Throwing in the towel (finally)

Now it's over.

Yesterday the lawsuit filed by the former Republican misdemeanor judges was dismissed on a motion filed by the 15 incoming Democratic judges. Judge Darrell Jordan was never a part of the original lawsuit - he was later joined in his opposition by Mike Fields, the former judge in Court 14.

The dismissal of the suit means that Harris County elected officials will stop wasting taxpayer money defending an unconstitutional bail system. The outgoing judges fought tooth and nail to walk back US District Judge Lee Rosenthal's order. They knew that the leverage the courts had over indigent defendants was based on a bail system designed to keep them behind bars.

Under the old rules the county magistrates (who preside over probable cause hearings at the jail) would take out a chart, look up the offense, check for priors and then find the corresponding bail amount. Never once did the magistrate bother to ask if the defendant could afford bail. Not once did the magistrate bother to ask what amount, if any, could the defendant afford. The defendants weren't represented by counsel and had no idea they could ask for a personal bond (not that any of the magistrates would have given anyone such a bond).

This system insured that indigent defendants would jump at the opportunity to dispose of their cases for a guilty plea and time served. Court-appointed counsel were only too willing to go along with this charade of justice - lest they piss off the court that was paying them.

The result was a plea mill. Defendants would be led into the courtroom like a chain gang and would stand in front of the judge. The judge would spend no more than a minute or two on each case and the chain gang would be led back into the holdover.

This system guaranteed convictions for prosecutors, fewer pending cases for the judges and convictions for the defendants.

Those days are now in the past. Defendants who couldn't afford to post bond in the past will now be released on personal bonds and will be able to assist in their defense. They will be able to sleep in their own beds, see their families and go to their jobs.

No longer will a misdemeanor defendant have to make that agonizing decision on whether to fight his case or cop a plea to get out of jail.

A tip of my hat to the new judges who made this happen.

Fine! I'm going to take my ball and go home!

Two juvenile judges in Harris County accounted for one out of every five commitments in the state.  Glenn Devlin and John Phillips, both of whom were voted out of office last week, sent 199 kids, 96% of whom were children of color, to state juvenile detention facilities in 2017.

As much as I'd like to think that the voters' decision to oust them from their seats was related in some way to the wholesale warehousing of poor African-American and Latino youth, I know they were just the "victims" of the blue wave that washed over Harris County.

But (soon-to-be-ex) Judge Devlin upped the ante when he released the majority of juveniles who appeared before him after they answered "No" to his question of whether they would kill anyone if he released them. Now I'm certain that most of the kids in question should have been released to their parents' custody in the first place given Judge Devlin's proclivities, but his actions in court were those of a petulant child who had a toy taken away from him.

And in the civil courthouse, another soon-to-be-former judge, Charley Prine, decided he would go the petty route after being voted out of office. It seems that the judge-elect, Angela Graves-Harrington, in the 246th District Court approached the judge to ask about the transition process. Instead of being graceful in defeat, Judge Prine told her to get out of his courtroom and threatened to charge her with trespassing if she returned. Perhaps someone needs to let Judge Prine know that the courtroom in question doesn't belong to him but belongs, instead, to the residents of Harris County.

These are two examples of the fine jurists Republican voters are lamenting because they lost an election. There are two of the judges who lost their job because voters took the easy way out (according to many soon-to-be-ex Republican officeholders) and cast straight ticket votes. These are two of the fine judges, according to Republicans, who lost their jobs as a consequence of partisan elections.

Needless to say, neither judge had any comment when questioned.

Make of that what you will.

The aftermath

The blue wave hit Harris County (and even our suburban neighbors to the southwest) yesterday. The Democrats swept every county-wide seat, including all of the county civil and criminal benches, the family court benches, the juvenile court benches and every district court bench up for election.

Today should be an interesting day at the courthouse.

Yesterday's results will likely mean an end to the county's lawsuit to fight bail reform. If you'll recall, 14 of the 15 Republican judges were fighting to preserve a system by which poor defendants were coerced into pleading guilty in order to get out of jail. Only Darrell Jordan and Mike Fields, the two African-American judges in the misdemeanor courts, chose the honorable route.

I am sure we will hear quite a bit from a couple of the ousted judges about how much of a revolving door the courts have become since US District Judge Lee Rosenthal issued her ruling. When you hear it, just remember the source.

The judges fighting the lawsuit have cost Harris County over $6 million so far. But, hey, they are all white Republicans and it wasn't their money they were spending.

And, yes, there were some good judges who will be stepping down at the end of the year. But so fucking what? Not one of them was elected because the folks of Harris County thought they were or would be excellent jurists. Not one of them was elected because they presented voters with a vision of how the courts should operate. They took their seats on the bench because they happened to have an R after their name in an election in which the Republican at the top of the ballot won in Harris County.

For every one of these good judges, there was plenty of jetsam and flotsam. As imperfect as our system of selecting judges is in Texas, it certainly beats any of the alternatives. Party affiliations cut down on corruption in the general election because candidates don't have to raise large sums of money (in fact, a judicial candidate doesn't need to spend a dime after winning the primary because he or she will get about the same percentage of the vote as the candidate at the top of the ballot for their party).

I don't think there is anyone who seriously thinks a better system would be to allow the governor to appoint judges who would stand for periodic retention elections.

Good luck to the new judges and may y'all be lamented as good judges done wrong should the pendulum swing back to the right.

A short postscript...

After posting yesterday's entry I went out to the mailbox and found yet another stack of mailers from the Republican party for the judicial races. Each of them exhorted folks to vote for the Republican candidates calling them "exceptionally qualified" or "principled conservatives."

No other reason was given for why anyone should vote for them. The mailers encourage folks just to vote Republican straight down the line.

So I really don't want to hear any whining from anyone about good judges being swept out with the bad this time around. You don't get to have it both ways at the ballot box. You don't get to urge folks to vote straight ticket on the one hand and decry partisan elections on the other.

Enough of the hand-wringing

Oh it's that time of the year. The time for those who see a sweep of local elections to do their hand-wringing about the number of good judges who are about to be booted off the bench just because of their political affiliation.

There is a very strong possibility of a Democratic sweep in Harris County due to the power that Houston holds when the masses are riled up for an election. There were near sweeps in 2008 and 2012 when Obama's presence on the ballot cranked the turnout up in the city. The Republicans swept in the off-year elections when the masses found it hard to give a damn.

Now we have an off-year election in which the masses are hyped thanks to Donald Trump and his daily dose of stupidity and hot air. Off-year elections have tended to favor the party out of power and this year should be no exception.

As y'all know, in Texas we hold partisan elections for judges. It's a pretty lousy system if you stop and think about it, but it's better than the alternatives. Come on, people, do y'all really want the governor appointing judges for what would effectively be life terms since retention elections are the surest bet this side of Alabama and the points?

If we switched to non-partisan races as some have suggested (and this time around it's the Republicans hitching their horses to that wagon), corruption would rule the day as the only folks who would care enough to donate to the races would be attorneys practicing in those courts. At least now with party affiliations judicial candidates don't have to run much of a campaign as the results of each of the judicial races will fall pretty much in line with how Harris County goes on the top of the ballot (and this should be the same in every county throughout the state).

Here's my prediction for what's going to happen next week. Some very qualified and professional judges will lose their jobs. Some folks who have no business on the bench will lose their jobs. Some very qualified attorneys will be elected. Some folks who have no business on the bench will be elected. Guess what? That's what happens every election.

I was speaking with a colleague the other day and she was lamenting the fact that some good judges were going to lose and that it would take a couple of years for the new judges to learn the ropes. That may very well be the case, but if you choose a job in which you rely on the public to re-hire you every four years, that's what happens.

But here's the problem I have with her opinion. There were some very well qualified judges who lost their jobs when the Republicans came to power in Harris County. Not one judge on the bench in Harris County is sitting there because the public thought he or she was a great jurist. They are sitting on that bench because they chose the right election to have an R or a D after their name. Some of these folks went on to become very good judges - and some were terrible judges.

I have no sympathy for any judge running as Republican, whether they be an incumbent or not, because they are running under the banner of a party whose leader (and his devotees) promotes racism, bigotry and discrimination. Their leader has no regard for the truth and blatantly lies whenever it suits him. Their leader has referred to Nazis as good people.

And what have the Republican judicial candidates in Harris County said about their party's leader? Absolutely nothing. They either agree with him or they don't have the guts to stand up to what he promotes. Guess what? You don't get to hangout in the GOP tent for the benefits and then escape the consequences.

So I, for one, will not shed any tears come Wednesday morning.

Is this what it means to inhale?

The mailers from the Republican Party are coming hot and heavy as we approach Election Day. The latest broadside warns of chaos in the courthouse should the Democrats sweep the judicial races.

Once again I must address the warning that folks aren't showing up for their court dates. Blaming that on Democratic judges is more than a bit misleading. Let's see, a lawsuit was filed in Harris County challenging the constitutionality of the bond schedule in the misdemeanor courts. The plaintiff's won the lawsuit and the sitting Republican judges appealed.

As part of that lawsuit, the County was ordered to release any defendant in a non-violent misdemeanor case in which that defendant was not taken before a magistrate for a probable cause determination within 48 hours. That magistrate was also tasked with the job of determining the appropriate bond for the defendant based upon the nature of the offense and the defendant's ability to post bond.

If after seeing the magistrate, Pretrial Services determined that the defendant was a good candidate for pretrial release, they were released. Otherwise they sat behind bars until they posted bond.

The procedure in the felony courts has remained largely unchanged since there tend to be more issues regarding the safety of the community and the seriousness of the alleged offense.

And as to concerns about the punishments meted out, I would remind the folks who put out this bullshit that 15 of the 16 judges on the misdemeanor bench are Republicans. Furthermore, the vast majority of cases are resolved through plea bargains in which the only role of the judge is to decide whether or not to accept the deal. In the last 13 years I have had only one plea deal rejected by the judge.

The other issue on the broadside has to do with damages in civil court. Republicans are worried about Democrats sitting on the civil benches and hearing cases involving monetary damages. Their biggest fear is that Democratic judges will determine what is, and what isn't, a frivolous case.

Well, I guess one's level of concern would be strongly correlated to one's view as to what is and isn't a frivolous matter. Being that state legislatures long ago became entangled in the entrenched interests of industry and banks, it has long been the case that the only path one had to redress injury were the courts. When someone says that Democrats would award too much in damages in frivolous suits, what they are really saying is that those judges would hold corporations and powerful business interests accountable for their actions and the damages they cause.

The other thing that most folks don't know is that, quite often, parties settle cases for an amount that differs from the award in order to achieve finality, collect what they can and to avoid the time and cost of the appeals process.

Blowing smoke at the courthouse

Oh, campaign season is all around us. The other day I got a mailer from the Republican Party of Texas promoting Republican judges. I suppose for the ordinary person who hasn't the slightest clue how the criminal (in)justice system works, the mailer might have an effect.

But not really. You see, the results in most judicial races mirrors that of the races at the top of the ballot. There might be a difference of a couple percentage points but, in general, the results are pretty much in line in Harris County.

The mailer tells us that "Republican judges follow the law" and implore folks to "Keep Harris County safe by voting for Republican judges."

Those tag lines are horridly misleading because many judges on the ballot have absolutely nothing to do with criminal law and the average citizen hasn't a clue as to who sits on a civil bench and who sits on a criminal bench.

The mailer states that upwards of 95% of the judges endorsed by police organizations are Republican. I don't doubt that - considering that the Republicans have pretty much owned the county criminal benches for 20 years or more. And many of these judges have track records of being friendly to the state (since too many to count went right from the DA's office to the bench) - they will give the police the benefit of the doubt when it comes to suppression issues.

The mailer also tells us that some criminals have been released from jail (on bond) or have been given probation (through plea bargains made between defense attorneys and prosecutors) and then later committed other crimes.

But, wait a second. Aren't the Republicans supposed to be stingy with the purse strings? Locking up more folks when the jails are already at capacity means building new jails or paying other counties to house folks awaiting trial. How on earth is that being fiscally responsible?

Then, of course, there is this whole matter of the 8th Amendment and the lawsuit challenging the way bonds are set in Harris County. The county has continually lost at every step of the process yet 14 of the 15 Republican judges have continued the fight to defend an unconstitutional system at a cost of several million dollars.

I guess, what the hell, it's not their money so another round of briefs and depositions all around.

So, if you want judges who will continue to spend taxpayer money defending a bad system who use the old bond schedule as a way to coerce pleas from the poor, and if you want judges who are going to spend taxpayer money housing inmates who haven't been convicted of anything, then, yes, by all means, vote for the Republican candidates on the November ballot.

A senseless death in the Harris County Jail

Debora Ann Lyons is the second inmate in the Harris County Jail to commit suicide in the last month. Ms. Lyons, who was taken into custody on July 22, 2018, hung herself on Tuesday night.

Ms. Lyons was arrested on misdemeanor theft charge. However, based upon her prior convictions, she was charged with a felony. Now, as an aside, I understand why the legislature allows prosecutors to enhance some offenses based upon prior convictions. The theory being that if you've been in trouble once or twice for the same offense the punishment needs to be a bit more severe. But, this doesn't work out so well on petty thefts.

I've had a client before who was charged with shoplifting toiletries from a drug store. What he did warranted no more than a Class B charge. But, since he had multiple theft convictions in the past, that little misdemeanor theft ended up landing him in district court with a felony charge. And I don't care how tough on crime you are, charging someone with felony theft over less than $100 worth of toiletries doesn't serve anyone's interests. Prison should be reserved for those who have done heinous crimes, sending someone to prison for petty theft is a waste of resources.

On the date she was charged, bail was set at $1,500. Ms. Lyons didn't have that kind of money -- but because the felony courts still rely on a piece of paper to determine how to set bond, that number was written down on a piece of paper without regard to Ms. Lyons' ability to pay.

Sound familiar?

It should.

This is the system which 14 Republican misdemeanor judges in Harris County are fighting to keep in place. Thus far they have spent over $6 million of taxpayer's money to defend a cash bail system that is unconstitutional. If US District Judge Lee Rosenthal's order applied to the district courts, Ms. Lyons would have been eligible for release on a PR bond within 48 hours of her arrest. Instead she sat in jail for nearly a month before she took her life.

The ultimate irony, of course, is that she was granted a PR bond on Wednesday -- the day after she hung herself.

So, even though this case was filed in district court as a felony, I still would like to hear one of the Republican misdemeanor judges defend the old system. It's the old system that killed Ms. Lyons. The last time I checked, the penalty for theft in Texas wasn't death.

It should come as no surprise to anyone that the 14 Republican misdemeanor judges who are fighting bail reform are all white. If you know anything about Harris County you also know that the vast majority of the people affected by bail reform aren't white. Racism, you see, plays real well out in the suburbs where the Republicans pick up most of their votes. And for all the talk you will hear from those judges, they aren't fighting bail reform to protect the public -- they are fighting it because the old system gave the state coercive power over minority defendants who couldn't afford to post bond. They were forced to plead guilty in order to get out of jail.

And, if they happened to get in trouble later, those convictions came back to bite them in the ass as their new cases were enhanced.

Ms. Lyons died because Harris County is doing everything it can to preserve a coercive system to force the poor to plead guilty regardless of the facts of their cases so they can get on with their lives.

In case you've forgotten the names of the judges who are fighting to preserve an unconstitutional system, here they are again:

• Paula Goodhart, County Criminal Court at Law No. 1
• Bill Harmon, County Criminal Court at Law No. 2
• Natalie Fleming, County Criminal Court at Law No. 3
• John Clinton, County Criminal Court at Law No. 4
• Margaret Harris, County Criminal Court at Law No. 5
• Larry Standley, County Criminal Court at Law No. 6
• Pam Derbyshire, County Criminal Court at Law No. 7
• Jay Karahan, County Criminal Court at Law No. 8
• Analia Wilkerson, County Criminal Court at Law No. 9
• Dan Spjut, County Criminal Court at Law No. 10
• Diane Bull, County Criminal Court at Law No. 11
• Robin Brown, County Criminal Court at Law No. 12
• Don Smyth, County Criminal Court at Law No. 13
• Jean Spradling, County Criminal Court at Law No. 15

The next time you see any of these judges, ask them why they are defending an unconstitutional cash bail system. Ask them why they are opposed to bail being set in a timely matter based upon the defendant's ability to pay. Ask them why they are wasting your tax dollars fighting bail reform.

Ask them why they haven't joined Judge Darrell Jordan and Judge Mike Fields on the other side of the coin.

Debora Ann Lyons was no angel. But she was someone's daughter. She was someone's mother. She had a family and she had friends. And she damn well didn't deserve to die in the Harris County Jail.

Former judge sanctioned for jailing a rape victim

On December 8, 2014, Jenny Doe (her real name may be found in court records but I choose not to publish it), was called to testify in the rape trial of Keith Hendricks in the 176th District Court in Harris County. Mr. Hendricks was on trial for raping Jane Doe.

While on the stand testifying at trial, Ms. Doe had a mental breakdown (she had been diagnosed with bipolar disorder). Fearing that his witness wouldn't show up to testify again, the prosecutor, Nicolas Socias, asked the judge, Stacy Bond, to issue an attachment and to order Ms. Doe taken into custody.

The judge set her bond at $10,000. That's right, Jenny hadn't been charged with a crime yet she was being held behind bars because she couldn't post a $10,000 bond.

Ms. Doe was first taken to the hospital to be checked out -- she was then booked into the Harris County Jail. Making matters even worse, someone at the jail fucked up and entered that she was charged with felony sexual assault. Because no one at the jail knew she was being held as a witness, she was placed in the general population. While in jail she got into at least one fight with an inmate. She was later charged with assaulting a guard, though that case was later dismissed.

Jenny was not called back to the stand until January 11, 2015. Let that just sink in for a bit. Here we have the victim of a sexual assault who was taken into custody and held against her will for over a month because she had a mental breakdown on the stand. And even though she testified on the 11th, she was held for an additional three days before being released.

Texas law does permit the court to order a witness taken into custody if the state issuing the subpoena has reason to believe that a witness residing in the county is on the verge of moving out of the county or if an out-of-county witness failed to appear when subpoenaed.

Neither of those conditions were met in this case. Jenny resided outside Harris County and appeared without being subpoenaed. Mr. Socias might have been worried about her not coming back to testify after her breakdown -- but that didn't justify his request to have her attached. It certainly didn't warrant her being held in jail for over a month.

Now Stacy Bond, who is running for the bench in the 185th, has been sanctioned with a public admonition for violating the Code of Judicial Conduct.

Ms. Bond's excuse is she was mistaken in signing a badly worded application for a bench warrant. The application would have been filled out by the prosecutor, Mr. Socias.

You would think that the least the judge could have done was read the application before signing off on it. Actually you would think the judge might have consulted Section 24 of the Texas Code of Criminal Procedure to see whether the action was warranted. At the very least you would have expected a judge to show just the slightest bit of compassion to a witness who was having a very bad day. But, hell, once you decide to treat those accused of crime as garbage, it's not a far walk to treat everyone like that.

Ms. Bond is running as a Republican in the upcoming election. I'm sure that many Republican voters in the suburbs don't give a flying fuck what Ms. Bond did on the bench in the past. The only criterion for their vote is that the candidate have an "R" after their name.

This is the problem with electing judges. No one outside the courthouse knows who the candidates are. No one outside the courthouse has any idea what type of attorney or judge a candidate is. No one outside the courthouse knows what goes on behind the scenes. And this is why we end up with some judges in Texas who aren't capable of walking and chewing gum at the same time.

(Yes, Galveston County, I'm talking about the mindless wingnuts on the mainland who voted straight-ticket Republican and ushered in the strange world of Christopher Dupuy, the single most unqualified person I've ever seen on the bench.)

Of course appointing judges brings about an entirely different set of problems that can be just as bad as electing them.

Ms. Bond doesn't deserve to sit on the bench anymore. I just hope this public reprimand resonates with voters in the 'burbs when they go to cast their ballots in November.

Fighting for injustice

Once again the Republican misdemeanor judges in Harris County have their panties in a wad. And, once again, it has to do with a federal judge telling them that the little bail bond scheme they followed for years is unconstitutional and must be changed.

The judges are upset because US District Judge Lee Rosenthal's revised order will force the county to release certain non-violent offenders within a certain time period. The judges claim this will endanger the public's safety.

Bullshit. What it will do is remove the coercive power the state had on criminal defendants to force them to plead guilty to crimes they didn't commit.

The way Harris County operated for years was to follow a bail bond schedule that didn't take the defendant's financial circumstances into effect when setting bail. The only things that mattered were the type of offense and whether the defendant had any prior convictions. Bond was set automatically by a piece of paper and thousands of folks were held in custody until they resolved their cases -- usually by pleading guilty in a mass plea for time served or some other token sentence.

Prosecutors got their convictions. Judges got cases off their dockets. And since those accused of criminal acts don't have an effective lobby - no one gave a fuck.

Anyone who has spent any time in this racket knows that it is a hell of a lot easier to fight one's case if one is not behind bars. When you're behind bars you're not working, not earning money, not seeing your family and all you can do is think about how many more days this hell is going to last.

When you're out on bond you can work and earn money. You sleep in your own bed. You see your friends and family. You can speak with you attorney face to face without a thick sheet of plexiglass between you. You're also not under the pressure to resolve the case quickly because you are able to resume your normal life.

And the misdemeanor judges in Harris County hate this. They hate the fact that defendants out on bond are able to fight their cases. They hate the fact that the state doesn't have the same coercive hold on them as they do on the defendants in the jumpsuits.

Well, let's be straight about one thing. It's unfair to lump all of the misdemeanor judges into the same pile. Darrell Jordan, a Democrat, and Michael Fields, a Republican, aren't part of the ongoing lawsuit. I don't think it's a coincidence that they are the only two black judges on the misdemeanor bench in Harris County.

Most of the defendants in the misdemeanor courts are black and Latino. These are the folks that conservative white voters in the suburbs have been taught to hate. As anyone who understands Harris County politics knows, Republican candidates rely on those suburban voters to get elected because they don't have a chance within the Houston city limits.

The judges who continue to spend our tax money to defend an unconstitutional bail bond system are spreading fear and hatred among their suburban supporters in a desperate measure to build up some sort of support for Republican candidates in what could very easily be a bloodbath for the wingnuts.

The Republican judges (minus Judge Fields) are furiously blowing on their dog whistles. And they are doing it, not to maintain public safety, but to maintain a criminal (in)justice system that targets the poor and those with dark skin.

And for those keeping tabs, the current bill for fighting the lawsuit is $6.6 million. How's that for financial responsibility?

Houston's white elephant

One of the casualties of Hurricane Harvey was the Harris County Criminal Justice Center - a 20-story white elephant that has had a laundry list of problems since it opened less than 20 years ago.

Now comes word that it is going to cost some $86 million to repair and upgrade the building before it can be re-opened to the public. But, as a colleague pointed out this morning on Twitter, no bids have gone out for the repair work and the idea that the jobs can be bid out and completed in less than 2 years seems a little bit absurd.

The design of the building and the placement of offices and courtrooms never made much sense to anyone who has spent any amount of time inside the courthouse. The building has long been plagued with long lines at security and at the elevators as well as maintenance issues with those same elevators. Stairwells - necessary in case the building needed to be evacuated - were located behind closed doors and out of reach for anyone other than court staff or attorneys.

And while I understand that it is cheaper to build upward in Houston rather than outward, the basic design of a skyscraper and the functionality of a courthouse aren't congruent.

But these concerns are ignored because there is no viable constituency for a new courthouse. The taxpayers don't want to spend any additional money building a new courthouse for the benefit of criminal defendants. Unless they find themselves inside the building, they have no clue how useless it is.

So now for at least the next year-and-a-half (and likely a lot longer), misdemeanor courts will continue to be doubled up in the decrepit old Family Law Center while defendants who can't post bond will sit and wait for even longer in the county jail for their day in court. And that day will only get bumped back further and further when you consider that there is one trial court for every four misdemeanor courts. You do the math. Attorneys and defendants will continue to have to depend on two elevators to service 7 floors and 17 courts.

The felony courts will continue their uneasy alliance with the family courts in the Civil Courthouse where the elevators are proving to be as inadequate as those in the old criminal courthouse.

Attorneys and defendants will continue having to deal with split dockets in multiple courthouses and the inherent delays.

And good luck figuring out where the hell the district clerks or prosecutors are since they are spread over multiple office buildings throughout the city.

This is the living embodiment of insanity -- doing the same thing over and over again thinking it will somehow come out different this one time.

See also:

"Proposal for problem-plagued criminal justice center: Start Over," Chris Tritico, Houston Chronicle (10/16/17)

Harris County Chief Public Defender under fire

Alex Brunin is the Chief Public Defender for Harris County. His clientele consists of those who haven't the money to hire an attorney to defend themselves in criminal court.

He is now being accused by Steve Radack, a Harris County Commissioner, of leaking confidential records to attorneys fighting the county on the way bonds are set for defendants. Prior to Federal District Judge Lee Rosenthal's finding that both the misdemeanor and felony bond schedules were unconstitutional as they did not take into account a defendant's ability to pay, a magistrate would ask the prosecutor what the defendant was charged with, whether there were any enhancements and whether the defendant had a prior record. Based on the answers to the those questions, the magistrate traced his or her finger on a chart and set the defendant's bond.

The result was that almost three-quarters of the people held in the Harris County Jail on any given day hadn't been convicted and were awaiting resolution of their cases. That is a mind-blowing number. And totally fucked up.

As head of the Public Defender's Office, Alex Bunin finds himself caught between a rock and a hard place. The office is funded by a grant. And, as I know I've written before, once that grant money starts to run out the case loads for everyone in the office will rise as will the pressure to plead out defendants. Mr. Bunin knows he will get no favors from Commissioner's Court. He's a thorn in the side of those who want to return to the days of the plea mill.

His position depends upon the whims of politicians from outside the Houston city limits - in other words, politicians who represent wealthy white suburbanites who want nothing to do with guaranteeing the constitutional rights of those accused of crime. Mr. Bunin has little or no political capital as indigent defendants don't have a voice in Harris County politics.

Make no mistake about it, this isn't about whether or not Mr. Bunin passed on information, confidential or otherwise, to attorneys fighting about the Harris County bond schedule, this is about a man who is doing his best to give voice to those who don't have one. That, in a nutshell, is Alex Bunin's sin. He dared to provide a vigorous defense for those who had nothing.

Thus far Harris County has spent in the neighborhood of $6 million fighting to preserve a bail system that a conservative federal judge and the most conservative appellate court have found to be unconstitutional. And yet the county continues to fight to preserve a system that led to coerced mass pleas.

Two judges, Mike Fields and Darrell Jordan, have urged the county to drop the fight and to work on finding a solution. Thus far their words have fallen on deaf ears.

But now Mr. Radack has a scapegoat. Instead of defending the money spent on defending the indefensible, he can hold Alex Bunin up to the conservative mates and blame him for the lawsuit and the changes to the bail system. But there's even more to it.

If Mr. Radack and his cabal can get rid of Alex Bunin they can replace him with someone who isn't as committed to defending the indigent. He can install someone who is more interested in the appearance of "fairness" than in actual reform. He can install someone who will be more than happy to carry his water bucket, increase case loads and pressure his staff to plead more cases out.

After a testy meeting yesterday, Mr. Bunin wasn't fired, but the matter was referred to the county public defender board for further recommendation. As was to be expected, the county commissioners who represented mostly white suburbanites were most critical of Mr. Bunin's actions.

And that's what this is ultimately all about -- a return to the days when court-appointed attorneys were more than happy to team up with the judge and prosecutor to work cases out without much effort or cost.

Captains (not so) courageous

Let me just say it now, politicians, by and large, are not the most courageous folks out there. In fact they are pretty downright cowardly because they are too scared of pissing off small groups of voters.

It's only once a politician decides (or, as you will see later, has it decided for them) to leave public office that they regain the ability to speak what they believe. We've seen it with Republican congressmen who wouldn't criticize Donald Trump until after they announced their retirement from office.

In Harris County right wing political organizations in the northwestern part of the county seem to rule the roost when it comes to primary elections. These groups publish "slates" of candidates for their wingnut readers to vote for. Most of these groups put their endorsement for sale to the highest bidder. Others "sell" their endorsement to the candidate that toes their line.

These newsletter endorsements are important for any budding Republican officeholder in Harris County since very few folks in the electorate have the slightest idea who any of the judicial candidates are - and most don't care so long as they have an R after their name on the ballot.

Jay Karahan has been the judge of Harris County Criminal Court at Law No. 8 since 2003. As a result of this month's primary election, he will no longer be a judge come January 1. Over the past 16 years he has been involved in primary and general electoral politics in Harris County. He knows how the game is played. And not once in the past 16 years has he stood up and complained about the way the Republicans decide who will represent them in the general election.

At least not until now.

In his guest column in Big Jolly Times (a local wingnut blog), Judge Karahan goes off on the backroom politics that determine who gets endorsed and who doesn't. He states in his piece that he wrote it long before he lost his primary election, but it never saw the light of day until after the smoke had cleared.

There is much merit in what he has to say and there is much to criticize about kingmakers who demand that judicial candidates kowtow to their right wing views instead of following the law. But why are we only seeing this after Judge Karahan has been retired by the wealthy whites up in the northwestern suburbs of Houston?

The outrage he feels is real, but it comes across as sour grapes after a defeat.

And now we have the story going around that Gov. Greg Abbott was opposed to the bathroom bill that wingut Republicans were pushing during the last legislative session. Funny how the guv'nor never came out and said he was against the bill. You see, that would have taken courage. That would have required going against the wingnuts and Teabaggers who dominate the Republican party in Texas. So Gov. Abbott apparently decided to keep it on the down low. But then, how would he explain placing the bill on the agenda for the special legislative session that summer. Something just isn't adding up.

If you want to be an agent for change, you have to be willing to stand up and be castigated for what you say. You have to be willing to go down in flames at the polls if that's the price to be paid for being true to yourself. Colin Kaepernick made a decision to protest against police violence and brutality. That decision cost him his career.

His decision to take that knee was courageous. Exposing the dirty underbelly of local politics after losing an election isn't.

It's a swing and a miss

And it's strike two against Harris County in their efforts to maintain an unconstitutional and discriminatory bail policy in place.

Last June, US District Judge Lee Rosenthal ordered Harris County to change the way in which those arrested for non-violent misdemeanors are treated. Out went the bond schedule that failed to take into account the individual financial circumstances of the accused. In came a system in which folks who couldn't afford bail were released on personal bonds and pretrial release.

Fourteen of the county misdemeanor judges joined together to challenge Judge Rosenthal's order. As noted here, Judge Mike Fields removed himself from the rest of the Republican judges recently.

Now the Fifth US Circuit Court of Appeals has issued its ruling and it affirmed Judge Rosenthal's order. This should be the death blow to the county's attempt to reinstitute the plea mill as no one would ever come to the conclusion that the Fifth Circuit Court is anything other than conservative at heart.

While the Court stopped short of saying that everyone charged with a misdemeanor has the right to pre-trial release, Harris County is required to conduct an individual assessment of each detainee.

The stance of the judges fighting to overturn Judge Rosenthal's order should come as quite jarring when compared to their tame campaign promises to see that justice is done.  The justice these judges have in mind is coercing defendants who can't afford to post bond to plead guilty to criminal acts without having the opportunity to investigate the facts and to hold the state to its burden of proof.

Now the leverage the judges and prosecutors had over many defendants is gone. And that's a very good thing, no matter what the Republican judges tell you between now and November.

First the plea, then the admonishments

On Friday members of the Harris County Criminal Lawyers' Association stood outside Judge Michael Fields' courtroom handing out 3x5 cards listing the rights a criminal defendant has under the 5th and 6th Amendments. They did this to protect unrepresented defendants making their first appearance from Judge Fields.

If you are taken into custody in Harris County and aren't bailed out immediately you will probably find yourself standing in a room staring at a video monitor as a magistrate informs you that it would be best if you kept your damn mouth shut. He then asks if you want to plead guilty. If not, a plea of not guilty is entered and you are returned to your holding cell until you bond out or until you are moved to a pod.

For those who get bonded out earlier they are released from the jail and handed a piece of paper telling them when and where they need to appear. At that first appearance in court they are called up to the bench and the judge tells them it would be best if they would keep their damn mouths shut. If they've bonded out it's assumed that they are pleading not guilty.

Unlike what you see on television or in the movies. There is no dramatic scene where a defendant is brought into a courtroom with an attorney to enter a not guilty plea and argue over the amount of bond required to get out of jail. You see, we have a bond schedule in Harris County that takes the guesswork right out of the entire process. There's no need to talk about mitigating circumstances or a defendant's clean record or ability to pay, all a magistrate has to do is look down the list and set bail.

But then we come to the 11th floor of the Harris County Criminal (In)justice Center and the courtroom for County Criminal Court at Law No. 14. That's where the rules we follow in the normal world don't apply. It can be like stepping out into another world.

This is a court in which every defendant charged with driving while intoxicated will be ordered to install an ignition interlock device on their car -- even the one who blew 0.0 who was suspected of having smoked marijuana. Let's just forget about the fact that the interlock device can't detect THC in a person's breath. But, dammit, if he was charged with DWI we're going with the interlock anyway. And heaven help the poor soul who "tripped the wire" because he had used mouthwash just before starting his car. If anything bad comes back on that report he's going to jail overnight to teach him the lesson that neither the state nor its devices are ever wrong.

Step into the courtroom and you will see Judge Fields call up all the defendants making their first appearances who bonded out and who haven't hired attorneys. And then, without letting the people in front of him know they have the right to remain silent and the right to consult with counsel, he asks them how they wish to plead. Right there. No one is provided with any information about the consequences of pleading guilty and no one is warned of the potential collateral consequences of such a plea.

And once it's entered, it's final. No turning back. No changing your mind.

A judge isn't part of the prosecution's team. A judge is supposed to a be a neutral and unbiased referee who's sole job is to make certain that a defendant's due process rights are protected and that both sides follow the rules of evidence and procedure during the course of the proceedings. Whether a person pleads guilty or not is of no concern to the judge - at least it shouldn't be. In Texas we are all guaranteed the right to a jury trial in a criminal matter. Defendants and their attorneys shouldn't have to fight the judge to exercise that right.

The entire criminal (in)justice system in Harris County is designed to coerce defendants into pleading guilty. Whether it's excessive bail or bond conditions; or whether it's judges who want to prevent folks from exercising their right to a jury trial; the game is the same.

Judge Fields isn't the only one playing this game. But he was certainly the most egregious this time around.

Traffic court and the rules of grammar

I was a bit curious tonight about a couple of things so I picked up my daughter's school dictionary.

The Scott, Foresman Advanced Dictionary said "and" was a coordinating conjunction that connected "words, phrases and clauses of grammatically equivalent constructions." One of the definitions was "added to." The example given was a math problem.

I think we all understand that when we use the word and we are including both the word or phrase before it and the word or phrase after it. Logically and means that any conditions before or after and are necessary.

The same dictionary said that or is a word that expresses a choice.

And that brings us to today's story.

Yesterday I was in justice court on a traffic ticket for a long-time client. She was charged with speeding in a school zone. She was accused of driving 30 mph in that school zone. It was our contention, however, that the complaint was fatally defective because it also alleged she was driving more than 30 mph - an impossibility.

The complaint alleged that my client

"...did then and there, unlawfully, operate a motor vehicle on a public street or highway in Harris County, Texas, at 30 miles per hour, which speed was greater than was reasonable and prudent under the circumstances then existing, and the speed was more than 30 miles per hour in an urban district, and more than 20 miles per hour which was the lawful maximum prima facie speed limit posted by sign."

I told the prosecutor the complaint was defective months ago. He told me they would amend it. We went back to court and it hadn't been changed. I told the new prosecutor that the complaint was defective because if you're driving 30 mph, then you can't be driving at a speed greater than 30 mph.

He refused to budge, making some argument about alleging in the conjunctive and proving up in the disjunctive. I told him, in legalese, that he was full of it. And means and, not or.

I then decided to approach the judge, Dale Gorczynski whose sole apparent qualification for the bench was that he was term-limited out of his seat on the Houston city council (where he did little or nothing to distinguish himself from so many other anonymous faces who have "served" the city.

The judge looked at the complaint. I made my argument, the prosecutor made an argument that defied logic and redefined the meaning of the word and. I agreed one could plead any number of alternative ways in which someone could violate the law - but you had to plead them in separate paragraphs or you had to use the word or.

The judge seemed quite puzzled by the entire argument. He asked his clerk if this was the same complaint that had been drafted by the city attorney's office. He asked if it were the same complaint that had been approved by the 16 justices of the peace. He asked if it had been altered in any way.

When the clerk answered yes to each question, the judge then case aside any doubt that he was qualified to sit on the bench in justice court. With the understanding that if he ruled in favor of the state my client would give the court some money for her case to be dismissed and that if ruled in our favor she would walk out without paying a dime - the judge denied my motion to quash the complaint.

And once again we can rest easy knowing that the justice courts are the most inaccurately named courts in Texas. There is no justice there - there are only a bevy of grocery store clerks to process pleas and payments.

This unending reverence to the notion of this is how we've always done it has been used to justify every injustice known to man. It is the most insidious form of oppression in our criminal (in)justice system. It is the same bromide used in courtrooms across the country to deny constitutional protections to the accused.

All it takes to end it however, is one person brave enough to challenge it and one person brave enough to ignore it.

Some more burnt ends

Some things you just can't make up. You might try to put an ironic twist on something but it never comes together in a coherent way. Or else the premise is just so far out there that no one's buying it.

But then there are times that irony and premise intersect.

And that's what happened when three security guards at the Harris County Criminal (In)justice Center were arrested. It's bad enough that folks accused of committing a crime are forced to stand in ridiculously long lines because the architect of the building had his head up his ass and because the judges don't seem to understand that forcing defendants to come back to court for meaningless settings every three to four weeks feeds the problem. Now it turns out that contract security guards were stealing from them.

One security guard made off with an iPad while another pocketed a flat iron (of all the things one could steal she chose that?). These items either belonged to defendants or to their family members or friends. What could be lower than that?

A third security guard was charged with tampering with a government document when she altered a log that is filled out whenever someone places money in the security scanners. Of course the question of why someone would carry $1,000 into a criminal courthouse is a valid inquiry.

Now the three of them will enjoy the experience of trying to get into the criminal courthouse in time to answer the docket.

Over at the University of Houston there is a new man in charge of the basketball team. Former OU and Indiana coach Kelvin Sampson was hired to replace (retread) James Dickey earlier this month. This is, of course, the same Kelvin Sampson that left both the OU and Indiana programs in turmoil when he left thanks to his attempts to skirt NCAA recruiting rules. I'm sure nothing like that could ever happen again.

But that's not the story.

You see, coaches are free to walk away from jobs and walk into new jobs without penalty. Both coaches and schools routinely ignore those pesky little contacts everyone signed when they were hired whenever it suits their interests. When a coach sees a better opportunity it's easy for him to pack his bags, turn his back on the players he recruited and head for greener pastures. When a school is fed up with losing there is nothing to prevent them from cutting the coach loose for the next flavor-of-the-month. A little money exchanges hands according to the buy-out provisions and everyone is happy.

But the players aren't so lucky. When they signed their commitment letters they were handed a one-year scholarship that could be renewed year-to-year by the school. It's the NCAA's way of making certain that college athletes "know their place" in the universe.

Danual House and TaShawn Thomas wanted to transfer away from UH after the school hired Mr. Sampson as its new basketball coach. But the school wouldn't allow them to do so. Without providing any reason, the University denied both transfer requests. Now Mr. House and Mr. Thomas must appeal the decision if they want to go elsewhere to play and go to school. And, even if they win their appeal, UH can still block them from transferring to certain schools.

The decision by UH is but the latest example of how life on the plantation is for college athletes. Neither of these players is paid by the school. In exchange for playing basketball they both received the promise of a free education. But, while the university can cut them loose at any time for any reason, the players don't have the right to leave the university and transfer elsewhere when they decide that the school is no longer such a great fit.

There is no excuse for the actions of the UH athletic department. The decision to deny the transfers was made just to show the players whose in charge on Cullen Boulevard. Everyone who had a hand in that decision should be ashamed of themselves.

For those who were outraged by the NLRB decision that student-athletes at Northwestern were university employees, this is an example of why such protections are needed.

"Justice" of the peace?

Oh, where to begin?

The other morning I had a client in traffic court out in West Houston (Precinct 5, Place 2 for those keeping score). He's a "frequent flier" and he, and his friends and family, provide a nice bit of pocket change over the course of the year.

He was cited for failure to control speed - he rear-ended another vehicle on the highway.

The driver of the other car showed up in court. The prosecutor chatted with him. I then went to the back room to chat with the prosecutor.

The case was simple enough. The driver of the other car had to slow down for traffic and my client hit him from behind. The damage to the other driver's car had been repaired and he wasn't out of pocket. But the prosecutor wasn't willing to let the case go so she offered my client a 90-day deferral with a fine of $50 plus court costs. If my client managed to go 90 days without getting another ticket in that court the case would be dismissed.

He took the deal.

So I had him stand in line for the clerks and headed downtown to take care of a couple of cases at the criminal courthouse. Before I ever made it to the freeway (just a few miles), I got a call from my client. In broken English he told me that the clerk said he would have to pay more money and take a defensive driving class. I told him that wasn't our deal. Eventually the clerk got on the phone and I explained to her what the agreement was. I thought the matter was resolved.

I was wrong.

On my way downtown I got another call from my client. They wanted him to pay more money and take the defensive driving class. I told him to wait for me. I told him it would be a couple of hours before I could get back to the courthouse.

As I was parking my car downtown I got yet another call from my client. He told me that the clerk said he needed to go back and talk to the prosecutor. I told him he was to do no such thing.

I then called the court and the phone was answered by an intern who had absolutely no clue as to what she was doing. She tried to explain to me (after speaking to someone else) that the court's standard offer would require my client to pay a higher fine and take a defensive driving class. I told her that wasn't the deal the prosecutor had made with us and that if that's how they wanted to play then we would just go to trial.

Now, in the interest of full disclosure, I was not the best behaved person on the phone. I was pissed and I said some things I shouldn't have said. In no way would I try to imply that my choice of language was either professional or appropriate. But this situation was ridiculous.

I called my client back and told him to meet me at the courthouse at 1pm - the scheduled time for the actual trial docket.

I was quite surprised when I got to the courthouse at 1pm and my client handed me a reset form with a new trial date. I was even more surprised when the clerk behind the window told me that prosecutor had left for the day. I asked to see the jacket so I could get the information on the other driver.

So I sat and waited. And waited. A supervisor finally came out and told me the file was with the judge and he was at lunch and they were trying to get his attention (oops, I think that's the equivalent of being sent to the principal's office). By this time I had wasted nearly 30 minutes at the courthouse and I had had enough. I told her no thank you and my client and I left.

One of two situations occurred behind the scenes that morning - but neither was handled according to the law. Either the clerk took it upon herself to change the terms of the plea bargain agreement or the judge rejected the deal. If the clerk did the deed then she was practicing law without a license. She may also have altered a government document. The clerk had no business getting involved in the plea agreement between the district attorney and my client. The ADA reviewed the case, spoke with the witness and discussed the matter with me before making her offer. She made an offer that she thought was reasonable and appropriate given the circumstances. The clerk, on the other hand, just sat behind a window and called out "next."

The clerk was also out of line when she told my client that he needed to speak to the district attorney about the deal. He was represented by counsel. The clerk knew he was represented by counsel. The clerk also knew (after speaking with my client) that English wasn't his first language. That makes her conduct even more deplorable.

The alternative was that the judge rejected the offer when it came across his desk. If that was the case then my client (and me) should have been told the court rejected the offer and my client had the right to withdraw his plea. That didn't happen. No one from the court ever called me to say that the judge rejected the offer.

Yes, attorneys tend to gum up the works in traffic court - whether it be municipal or justice - but, if you love the Constitution, that's a good thing. Judges would probably prefer that attorneys didn't get involved - we tend to lower the overall revenue of the court by our meddling. But if the court's are going to have so-called "standard offers" then the attorneys representing the state are no longer acting as attorneys - they are nothing more than glorified clerks.

This is the result of judicial efficiency being placed higher on the pedestal than fairness and equity. This is what happens when a court develops an attitude of us-against-them when it comes to dealing with criminal defendants.

This just goes to prove, that in the courthouse, there is no justice. There's "just us."

Let's play cowboys and vampires

March is a busy time in the Houston area. First there's the Livestock Show and Rodeo that opened this past weekend with the World Championship BBQ Cookoff followed by three weeks of shows, music and carnival rides. There's also Mardi Gras down on the island and St. Patrick's Day (when we reduce all of Irish culture to a glass of green beer). Finally it's Spring Break time and folks will be flocking to the beach.

It's also time, once again, for the Harris County District Attorney's Office, local law enforcement and the black-robed members of the DA's Office to conspire to make a mockery of the Fourth Amendment with a No Refusal Month.

For those not familiar with this little game, the DA's Office recruits judges to volunteer to sign search warrants authorizing forcible blood draws for people arrested for DWI who decide not to give a breath or blood sample voluntarily. Note that I didn't say they would review the warrants. Nope. That's not part of the game.

If these judges actually performed their duty the whole No Refusal program would find itself on the ash heap of history. The only way to ensure that blood is drawn is for the judges to be compliant and ignore the shortcomings of the cookie cutter search warrant affidavits that are faxed to them.

Few of the affidavits contain anything more than boilerplate language and conclusory statements that are supposed to pass as articulable facts. But have no fear, there's no random assignment of judges during the No Refusal period, the judges that sign the warrants volunteered to be part of the program. They are advertised as being part of the team.

The DA's Office is quite clear about the purpose of No Refusal - they want to obtain as much evidence as they can to force a defendant to wave the white flag and plead guilty. But what is the judge's role in this farce?

The judge should have no interest in whether a motorist submits to a breath or blood test. Whether there is a test or not if none of the judge's concern. The judge is just supposed to be a neutral and detached arbiter - not a participant in the prosecution.

And finally, just to clear up any confusion that may exist out there, in order for a breath or blood test result to be admissible in court, the suspect must have been under arrest before the officer requested the sample. In other words, the breath or blood test has nothing to do with an officer's decision to arrest a motorist for driving while intoxicated - the officer has already made up his mind before he even asks the motorist to blow.

Just be careful out there.

It ain't gonna fix itself

Doesn't there come a time in nearly every project where you stop and wonder if everything is working like it should? And if something isn't working, at some point do you stop and try to figure out why it isn't working?

If there's a pool of water under your refrigerator you don't just pile up a bunch of towels at the base and hope that resolves the problem. Wouldn't you move the fridge away from the wall to make certain that all the water connections are tight and that there isn't a leak in the water line? Common sense, right?

If the air conditioner stops working would you sit around in the sweltering heat and wonder aloud when it will miraculously start back up again? Or do you go up into the attic and check the overflow pan and the breakers? Or even call an A/C repairman? Again, it's just common sense.

So just what the hell is going on at the Harris County Criminal (In)justice Center? The lines have gotten longer. Folks are having to get downtown earlier and earlier to avoid having their bonds revoked for not showing up on time.

The vast majority of courts call the morning docket at 9:00 a.m. There are a few that call it at 8:30 and some that call it at 9:30 or so. But the main problem is the sheer number of folks who are required to sit on the wooden benches in the 37 criminal courts in Harris County (and that's not even counting the state jail felony court).

Do the judges have no clue what the outside of the building looks like in the morning? Do they have no grasp on the sheer arbitrariness of which elevators work from day-to-day?

I took the picture above yesterday at about 9:15 in the morning. Most of the folks in line (and the photo only shows one of the two lines) are running a very serious risk of losing their bonds and being taken back to jail for showing up late.

The system is broken, people. It's time to acknowledge that we have too many people trying to get into the courthouse on a daily basis. And most of those folks standing in line will go to court and sit on a wooden bench while their attorney resets their case.

There's no reason to require that defendant to show up to court. If the defense attorney and prosecutor reach an agreement for a plea, just set the case on the court's plea docket and bring the defendant back for the plea setting.

Just yesterday I was in court on a DWI case in which the police got a warrant and forced my client to submit to a blood draw. The case is three months old and the blood test results still haven't come in yet. But my client had to come to court yesterday just to sit around and wait. Why?

Why not schedule a defendant's second appearance some 90-120 days after the initial setting. Why make the defendant show up for meaningless court appearances? There's no need for my client to be there until we have the blood test results because the case is not going to plead out.

If that type of scheduling isn't up your alley, how about staggering docket times? Spread them out over the course of the morning. Doing so should allow the rush of folks trying to get into the courthouse ebb and flow. Of course such a plan, unless coupled with my first suggestion, would still require defendants to show up to court for meaningless court appearances.

Some have suggested adding some afternoon dockets for more routine matters. I have mixed feelings about this. I love the idea of afternoon dockets in places like Montgomery County because I don't have to rush in the morning to make the hour-long drive to the courthouse. I'm not so crazy about having to make return trips downtown after lunch.

So, come on judges, let's take a break and try to figure out what's wrong. But don't leave out the major stakeholders in the operation of the courthouse. Judges, prosecutors and defense attorneys need to sit down and discuss the various options and decide what makes the most sense for the most people. Something needs to change because what we're doing right now just isn't working.