Friday, August 23, 2019

A first-cut reaction to Harris-County DA Kim Ogg's reasons for opposing bail reform

Why does Harris County DA Kim Ogg oppose the proposed bail-reform settlement in Houston? Let's dig into this bit by bit, starting with the four, bullet-pointed reasons stated in her amicus brief filed today. The bulleted items are her language, then my comments follow each of them:
  • Accords unfettered and unreviewable discretion to misdemeanor judges and magistrates to delay (or outright excuse) misdemeanor defendants from appearing in court, contrary to Texas law.
Ogg's claim that the settlement is "contrary to Texas law" is overstated. The case law she quotes to support the argument says judges can waive appearances for "good cause" and leaves that undefined. You could drive a settlement-sized truck through that loophole. Throughout the brief, Ogg expresses the view that judges will use their discretion unreasonably. Where does this distrust of the judiciary come from? Judges have always had extraordinary authority, and historically used it to disproportionately favor outcomes presented to them by prosecutors. She never complained then!
  • Increases institutional dysfunction in the criminal justice system by disproportionately favoring convenience to misdemeanor defendants without regard to the impact on victims, witnesses, and the other stakeholders and the State’s efforts to produce them for hearings and trials.
"Convenience" dramatically understates people's liberty interests and the harms associated with locking them up in cages pretrial. A common theme throughout this brief is her failing to consider the violation of defendants' liberty interests as anything beyond a minor inconvenience, as opposed to the seismic, life-altering disruption it can be IRL.
  • Increases the capability of the defendant to challenge and defeat motions by the State of Texas by and through the District Attorney to set bail at any amount, increase the amount of bail recommended, or impose conditions of bail through exclusion of any mention or committed support for the District Attorney in the Proposed Settlement, while guaranteeing such support for the defendant, Public Defender and all support services in Section VII.
Essentially, this is a request for unfettered power. Her complaint is that a defendant who is not in jail pretrial might be better positioned to successfully mount a defense. The only practical limits on a DA's power are imposed by courts in response to defense motions, and Ogg wants to make sure defendants don't have the "capability"  to "challenge and defeat" her office in contested proceedings. But shouldn't her office lose if a judge decides she's wrong? The criminal-justice system supposedly is adversarial and defendants get to file motions, too.
  • Imposes post-release policies through federal court settlement instead of through democratic processes, essentially foreclosing state and local government from developing constitutionally sound new policies as circumstances change and limited county resources dictate.
This may be the weirdest one: The county commissioners, judges, etc., who were involved in approving the bail settlement were all local elected officials. The only officials not involved in this settlement are legislators. Is Kim Ogg really proposing - after bail reform crashed and burned in Austin this spring - that we put all this on hold and hope that the Texas Legislature can do better in 2021?

Grits may yet go through some or all of the rest of the brief in additional posts; it's really quite a document! When I heard Ogg had filed this, my first reaction was "Why?" And since she answered that question in convenient bullet-point format, I thought this was a good place to start dissecting the topic.

H/T: The Appeal. MORE: See Houston Chronicle coverage.

AND MORE: Defendants filed a brief in response to Ogg's. Here it is.


gravyrug said...

Between this and the constant attempts to recruit more warm bodies into her empire, she sounds more and more like someone who should never be allowed power.

Anonymous said...

I think it should be mandatory for all prosecutors to visit and converse with the Innocence Project. It wouldn't hurt for public defenders to do the same! said...

This surprises me since Kim Ogg has been on the right side of a lot of issues, not least, possession of marijuana. Maybe she's not as "smart on crime" as I assumed.

Anonymous said...

For the detractors of her brief, what do you say to the numbers that defendants on PR bond forfeit almost 5 times as much as those on surety by bond. How bout we teach people not to commit the acts or put themselves in positions to be charged. If you have ever been a victim you would know how hard it is to go thru the process. Why are we giving more consideration to those that make bad decisions than those that had no choice. You talk about everyone having an opportunity to have input on bail reform but that is not true. With the commissioners it’s 3 to 2 every time. Ellis Garcia Hidalgo are the only opinions that matter. How would you feel trying to be apart of something but not actually having a voice. Raddick and Cagle are just there holding a position with no real power because the 3 amigos have already set the outcome before all meetings. This is no different that what white people did to minority’s in the past. But now you can not say anything because then you are a racist. When I talk to other minority’s and explain bail reform they are shocked that people are being released so easily. But because it is not affecting them it is not a priority. As a newly elected official told me “voters are dumb”. I was shocked but it’s true how do we keep up with all the issues. Straight ticket voting made us even dumber because we hoped those that we aligned most with would have our best interest at heart not hidden agendas.

Anonymous said...

5 times more

Anonymous said...

Aside from the obvious prerequisites for the position, Ogg has one thing in common with all her predecessors in that she depends on campaign donations from bondsmen. Bail reform removes an important source of campaign revenue not only for the DA but local judges as well.

Anonymous said...

I think you have glossed over a couple of important points in the brief. The district attorney says that the changes regarding unilateral rescheduling of hearings gives the defendant too much power and will make it almost impossible to prosecute criminal cases in Harris County. Here is an example. The trial court schedules trials 6 months out. On the day of trial, the defendant decides to not show up because he will use one of his 2 misses without penalty. The court reschedules the trial for another six months out and the same thing happens.

Also, the brief alleges that the proposed settlement violates Chapter 22 and 23 of the Texas Code of Criminal Procedure. Chapter 22 sets out the procedure for forfeiting a bond. The settlement proposes to change that procedure by adding a requirement that the state prove a lack of good reason for the failure to appear. A good reason to not show up is not, by itself, a reason to exonerate a bond forfeiture pursuant to article 22.13 of the Texas Code of Criminal Procedure.

The D.A. says that the add-ons to the policy that are separate and a part from the new 9.1 policy violate state law.

The rest of the arguments that you have highlighted are probably somewhat fair.

Anonymous said...

You can read district attorney's brief yourself:

Gritsforbreakfast said...

@11:43, it's linked in the first graph of the post.

As to your other points, the DA gets continuances all the time, it's not going to break the system to let both sides do it.

Also, her brief may "allege" that the settlement violated the law, but literally every judge in town disagrees with her and signed off on the deal. so there's that.

Anonymous said...

Regarding whether the settlement violates state law there is a spectrum of arguments:

1. The Officers, Pasadena Police Chief and the bondsmen argue that the settlement and proposed Consent Decree has numerous violations of the law. These arguments allege that policy 9.1 as well as the addons violate state law. The best one that comes to mind is the requirement that a surety bond can only be used by clear and convincing evidence. This standard violates Article I, section 11 (b) and (c) of the Texas Constitution which sets the standard as preponderance of the evidence. Also, there was a bill in the last Legislative session which tried to change the standard to clear and convincing evidence and it failed. This settlement cannot change Texas law. This is just one example. There are many more.

2. The D.A. alleges that policy 9.1 fixes the problem and that the addons are not needed and only the addons violate the state law.

3. As you say the current judges allege that the policy and the addons comply with state law.

4. However, the old judges would argue the opposite and would side with group 1 arguing that policy 9.1 and the addons all violate state law.

The interesting thing here is that this is not something that can go both ways. One side is right and one side is wrong. If the newly elected judges are right (many of whom had never tried a criminal case before they were arrested) then the county is fine. If the old judges, the police groups and the bondsmen are right then this is really a bad situation that will get much worse. The D.A.'s position seems to be a deliberate attempt to find a middle ground which may backfire because she may find that she has no allies an may be attacked by all sides.

Also, I would point out another issue is that the parties seem to be asking the trial court to codify in the settlement her previous rulings (which have been overturned by the 5th Circuit). For example they are asking her to impose duties and obligations to the Sheriff, but the 5th Circuit has ruled that he is not a proper party to the case.

So while this may be an attempt to end litigation, it looks like this may just start a whole bunch of other litigation. I can imagine a declaratory judgment filed in federal court within days of the settlement being approved alleging that the settlement is overbroad, violates the mandate of the 5th Circuit in the other case and violates state law. When the case gets back to the 5th Circuit, then all bets are off. The 5th Circuit has already issued a stinging opinion to the plaintiffs in response to their motion to vacate the 5th Circuit opinion. So I think the 5th Circuit may have a different opinion about whether the parties can ignore their previous opinions especially given the language used in the denial saying that their opinions remain the law of this district and govern the actions of the district courts.

So I think the stakes are a little bit more than just saying that all the current judges think that the proposed Consent Decree complies with state law. The states are much larger.

Anonymous said...

elected not arrested.

Anonymous said...

As to your point about the D.A. getting continuances all the time, there is a difference between asking the trial court to continue a hearing or trial setting and just not showing up because the court has agreed that they defendant has 2 misses without penalty and 2 others without penalty if the defendant does something within a short period of time.

The trial court can stop gamesmanship if it is the subject of a motion for continuance filed by either the defendant or the State. But the trial court cannot stop it if the policy allows it without restriction or without the need to file a motion for continuance.

Also, the whole concept of having hearings without the defendant being present is not authorized by current Texas law. The only time this is currently allowed is when the defendant has run off and the hearings are being held in abstentia and the defendant cannot complaint about any thing that happens at these hearings.

The two situations are apples to oranges.

Anonymous said...

You should consider contacting a couple of criminal law professors to ask them to give a critical assessment of the arguments about whether the proposed Consent Decree violates Texas Law.

This could possibly be a good public service.

Gritsforbreakfast said...

RE: continuances, it's the same from the perspective of the defendant. When they show up and the DA gets a continuance, they've wasted their time at minimum or may just sit in jail longer, and it's an entirely one-sided dynamic.

My point re: current judges was that Ogg's allegations of illegality are not cut and dried and many reasonable people disagree with her. Moreover, because this is as much a political dispute as anything, I can imagine law professors (not neutral parties, in any event) disagreeing just like Ogg and the judges. The 5th Circuit's opinions are the only ones that matter from a legal perspective (IANAL, so certainly mine do not!), and if you're right about the settlement being challenged, they'll get their chance.

Regardless, Ogg flip flopped rather openly here, and unless the 5th Circuit agrees with her and not the judges on the violate-the-constitution arguments, I didn't find the arguments in her brief very compelling or convincing.

Anonymous said...

I have not seen any response on the merits to the DA’s brief. I have not found any argument that says she is wrong and here is why. It has been crickets. Maybe that will change. Even here there is no response on the merits. Surely someone can point me to something that defends the proposed Consent Decree on the merits. If no one can that would seem to speak volumes.

Anonymous said...

Politically the elected officials can do whatever they want in Harris County. But to bootstrap it into this federal case and say it is constitutionally mandated seems a step too far. This step takes it out of their hands and makes it a federal issue subject to 5th Circuit review. They do not want that. But they need the appearance that they have no choice but to spend this money. I predict this may be their undoing.

Gritsforbreakfast said...

Generally, merits-based responses to legal briefs happen in other legal briefs, not on social media. Your prediction notwithstanding, I suspect this will not be anyone's "undoing." Worst case - if the 5th Circuit won't approve the settlement, they re-do it. How is anyone "undone"? Not sure I see it.

Meanwhile, the case in Dallas is the one to watch more closely - that's going to be the one, IMO, that ends up setting precedent for the rest of the state.

Gritsforbreakfast said...

The judges filed a brief in opposition to Ogg's stance. Here it is. See what you think of their response.

Anonymous said...

Anon 8/28/2019 02:25:00 PM, it's good you brought that up since the numbers generated showing surety bonded suspects coming back to court so much more frequently is from historical data prior to Hurricane Harvey while the PR bond numbers come from the post Harvey mess where the primary courthouse in Harris County has been closed, where judges are bundled together, and where clerks openly admit that many on PR bonds and their lawyers were given wrong dates/times. That most of the data was massaged by some of the bail companies is well known downtown, their shameless attempt to maintain the status quo that lines their pockets so hardily, flying in the face of common sense and the Constitution. It should also be noted that a multitude of solutions have been tried since Harvey, many under the GOP stewardship of the county clearly trying to disregard warning from Judge Rosenthal, who felt the need to have almost everyone released to convince everyone she meant business.

Moving forward, the risk based assessment will also need some tweaking but it is already a darned sight fairer and more fiscally responsible. Does that mean the often shifty types from the bail industry will give up trying to buy influence in political campaigns or generate more false comparisons? No, but now that they've been revealed as snake oil salesmen, their ability to trick people into going backwards is greatly reduced.

Gritsforbreakfast said...

N.b. the Chron editorial declaring, "in many cases the remedies for her objections are already addressed by the proposed settlement. And her most serious charge, that the settlement violates Texas law, was questioned by legal experts we spoke with."