Saturday, February 24, 2018

Don't make excuses for bad choices by Harris County judges

The truth about Harris County judges misleading the courts and intentionally violating the constitutional rights of defendants before them is finally coming out.

When Texas state Sen. John Whitmire filed a complaint with the State Commission on Judicial Conduct against Harris County's magistrate judges, they defended themselves by saying the elected judges directed them to deny personal bonds, which the judges themselves at first denied. The magistrates were sanctioned anyway, and sources in this must-read Houston Chronicle story by Gabrielle Banks suggested that the Commission is likely now investigating the judges who gave those orders, which is basically all of them.

During the case before Judge Rosenthal, the county claimed they could come up with no evidence that judges directed magistrates. But when the magistrates were accused of misconduct, they produced 600 pages of evidence in that regard that implicated many current and former judges.

Now we know for certain the policies were explicit, widespread, and top-down. This wasn't a case of rogue magistrates denying bond without the knowledge of the judges. This is a case of magistrates serving as dependent vassals with no capacity for independent decision making whatsoever. And they obviously weren't too keen on revealing that truth to the federal judge presiding over the case, who justifiably felt blind-sided when representations made in the magistrate's disciplinary case flat-out contradicted those made in her court.

Finally, I couldn't disagree more with Grits contributing writer Sandra Guerra Thompson, who was quoted in the story thusly:
"I'm not sure the judges intended to do anything inappropriate in giving those instructions," said Sandra Guerra Thompson, director of the Criminal Justice Institute at the University of Houston Law Center. "I think this is part of the history - misunderstanding that magistrates are not the clerks of the judges. They are themselves hired to be independent judges."
That's giving them way too much credit, and cover. Since Grits first focused on bail questions in Houston back in 2005, the failure to grant personal bonds has been the central problem and it's been patently obvious for years that local elected judges were the culprits behind it. There's no "misunderstanding," it was intentional, and an abuse of power. That's why it took the federal courts to change things.

The idea that there was a structural, "cant get there from here" problem was always a lie. There's really no reason now for the press or advocates to pretend otherwise.

MORE: I should have called out Judge Michael McSpadden's comments from the story, too, and the more I look at them the more I think they deserve an addendum:
State District Judge Michael McSpadden, a long-serving jurist in Harris County, said he also had a no-bond policy for magistrates for at least a dozen years because he didn't trust the lower-level jurists not to make errors. 
"Almost everybody we see here has been tainted in some way before we see them," he said. "They're not good risks." 
The judge said he was concerned defendants would be released on bond only to be arrested on another offense. Many had casual attitudes about showing up for court, he said. 
"The young black men - and it's primarily young black men rather than young black women - charged with felony offenses, they're not getting good advice from their parents," he said. "Who do they get advice from? Rag-tag organizations like Black Lives Matter, which tell you, 'Resist police,' which is the worst thing in the world you could tell a young black man ... They teach contempt for the police, for the whole justice system."
Let's be clear: A) This was happening for DECADES before Black Lives Matter was on the scene, and B) the county NOT letting defendants be advised by lawyers at bail hearings was a big part of the suit! In fact, the county has now begun providing lawyers at bail hearings, so this is the first time they're being advised by anybody.

It wasn't Black Lives Matter or defendants' families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it.

AND MORE: ACLU of Texas has called for Judge McSpadden's ouster based on these comments, calling on the State Commission on Judicial Conduct to remove him. Said ACLUTX's Terri Burke, "When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can't be trusted, it's time to take action. This kind of flagrant racism has no place in our justice system." That said, Grits considers it far more likely that voters will remove McSpadden in November than that the SCJC will do so any time soon. He's facing a reasonably strong candidate, and Harris County judicial races appear poised to flip en masse from red to blue. OTOH, the SCJC couldn't possibly remove McSpadden by the end of the year, and based on its history, is unlikely to remove him at all.


PDiddie said...

This prompted me to look up McSpadden's Democratic opponent. In doing so I found Murray Newman had linked Brian Warren's name to Matt Damon's IMDb profile, and not Warren's actual website.

I suppose a) there must be an inside joke here, or b) Newman has revealed something about his online interests. Don't really care to know which it is.

Anonymous said...

"It wasn't Black Lives Matter or defendants' families causing their dilemma, it was people like Judge McSpadden, who clearly has lost the ability to make individualized judgments in these cases, if he ever possessed it."

I'm willing to go out on a limb here and point out that the troubles of most criminals, whether they happen to be young black males or not, start with their own behavior. That doesn't excuse some in the criminal justice system for making it difficult to break free of that behavior but lets not kid ourselves, okay? And McSpadden could have replaced BLM with several other groups that have been around much longer (such as the Black Panthers) in his comments but to deny family & friend influence on adopting a criminal lifestyle is also questionable, it's just unpopular for some people to admit the fact. So lets fix the constitutional problems with the local bail system and try to figure out a better way of dealing with criminals of all races, warehousing doesn't work any better than fifth and sixth chances given out of middle class guilt.

BarkGrowlBite said...

Sorry to be off topic, but here is some information that contradicts your put-down of cops when you honored garbage men, construction workers and bartenders for facing dangers in their jobs.

The Los Angeles Times reported Friday that an estimated 669,100 law enforcement officers were treated in emergency departments across the nation for nonfatal injuries between 2003 and 2014, according to a study by researchers at the National Institute for Occupational Safety and Health (NIOSH).

The Times report noted that law enforcement officers have historically high rates of fatal and nonfatal injuries. The new research shows that officers are three times more likely to sustain a nonfatal injury than all other U.S. workers.

Scott, that's three times more than all other workers.

Gritsforbreakfast said...

@10:43, no one has denied "family and friend influence," it's just irrelevant to the point at hand about personal bonds. More than one thing can be true. Some, perhaps even many, defendants cause many of their own problems. But they're NOT responsible for sitting in jail when a rich man would get out facing the same charges. THAT'S because of decisions by people like Judge McSpadden.

Gritsforbreakfast said...

@BGB, what's the comparison to injury rates for garbage men, construction workers, and the other high-risk categories mentioned in the post you're referencing? Comparing to all workers is disingenuous when that's not what I argued.

Again, to be clear, nobody ever said police officers don't have dangerous jobs compared to most workers, only that some common jobs which are given far less esteem and deference carry even greater risk. Which is true. Leaving garbage men, farmers, roofers, etc., aside, be more grateful the next time you eat fish, e.g., fishermen have the most dangerous job in America. Not sure why acknowledging it feels threatening to you. You should be HAPPY that police are killed at lower rates than any time in recent history, there's no need to feel defensive about it.

Anonymous said...

On BGB's point, many police departments REQUIRE officers to go to the ER for very minor injuries to create a paper trail to use against defendants. By contrast, in construction, farm labor, etc., ER visits are discouraged and/or FAR less well documented. Very different expectations and narratives about injuries at those jobs. See here:

Margaret Moon said...

Also on BGB's point, police and sheriff's departments not only require officers/deputies to go to the ER, they pay for it. Other injured workers are often not subsidized and so "tough it out."

Anonymous said...

BGB, if you consider the purpose of this website and it's owner, you've got to know the narrative here is never going to be pro-police. I'll give it to him that his focus is generally on what he considers bad policies and "bad cops" but he's long painted with a broad brush regarding exactly what that means, no quarter given for innocent bystanders in the field. Frankly, if that small group of bad apples were dealt with more effectively by the system in place, he'd have a lot less to complain about and generalize over so work on fixing the problems to deflate his sails.

Grits, if you were honest, you'd admit that "MOST" criminal defendants caused their own difficulties, not "some" and if the purpose of the bail hearing is to assess risk, a defendant coming from a terrible home environment with bad parenting and ill chosen friends is most certainly in need of a bigger bond or a denial of a bond altogether if the totality of circumstances dictate it. I do agree with you that a rich man facing the same set of circumstances should be treated equally but the numbers don't lie; "rich" people are far more likely to show up for future hearings, are far less likely to commit additional crimes while waiting, and typically put up bonds that help encourage expected behavior. If we were just splitting hairs about small percentages, that'd be one thing but that is not the case.

Gritsforbreakfast said...

@4:32, poor defendants who can't make bail may have caused some of their difficulties, but no matter how much you jabber on, the government's bail policies are the GOVERNMENT'S. You cannot reasonably blame them on those who are victimized by them.

And the federal courts said they WERE being victimized. Their constitutional rights were being violated.

Anonymous said...

I'd argue that Grits is never anti police but instead anti status quo. Here we have county officials who lied to federal investigators. Maybe it's difficult to empathize with criminal defendants but if the county is willing to eliminate their rights as a matter of policy and then lie about it, whose to say where it ends? If one organ in your body is diseased then your whole body is unhealthy. Or to put it another way (since I work in industry where continuous improvement is the only way to survive) "one defective product in a million is still 100% defective to the customer.

Grits challenges the ideas that police don't need more accountability, that mistakes and "bad policing" should be given some excuse, that it's the job of law enforcement to "take out the trash," or flush the "turds."

He's also a commendable realist in my view, he has demonstrated here in his blog and in his work that while he might champion a very much more rosy future in practice he is grateful for modest improvements across the board.

Anonymous said...

Grits, this is Anon 4:32. Complain about alternative opinions to your own all you like but ultimately, most defendants caused the majority of their own problems. You can minimize that all you like as an advocate but that is the reality. Conversely, I happened to agree with you that the courts were in the wrong but a strictly monetary bail system will always be flawed even if you and those that hate that system are going to be at least as upset with any true risk assessment system of bail. I'm just waiting for you to offer a better system that protects the rest of society while preserving the rights of the accused.

Jim Turner said...

Following this discussion thread brought to mind this poem by retired Judge Dennis A. Challeen:

Winning at Losing
If a man commits a crime and doesn’t get caught,
                                 His foolish mind believes he’s winning…
But we know he’s winning at losing.
And if we catch him; we retaliate, punish and lock him away,
                                  We too, believe we are winning…
But if our need for revenge makes him more violent,
                                  And his foolish mind doesn’t change…
And he returns someday to victimize us…our children,
                                  Are we, just like him, winning at losing?

Gritsforbreakfast said...

6:06, you seem to blame me for Judge Rosenthal's decision, and the 5th Circuit. It's not me forcing this conversation, it's them. You're demanding alternatives from the wrong person. (FWIW, Judge Rosenthal's order was fairly prescriptive, you just don't agree with it.)

That said, I've spent LOTS of time on this blog discussing alternatives, going back many years. The fact that you haven't bothered to read it doesn't oblige me to repeat it here.

Bottom line, read the linked Chronicle article: The judges set the policies. When they said before the magistrates were independent, that was false. Now the truth is coming out. Blame me if you want, but I'm hardly the cause of their woes.

Gritsforbreakfast said...

Hey Jim, that's pretty good. Must've posted it while I was writing my comment, good to hear from you.

Jim Turner said...

If you haven't heard of Judge Challeen and read some of his works, you should. That poem is part of the intro to his book Winning at Losing: When Criminal Justice Fails.

Unique perspective from a Judge with 4 decades on the bench. Biography and credits to long to post here. Check him out.


Anonymous said...

From the dissenting opinion of my favorite Supreme Court case:

"The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw. The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. [n19] Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination. The rule is one, not of action, but of inaction. It is sometimes [p485] spoken of as a rule of substantive law. But it extends to matters of procedure, as well. [n20] A defense may be waived. It is waived when not pleaded. But the objection that the plaintiff comes with unclean hands will be taken by the court itself. [n21] It will be taken despite the wish to the contrary of all the parties to the litigation. The court protects itself.

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face."

Olmstead v. United States

And before anyone points out that this was merely the dissenting and not the ruling... Olmstead was overturned in Katz v. US in 1967

Unknown said...

The Professor is wrong. The last thing these judges need is another apologist.

R Fickman

Betty said...

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen."

Arguably, they should be held at a higher standard. Therefore, "..if the Government becomes a lawbreaker, it breeds contempt for law..." by sinking from a higher standard, to below citizen standard, to criminal standard. Hence, the earned contempt from the citizenry.

Steven Seys said...

In my personal experience, nine out of ten people convicted of a criminal offense brought it on themselves, and brag about their illegal activities while complaining that the cops did them wrong. It's the other one in ten that interests me. Look at the total number of people incarcerated by Texas for criminal activity and divide by ten, then subtract the total number of people exonerated in Texas and the rest are the ones that you missed. We haven't even exposed the tip of the iceberg when it comes to exonerating the actually innocent. If so many people who are actually innocent can be convicted in Texas, there is a systematic habit of contempt for the constitutional rights of the people whom the police encounter every day. I am not saying that all cops are bad. They lock up so many people who contemptuously violate the rights of their victims when committing their crimes. But too many cops see the whole world through the lens of a prejudice, that all there is in the world are cops and perps, and everybody who is not a cop is guilty of crime.

Jim Turner said...

Steven, your points are interesting and mostly valid, but kind of miss the point of Grits post. Harris County is keeping people that have not yet been convicted in jail. You are right about those convicted, false convictions, exoneration's, etc. but those are people that have been before a judge and been convicted by trial or by plea. The problem is that Harris county's bail procedures unnecessarily keep far too many who have yet to be convicted in jail when they shouldn't be. Dirty little secret is that jails are not overcrowded with those convicted of a crime. They are crowded with those still waiting their day in court.

Anonymous said...

Smith county da’s, Judges , courts and police are the worst in the United States.
I ask you grits why you fail to investigate the Smith county bucket of shit that wears the costumes of injustice?

Anonymous said...

Agree, the professor is dead wrong. Her commendable, yet scholarly devotion to pretrial justice shrouds her from the reality that exists in practice. For decades, I heard numerous reasons why individual judges wouldn’t grant personal bonds or prevented magistrates from doing so. Reasons that were unsubstantiated by respectable research on risk, that defied judicial training on best practices, were contrary to case law or existing statutes, and even ones of convenience. An example for the latter category is docket management. Many incarcerated defendants plead out at the first court setting. Quick dispositions curtail the number of cases pending in an individual court – a criterion that, legitimate or not, negatively reflects on the judge when the numbers are high. Efficiency rather than effectiveness takes precedence. CO

Gritsforbreakfast said...

@7:16 - why don't you do it? It's a big state, there's lots to do, and I can't do it all.

Anonymous said...

It is interesting that a defendant who sits in jail for months or years is "credited for time served" incentivizing the defendant to take a guilty plea to prison or jail. Why not pass laws that would mandate time sitting in jail awaiting trial be applied to the type of probation and or term length of probation?