does anybody time and how to where you say thing in two minutes in three minute bites in twenty six years on this court i have rarely seen is successful the done either people magistrate likely to prevent an arrestee from getting a fair trial or to otherwise effectively seal his fate and that is particularly true in galveston where orestes get a council bail hearing just twelve hours hughes i know you want to get into that issue about the critical proceeding whether that's what this is i have a procedural question which is there's another appeal challenging the class certification and raising i've looked at the braves i skimmed them in that case a host of jurisdictional challenges to what the district courts doing in this case through no fault of any of the lawyers here you know that was brief her arse but now this case is set for argument st and it seems to me we we would have to decide not us they would have that same panel but our poor would have to resolve the jurisdictional challenges to class certification and the like before addressing the merits of the injunction i'm just curious what your thoughts are on that and if if you think we do have to wait for that appeal to be decided for us to come through that's a really good question and certainly if there's no jurisdiction and i think both of the cases go away or both of the appeals go away by the same token if we prevail in the class or occasion and the class or order goes away then there's no sort of fight class and this appeal goes away as well so i think either of those reasons would be sufficient advised at least i've know that there is biased if they to apply in the process where they go through the financial interview in the person involved office if at that time they say they don't want to do the interview provide their financial information there's a form that they have to sign and they're all advised fact if you don't provide this and you will not get it so they are advised to get at least if they declined the interview magistrate has all that financial information in front of them when they make initial bail determination unlike the prior system and again that's following what the what this court said were you know dollars the right way to go  bond and then it turns out you know your family won't give you the money and you need asked for that to be ready that those people do if you agreed of if you say you can pay the amount you don't later get a hearing right that is mean the st day you say oh i can afford ten thousand dollars and then you know you call mom and mom says sorry i'm tired of you getting into trouble not giving you a dime how do you how do you but you're not automatically going to get back here in the next day because you you thought you could meet the bond also had categories of folks who don't get the individual out of hearing a lot of them are people who are entitled to release because they were brought in and magistrate elsewhere or they have a temple of federal immigration hold on them things like that were an adequate one he said there is a substantial risk of self incrimination no evidence at all supports that in fact the plaintiffs pivot away they don't try to defend substantial risk they just say if there's any possibility of it happening then that's sufficient to create a criminal stage both this court's precedents and the supreme court's reject that notion this court said in the robles case whether or proceedings a critical stage depends on whether there was a reasonable probability of the defendant's case could suffer significant consequences and that's consistent with the st team which talked about the high probability of substantial harm and weight which talked about the grave a potential for prejudice and these isolated experts act alex bunin the harris county public defender had to go through three years of magistrate ins in harris county to find a single example so the motion of this is happening all the time is simply not supported by the record other for decades has been advocating counsel bill review hearings as what is needed to help arrestees in this situation and he acknowledged that in galveston county at the bellevue hearings the arrestees are getting released nine percent of the time he's he said allison county's use of council building hearings has made all the difference in the world that completely undermines the anchoring theory and there's no other evidence to support it the simply mr  a professor colbert saying their experience in other jurisdictions they felt like there and anchoring phenomenon existed but they're not psychologists are not qualified to justify it to that and they had no data backing  position in this particular appeal is a little bit different then the other parties as well because we are a non party to the injunction injunction order and that was one of our arguments in the brief is that even though we are a non party to this particular order we meet because studio three factor test of being you know involved in the proceedings below in the district attorney as representing criminal the state of texas in criminal proceedings in galveston county has a direct and personal stake in the outcome of this injunction but i also share mr hughes's concern about the fact that right now there is no day and so the injunction is currently being implied as the case progresses that this time stage i think the apple ways are shifting the focus of the whole when you boil this down this comes down to the question of what harm is being presented and so those ships the focused and critical stage analysis from where there are high probability of substantial harm exists that could impair the right to a fair trial so whether any type of harm potentially it's but in doing so they're ignoring that and galveston county in particular that o'donnell forty eight hour hearing happens within twenty four hours with council president and that's faster than most jurisdictions in texas and this eliminates the high probability of substantial harm to the right to a fair trial because review is available pretrial and because of that this is not a critical stage but the practical effect of the injunction in this case could ripple well beyond galveston county because what's going to happen is that more people could spend more time in jail so if setting bail or setting any condition of pretrial release under the injunction because it's a little bit broader than just if that deemed to be a critical stage of the initial appearance that means that people will not be able to obtain release until counsel can be present at that initial appearance and so beyond galveston county if the mclachlan time period of forty eight hours applies as it wouldn't obviously jurisdiction is fundamental to any other decision and so the question of movements does need to be decided before the merits are reached there was not a motion to consolidate the appeals filed but i just would remind the court has the power to consolidate those cases on its own or to control its own docket and ensure that those decisions come out in the right order but in any regard the question of nudism is fundamental to your questions and has to be resolved  individual magistrate who's conducting it it would have to be in a hurry that would be specific to each individual person where they told this or the same way that whether somebody reaps receives miranda warnings as individual that the defendant  obviously it would be a good idea for an officer to give miranda warnings but we all know sometimes it doesn't happen with respect to the other point i wanted to make sure the court is aware of even if this core finds that were state actors performing a judicial function and the county could not be held liable for those actions which is different from o'donnell where we had misdemeanor judges those are county or larger is as opposed to state this for judges who are state officials schedule which is the policy that was in question o'donnell and those two distinctions made all the difference in the world about whether this case with respect to the county should end up more like davis and less like  itself where i do that i'd like to give the court a brief overview of why the district court's injunction here was not an abuse of this question the district court determined correctly that there is a right to counsel and galveston county ma without risking their substantial rights in one of two ways either give up their right to silence and risk making an incriminating statement or remain silent but give up the right to be heard on bail and risk a lengthy and unnecessary pretrial detention those findings were supported by an extensive factual record that was developed before judge addison over months and included twelve hours of live testimony but it expert testimony from this three career public defenders who testified to the specific seriously i mean seems to me the same concerns if they're valid would apply to the initial appearances in federal court i mean here's what happened which whichever one may be familiar with it i'll just say this morning the f b i arrest someone on a federal charge they would get an initial appearance today in federal court before a magistrate judge now you know you could have a lawyer but oftentimes you don't get have a lawyer so you either do the math that's the thing the st thing the magistrate judge asked after reading what the charges says well what are appoint a lawyer but in less than a point the public defender who may have someone in co or that court appointed lawyer is not going to be present that day then the next order of business the magistrate judge says oh i've got in europe you know pretrial services interview jew about your financial situation and you know they're recommending a bond of whatever and what's the government's position in the government can do for detention and in federal court if they move for attention you have to wait of a few days anyway but if the government says you know we can we  agree to a bond in the federal magistrate judge based on the pretrial services report says ok i'm going to set bond at x dollars and there's no lawyer there so how do you just maybe you think that i guess the question is one do you think that's unconstitutional why isn't that self incrimination concern just as valid i'm sure today in the building i'm sitting in there are some initial appearance as i mean when he's into the side but and you're right there questioning those defendants why doesn't that raise the same th amendment concern that that defend nt might say something incriminating the magistrate is is in the federal proceeding not asking the question do you have any charges pending in other stiction jurisdictions for which you're out on bail are you a citizen of the united states do you think you included in a report and arrest you being questioned about it and here's where it is in the recordings of galveston county magistrate and it shows arrestees when they're confronted with this information about themselves doing things like trying to explain their reasons or feel your to appear which is uncountable strategic decision do i give up my right to silence here and risk incriminating myself which they bury obviously can do or do i remain silent and not try to make a case for individual lies and problems release and another point that i'd like to make here concerns the operation to be able to review procedures so defendants have pointed to the written bill review policy and said well arrestees are diets that if they waive this financial interview they're not going to get a bill there's two problems with that one is that they're not advised that the bill you're hearing will be challengable so as far as they're concerned they're going to be brought in one time and then another and it's just more of the same and in addition t they would understand that there's going to be a separate i mean they're watching it with their own ons well at the outset arrestees don't know what but what that proceeding that is that's happening or that they don't know that they're going to get a lawyer twelve hours later and what i'm trying to point out is that regardless of what the written policy says they're supposed to reach orestes or declining the financial interview testimony before a judge edison indicated that they're not actually doing so and so this is in the record from the personal and officer at sixty six or nine he testified that they basically telling arrestees are you sure you don't want to complete this interview it can only help you which is false and if if they if they disagree they go ahead and sign the form and that's a way that they can be in omitted from the interview where they ask arrestees shortly after they've been booked into jail how much money do you guess your family is going to be able to pay a bill borne xmen within the next twenty four hours for your release and their answer to that question is treated as fact she also testified that because this is shortly after rescuers are booked into jail they're often high or drunk and they might not understand the implication of the question because they often before her don't even remember what number they've put down and what's important to remember about the counsel there they're not getting the findings that are required under o'donnell because magistrates are not required to make findings that on the record in that proceeding and they're going to be potentially detained for weeks because the record shows it takes two dollars to four dollars days for them to actually have an system with with you given the st day that there's going to be a bond setting a lot of people walk out the courthouse door meeting that bomb without having to spend a night in jail which no one wants to spend even a night in jail or is this just this and then the next day you have a  hearing with a lawyer maybe a few people don't get out here and you have to wait till they get a full lawyer appointed and that takes a week or two what's needed that's a system or a system where you don't get a hearing the st day and then you have to get a lawyer in that so you're only getting a hearing on the nd day so no one's getting bonded out the st day i mean this is sort of the dia council's point that she made what's your response to one of the better situation for a defendant i would like to address that point and i mean i everyone who's qualified for bail review in the same room that night distraction is conducted and every day at seven am and seven pm they conduct the bilby and hearings and then they literally send the defense attorney out of the room in order to conduct  chance to bail out before you spend a night in jail well there your honor i would also like that's terms not some not so much galveston but what are all it would mean brother counties that have different dynamics so there's not necessarily a reason why arrest you would need to be told here in galveston the prosecutors recommended bail amount or in other places a prescheduled bailing out the sheriff is free to release them under the code and for those who are unable to pay they would be detained pending their hearing either way so it's not really doing anything schedule all the shooter would have to do is say if you can afford it based on your charge i'll let you go in galveston they would say if you can afford the amount of money the prosecutor is recommending i'll let you go if not you're going to get i'll do schedules are real you need a judge i'm just i'm going to surprise you so you'd rather have a share of making the initial germination by a schedule as opposed to a judge making what o'donnell says needs to be an individualized determination looking at a number of facts and i want to be clear  on the record that there will be that there is a schedule of bail imposed you can tell that because it says arrest you can't afford to pre scheduled bail they have to attest they can't afford to be stepping down and they're provided with this counsel with this you know robust bail say you know not to imply up like a constitutional straitjacket we're not saying that localities can't layer local practices on top of the requirements of state law that might remove the basis for considering this hearing to be a critical stage of prosecution but in order to do that those local practices have to quote eliminate the risk that made the proceeding a critical stage in the st place and here galveston county has not done that because of the obviously is that ar three years worth of data whatever whatever and that the either only the single is set off a few incidents of actually incriminating you know statements and there was something of burning to not only going to galveston but adjacent just in some of that hung up on whether or not there some magic number the would have to appear but i am trying to get a better sense of the argument being made about quote incriminating statements you know being used from the video it cetera so i want your answer to you know exactly where that i mean this doesn't happen i'm not suggesting if it happens twice as to view or whatever but i do want your take on in secondly it has happened had it been been for example an objection back counsel in the later proceeding to the use of that videotape incriminating information say i object to being used he was on be a reason to file that's freshly motion because it would be a basis for at this court has already held it's not a basis for excluding the statements of trial nd on the point of evidence or supporting the risk of self incrimination i'd like to make three points ones about the nature of that question was about the evidence that we introduced and once about the defendants the defendants lack of rebuttal so st it would have been enough for a judge i dissent to examine evidence of galveston county's policies and practices and determine that the nature of galveston county not just regions inherently poses a risk of self incrimination that's the way the work proceeded and coleman in a sterile they don't demand that indigent defendants come to federal court with a robust imperial study of how often these cases can result in statements that said judge edison did to my nd point entertain a great deal of evidence that there there is a risk of incriminating statements that bears itself out and before the bill review hearings were implemented but i remind the court the bill review hearings don't do anything to alter the procedure a magistrate in accepts the magistrates are expected to actively ask arrestees an additional question about what they can afford into jail and they understand that the judge is making a decision about whether or not they can hold up there they are prompted to speak about the circumstances of the allegations against them and try to advocate for their release and that can hurt their ca mr bunn is declaration wasn't purporting to identify every single case in harris county where people had incriminate themselves incriminate themselves i see that my time is up all right ok thank you video like that they would be pointed out to this court and they're not doing that you're just saying look at the videos collectively and you'll see examples arrestees speaking at magistrate which of course these people are magistrate because they are sometimes asked questions about their financial circumstances nd point i'd like to make is that this court on bond decision in dome squarely rejected the notion that a defendant is compelled or coerced into making incriminating stat at a bail hearing because as the court said the subject of the bail hearing doesn't relate to the merits and that's true under both federal bail while i've issue and the texas law in the sense that they have similar about the concern about lengthy pretrial detention and to the point i want to drive home on that to the court because it's only unwarranted trial detention that is really at issue here it is true that under the current system lacked an attorney to advocate for him at a bail hearing when rd point i want to make counsel's reference to the garbage and garbage out again that financial interview and could you come up with and he said there aren't any i can't come up with any better questions they're just saying here at least defendants just can't can't estimate what their finances are and if that's the case it's hardly galveston counties fault counsel also mentioned the substantial risk i want to point out of players did not try to defend the district court substantial risk ruling instead they fitted to the notion that any risk is include sort of a chicken and egg problem of you really have to if you're going to do that and provide counsel just upfront there's no way to figure out you have to provide it everybody because at that stage i don't know how you're going to sort out who's indigent and who's not and the state is not supposed to be providing counsel to people who are not indigent but if we don't have the financial information to determine who is indigent and who is not then they really shouldn't be getting counsel so that's a problem there in addition to the there talked about in his deposition if you rush this the household hearing up to the very earliest point in time what it could occur and again under the concept of say of them out of time  ground is a lot involved in this case not the least of this so the collateral on but the case will be submitted and we will unravel it in getting opinion out soon as we can