Tuesday, January 12, 2016

Harris Co. judges balked at giving defendants representation at bail hearings

The other day Grits expressed skepticism at the sincerity of claims that Harris County officials would commit to a serious plan for reducing the jail population. Lisa Falkenberg at the Houston Chronicle offered an additional reason to think the Harris County plan lacks broad support.

Nearly everyone except the judges quoted in her story agreed with a plan to provide defendants with counsel at their bail hearing:
Whether charged with misdemeanors or felonies, the accused typically are hauled before a split-screen video monitor where a magistrate in another room determines whether to grant bail and how high to set it. The decision is based on the charge and criminal record, with little regard to actual risk or ability to pay.

A prosecutor is there but no defense attorney.

The practice violates constitutional rights to due process during a "critical stage of trial," and it needs to be changed, Harris County Public Defender Alex Bunin wrote last month in a memo, obtained through a Texas Public Information Act request.

Often, defendants have no idea what's going on at bail hearings, Bunin explained. Some are mentally ill. Some may try to speak and end up incriminating themselves. They sometimes seek legal advice from another defendant, from a deputy or any other warm body nearby. Then the magistrate decides whether the defendant will await trial in jail, whether a student will miss school, a single mom will lose her job or a father will be home to help take care of the kids.

"An adversarial system cannot function when only one side shows up," Bunin wrote to County Attorney Vince Ryan, proposing a pilot program to provide lawyers at bail hearings.

Ryan wrote back that he supported the pilot, as everyone should. It's not a novel concept. All of Harris County's large urban peers provide lawyers at bail hearings, including jurisdictions serving New York, Los Angeles and Chicago, Bunin wrote. Even New Orleans does it.

In a news conference last week, District Attorney Devon Anderson said she supports representation at bail hearings. It also was a priority for Harris County Commissioner El Franco Lee, who led the Criminal Justice Coordinating Council but died a week ago of a heart attack. His longtime colleague, Steve Radack, the committee's vice chair, told me Friday he was open to the idea and to finding money to do it.

In truth, it will save the county money to stop jailing people who don't need to be jailed. The current system, as I noted last week, is costing more than $380,000 per day. The council estimates, probably conservatively, that 1,800 inmates are unnecessarily jailed, including those charged with nonviolent felonies, misdemeanors and serious offenses who pose low and moderate risk.

Consider: among large U.S. cities, 25 percent of felony defendants are released without posting money at all, Bunin wrote in his memo. In Harris County, it's less than 2 percent.

"More common sense needs to be injected into the criminal justice system," Radack said.
Despite support from the DA and even from county commissioners who'd have to pay for the lawyers, the measure was removed from the plan submitted to the MacArthur foundation at the judges' request, scaling representation back to providing "lawyers only for mentally ill 'frequent detainee' defendants charged with misdemeanors."

Meanwhile, in the Houston Press, Grits contributing writer and U of H law prof Sandra Guerra Thompson's critiques of the bail system in Houston were featured prominently in an article by Meagan Flynn (who's been providing this issue good coverage lately).
“The question of having counsel at the bail hearings, first appearance, is a really important one,” Thompson said. “We have this crazy un-American system where people appear before a [magistrate] and there's a prosecutor but no defense lawyer. It's not consistent with the adversarial process we think of when we think of a fair judicial hearing. 
Whether someone has counsel at their bail hearing is:
the critical factor [regarding whether a defendant is released],” Thompson said. “It's the most important consideration in determining if a person stays in jail pending their proceedings or not. When you look at a group of people with a lawyer and a group without, the one with a lawyer is two-and-a-half times more likely to be released on a personal bond or have their bond lowered. The difference is dramatic.”
At a minimum, Harris County DA Devon Anderson is enthusiastically on board with the idea, to Grits' delight. The next news will come in a few weeks when a committee produces more specific recommendations.
“Let me say this about having a defender at probable cause court," [Anderson] began." I think it's a great idea—exactly what you're saying: somebody to advocate for a defendant to show a magistrate, 'This is why you can let this person out, and they're gonna be okay.' I think we need them for that reason, and I really think it provides a huge opportunity to expand diversion even more, where we can offer it right then in probable cause court because they would be represented by counsel. We're for it, and I have every hope we're going to get that up and running this year.”

While the supposed "culture change" may have an undetermined deadline, a committee currently studying how to best implement fair representation for all people at bail hearings may have to act much sooner. They're expected to have answers by March 1.


Anonymous said...

So, if Harris County has a public defender's office, why is this such a problem? It seems to me that the commissioner's court simply needs to pass a resolution directing the public defender's office to be present at all magistrations.

Furthermore, if they want to take a page out of fed's handbook, the Harris County Pretrial Services office could also be present at the jail to screen newly booked inmates to determine their risk level and forward that assessment to the magistrate. Seems like this could save a lot more money than playing all of this out in the news because some judges don't like change.

Anonymous said...

Yet another example of Texas prosecutors taking the lead on progressive criminal justice reforms. Kudos to Devon Anderson for making the extra effort to see that "justice is done."

Alice said...

This is a no-brainer. How can one possibly argue that the first appearance is not a critical stage?

Alice said...

This is a no-brainer. How can one possibly argue that the first appearance is not a critical stage?

Anonymous said...

I imagine in our town the Bail Bondsman's would throw a fit. They make a killing off the ridiculous bail set by judges in this town. They throw big parties at Christmas and invite all the county staff's and judges. They even have "door prizes". I have personally heard our district judge saying that bail is meant to keep criminals in jail so they don't "get away with anything". We can barely get one of the judges to appoint attorneys for the indigent. He believes if you make minimum wage you can find and attorney to "take payments". Seriously.

Anonymous said...

"Yet another example of Texas prosecutors taking the lead on progressive criminal justice reforms."

That's a joke right?

Unknown said...

There is no true justice in a court system where the judge, the prosecutor and the police form a triad against the accused. This is tyranny. A recipe for guaranteed "injustice".
This is what's going on all over Texas.
It has always been this way.
It must stop.
Will it?

Anonymous said...

That's because in their opinion it's not gonna change a damn thing, public defender, no public defender, they're going to continue their unconstitutional bail practices.

Anonymous said...

Another good reason to obey the law. Don't go to jail, don't have to worry about making bail.

Anonymous said...

@5:39 AM - Your comment is out of topic. The issue is not wether or not one should commit crimes (duh?) but what needs to happens in terms of offering bail in a constitutional or legal way.

1. One is presumed innocent until found guilty.

2. Corrupt cops and prosecutors have put innocent people behind bars.

3. Texas, has had more DNA exonerations—37 in all—than any other state (there have been 222 nationwide according to the Innocence Project, a nonprofit advocacy group for the wrongly convicted). Dallas County alone is responsible for 19 exonerations, more than every state except Illinois and New York. Unlike most jurisdictions, which discarded evidence after the appeals in a case were exhausted, Dallas County had a policy of saving it in storage lockers at the Southwestern Institute of Forensic Sciences, in the belief that it might someday be used to reaffirm a criminal’s guilt. As for the other 18 Texas exonerations, it was mostly dumb luck that prevented the old swabs from being thrown away. (In 13 of these cases, the guilty man was eventually fingered.) - Under the circumstances, an honest bail system is crucially important.

- See more at: http://www.texasmonthly.com/articles/the-exonerated/#sthash.4H9mIw0x.dpuf

4. There should be separationm of powers.Dallas (above) stated: "There is no true justice in a court system where the judge, the prosecutor and the police form a triad against the accused."

5. There are still innocent people rotting and dying in Texas jails and prisons. There are guilty people too. Bail would reduce that number.

6. We all are one stupid/corrupt/untrained/overly-zealous/uneducated/sadistic/psychopath cop away from being arrested, put in jail, and may be even condemned unjustly. We are not even safe in our own homes as a swarm of cops in assault gear may barge-in and even kill your dog just because they "made a mistake." - It has happened.
So, not even your dog is safe
Go to:


Your self-righteousness will not protect you one iota from getting arrested or killed by one of them for no other reason that they can.

Anonymous said...

"Another good reason to obey the law. Don't go to jail, don't have to worry about making bail."
Wrong! Folks who broke no laws are in jail this very minute. Some are already dead.

As to police killing even innocent dogs: this has nothing to do with bail, but it makes the point that the system is not perfect and that the bail system is there for this very good reason.

Just one example: http://www.nydailynews.com/news/national/austin-police-chief-calls-radio-show-apologizes-man-dog-shot-responding-wrong-house-article-1.1063552

Recording captures Texas cop shooting and killing man's dog after showing up at the wrong house.

Unknown said...
This comment has been removed by the author.
Anonymous said...

Yes, you can get beaten up and arrested for nothing.

Two men had just crossed the street when they were rushed by several Austin police officers who shoved them against a wall, punching and kneeing them while telling them to stop resisting.

When asked what crime had the men committed, one of the cops looked up and said, “crossed against the light.”

Yes, that heinous crime of jaywalking, which is taken very serious in Austin as we learned last year when the city made international news after police beat up a jogger for jaywalking.


Anonymous said...

Jails are dangerous everywhere in Texas.
The City of Jasper had to settles a Jail Beating Suit for $75,000.
Loaded on JAN. 13, 2016 by Matthew Clarke - Prison Legal News
Filed under: Failure to Protect (General), Excessive Force (Police). Location: Texas.

In November 2013, the City of Jasper, Texas, settled a lawsuit brought by a young black woman who was allegedly beaten by police at the Jasper City Jail without justification. She received $75,000.
Keyarika Diggles, a 25-year-old single mother of two young children, was the young black woman.

Anonymous said...

Documenting Texas judges corruption:
Texas State District Judge Sentenced for Corruption
Article • January 12, 2016 - Prison Legal News
Filed under: Judicial Misconduct, Attorney Misconduct
Texas State District Judge Sentenced for Corruption by Matthew Clarke On August 21, 2013, Abel Corral Limas, 60, former judge of the 404th Judicial District Court of Cameron County, Texas, was sentenced to 72 months in federal prison on racketeering charges he pleaded guilty to on March 31, 2011.

Anonymous said...

Texas Grand Jury Indicts Two Jailers in Prisoner’s Death; Others Face Discipline

On November 23, 2015, a grand jury in Tarrant County, Texas returned an indictment against two Arlington Police Department detention officers for one count each of criminally negligent homicide.

Pedro Medina, 33, and Steve Schmidt, 57, were working at the Arlington jail on March 20, 2015 when prisoner Jonathan Ryan Paul, 42, became disruptive. Paul was pepper sprayed and forcibly removed from his cell, then began to struggle while handcuffed and was restrained by up to four guards.

A 911 call was placed and paramedics arrived on the scene. Paul had no pulse but was revived and transported to Texas Health Arlington Memorial Hospital. He was placed in the intensive care unit with kidney injuries, respiratory failure, liver failure and a temperature of more than 103. His family made the decision to remove him from life support three days later.

An autopsy report issued by the Tarrant County medical examiner’s office found that physical restraints and the use of pepper spray had played a “significant role” in Paul’s in-custody death, though the cause of death was undetermined.

Prior to the indictment, Medina had been placed on administrative leave without pay and Schmidt retired in October 2015. Paul’s family filed a federal lawsuit against the city, alleging that jail employees were deliberately indifferent to his medical needs and denied him care when they became aware he was in distress. That case remains pending.

Two other Arlington jailers, Wes Allen and Matt Fisher, face termination in connection with Paul’s death, while Sgt. Frank Vacante faces a five-day suspension for failing to adequately supervise other jail staff.

Sources: www.star-telegram.com, www.abc13.com

Anonymous said...

Houston Justice System Disfavors Poor

Blacks awaiting trial in Harris County Texas have always had a tougher time receiving fair treatment than other ethnic groups. They still do.

Gerald R. Wheeler reviewed more than 6,500 felony and misdemeanor pretrial detainee cases in Harris County, between January 2012 and June 2013. Wheeler, who served as director of the Harris County pretrial program from 1977 to 1983, was joined in the study by local attorney Gerald Fry. Their research revealed that pretrial detainees who could afford to make bond were more likely to receive favorable treatment in the courtroom. Their findings also revealed that, regardless of age, ethnicity or skin color, detainees unable to post bond were less likely to have their charges dismissed or to receive deferred prosecutions, a modified form of probation.

A review of drug possession cases showed that 83 percent of those who were able to post bond received deferred prosecution compared to only 55 percent of those who remained in jail. First-time felony offenders who could not afford to post bond spent, on average, more than two months behind bars before having their cases settled.

“Regardless of age, ethnicity or color of skin of over 90,000 people annually arrested, what generally determines the defendants' fate is his or her economic status,” says Wheeler. “In jail system, class defines fate.”

People unable to post bond often languished six months or more awaiting trial because Harris County judges are reluctant to release pretrial detainees on their own recognizance, regardless of whether they are charged with a felony or misdemeanor. In 2012, Houston judges released only one percent of those arrested for a felony and only seven percent of those charged with misdemeanors on personal recognizance (PR) bonds. Their counterparts, according to a 2006 U.S. Department of Justice survey of 75 urban areas, released about 26 percent of those charged with a felony on PR bonds.

Wheeler's findings are similar to the results of other national studies. Poor people unable to post bond are not only given less consideration in the courtroom, but they are also more likely to jobs, homes and family relationships while languishing behind bars. The losses are just as real even when the person is proven innocent. What's worse is that some feel pressured to plead guilty just to get out of their situation, even though they are not actually guilty.

In 2009, Wheeler published a similar report that revealed exactly the same results. The fact that no change has been made or even attempted in the last four years indicates that while the inequity exists in the plain sight of Harris County court officials they have become desensitized to the double standard and choose to maintain the status quo.

Caprice Cosper, a judge and the director of the Harris County Office of Criminal Justice Coordination, would not comment specifically on Wheeler's report but said that city officials continue to study the complexities raised by the jailing of first-time offenders and the mentally ill.

Johnny Mason, then 55, was arrested in March 2012 on charges that he beat his girlfriend with a board. Mason remained in the county jail for eight months before being acquitted of the charges against him. His attorney, Michael Trent, said that unlike Mason, many other pretrial detainees feel pressured to plead guilty just to get out of jail.

Carlos Mathis, 42, spent seven months in jail, unable to post bond, before the drug possession charges against him were eventually dismissed.

Wheeler's study also showed that mentally ill detainees often spend extended periods of time behind bars before being properly assessed and treated.

When interviewed by the Houston Chronicle editorial board and questioned about the decades-old mind-set even some Harris County jail guards admitted that the system was in need of a “culture change.”

Source: Houston Chronicle

Unknown said...

@ 1/14/2016 05:39:00 AM - INNOCENT PEOPLE DO END UP IN JAIL.
Report: Nearly One in Four Exonerations Involves Crimes that Never Occurred
JAN. 1, 2016, Prison Legal News January, 2016
Sources: http://gritsforbreakfast.blogspot.com, www.law.umich.edu

A report issued by the National Registry of Exonerations in November 2013 found that 22% of the known exonerations in the U.S. resulted from “no-crime” convictions – that is, cases in which the offender was cleared of wrongdoing because the crime never happened. ....

Of the 1,242 exonerations included in the Registry at the time of the report, 210 in four major categories were listed as being due to crimes that were never committed. Of those, child sex abuse cases topped the list – 75% of all child sex abuse exonerations involved no crimes. By comparison, no-crime homicide exonerations amounted to only 7% of total homicide exoneration cases, no-crime sexual assault exonerations totaled 14%, and more than half of drug crime exonerations – 55% – involved cases where no crime occurred.

The report cited a variety of factors behind exonerations in no-crime cases, most commonly because perjury or false accusations led to the conviction. ... In most drug crime exonerations, the report said, perjury or false testimony often took the form of drugs planted on a defendant by a witness, a police informant or a police officer.

Further, in at least 37% of no-crime cases, one or more accusers recanted their allegations after conviction.......

...... Virtually every no-crime homicide exoneration resulted from officials mistakenly classifying deaths as murders that were later attributed to suicide or an accident, including eight arson-homicides and 10 cases involving Shaken Baby Syndrome, the report stated.

In a separate study, Georgia State University School of Law professor Russell Covey gathered data from two mass exonerations resulting from major police scandals, one involving the Rampart Division of the Los Angeles Police Department and another in Tulia, Texas. Both scandals resulted in numerous exonerations, virtually all attributed to police perjury, in contrast to most other exonerations which have involved faulty forensics, eyewitness misidentification, jailhouse informants and false confessions.

Covey’s study concluded that such mass exonerations suggest that the number of false convictions obtained through police perjury and misconduct are likely vastly underreported, because, at least in the Rampart and Tulia cases, more than 80% of the wrongful convictions resulted from guilty pleas. Covey noted that while greater attention has been given to DNA and eyewitness identification-based exonerations, “police misconduct is a potentially significant cause of wrongful convictions in its own right.” He recommended that more resources be devoted to examining police procedural reforms.

In general, even though no-crime exonerations receive less public attention than those in which someone else committed the crime, the percentage of no-crime cases among all wrongful convictions has been steadily increasing, according to the Registry. ......

As of December 2015, the Registry listed 1,721 exonerations nationwide; of those, 511 – almost 30% – were listed as cases in which no crime occurred.

Additionally, in 2015 the Registry reported what it called “a substantial increase in the number of Conviction Integrity Units (CIUs)” – units in District Attorneys’ offices that review and investigate post-conviction claims of innocence.

Anonymous said...

exas plan to execute Richard Masterson on Jan 20, he is innocent.
Please sign this petition: https://www.change.org/p/pardon-wrongly-convicted-richard-masterson

Anonymous said...

If you want real reform, follow the money in Harris County. There is an unholy alliance between the Judges, namely their reelection campaigns, and the bonding companies. Rarely is a bondsman on the hook for a bond when the person out on bail skips out. When they are unable to contact the person, they got to the court and get themselves removed from the bond. By the time the warrant is issued, the bonding company has nothing to do with the case, there is a no bond issued by the judge, and the county gets nothing.

Anonymous said...

@ 08:41:00 PM
- They are corrupt thiefs.
- They need to be prosecuted and they are not because the corruption extends to the AG office. They are worse than any mafia organization.
- There is collusion bottom up and top down.
- If one day one of them gets caught, I hope it will have a domino effect. My dream? - they will be prosecuted as organized crime and get 20 years.
I am not holding my breath. Praying for karma, though.