Legal Attacks Mount on Crowded Houston Jails

HOUSTON (CN) — In the latest of three federal class actions challenging a post-arrest regime that effectively warehouses poor people in Texas’s most crowded jail, two men claim Harris County unconstitutionally jailed them with “unsworn” arrest reports.

Lead plaintiff Lucas Lomas, 26, was arrested without a warrant on felony theft charges and booked into Harris County Jail in downtown Houston on Christmas Eve.

Most arrests are made without warrants because police can detain and arrest people they see commit a crime or have probable cause to believe they did.

Lomas was charged with stealing five DVDs and a speaker, valued at less than $2,500. By itself the alleged crime would be a misdemeanor, but prosecutors charged Lomas with a felony due to two previous theft convictions, court records show.

On Christmas Day, a magistrate judge, or hearing officer, found probable cause to detain Lomas and set his bail at $15,000. Unable to post bail, he is in jail awaiting his Jan. 3, 2017 arraignment.

“The hearing officer’s finding of probable cause was made on the basis of unsworn statements,” Lomas says in the complaint.

Represented by the Texas Fair Defense Project in Austin, Lomas says Harris County habitually detains people who can’t afford bail based on unsworn criminal complaints, which “are not signed under penalty of perjury,” a violation of the Fourth Amendment.

Here’s how it works: An officer makes a warrantless arrest then calls a hotline staffed 24/7 by a Harris County assistant district attorney.

“The arresting officer describes the circumstances leading to arrest, and the assistant district attorney on duty decides what, if any, charges are supported by those circumstances. The statements an officer makes to the ADA on duty are not sworn,” the complaint states.

If the prosecutor believes charges are appropriate, he or she “accepts” them and tells the officer the bail amount according to a preset payment schedule.

“After the ADA accepts the charges, the police officer types a summary of the facts and a description of the accepted charges into a District Attorney’s Intake Management System (DIMS) terminal,” the lawsuit states.

“Most police officers in Harris County have access to such a terminal in their squad cars; all officers can access them at stationhouses. The DIMS summary is not sworn.”

Shortly after their arrest, defendants are taken in groups of 25 to 40 to a room in the jail where they appear via video before a magistrate and prosecutor.

These “rote” hearings last a minute, during which defendants are advised by magistrates and sheriff’s deputies not to ask for lower bail, or say anything, and are not afforded a lawyer, according to the new complaint and a related federal class action filed in May.

“The statements the ADA reads, and on the basis of which hearing officers find probable cause in almost every case, are not supported by oath or affirmation. In other words, they are not signed under penalty of perjury. They are not sworn,” Lomas says in his complaint.

Harris County assistant attorney Robert Soard said the county is reviewing the lawsuit’s allegations.

An average of 1,400 people are arrested every week in Harris County, Lomas says, so tens of thousands of people are being unconstitutionally detained with unsworn arrest reports.

In August and September, 76 percent of Harris County Jail inmates were awaiting resolution of their cases, according to a county report released in November.

Lomas says that in the rare instances when magistrates find the evidence in the complaints insufficient to establish probable cause, they tell the sheriff’s department to keep the defendant in jail and tell the prosecutor to call the arresting officer to get more details about the arrest.

After the prosecutor investigates, the defendant is taken to a hearing where the prosecutor reports on the additional findings, “again using unsworn statements,” and the magistrate decides whether the arrestee should be held.

Harris County further tramples inmates’ constitutional rights by holding them “incommunicado from the moment they are taken into Harris County custody until sometime after their magistration hearing,” Lomas says.

A magistration hearing is Houston-speak for a probable cause hearing, or an Article 15.17 hearing, Lomas’s attorney says in the complaint.

One attorney for the plaintiffs recently went to the jail and told a sheriff’s deputy she wanted to talk to several defendants who had appeared at probable causing hearings less than 24 hours before.

“After looking for the men for an hour, the deputy stated that the men could not be seen, even by an attorney, until after they had been assigned to a housing unit in the jail, which had not yet happened,” the complaint states.

“He said that the individuals were all in the basements of one of four buildings, but he did not know which one.”

Another sheriff’s deputy in a different jail building told the attorney it would take up to 36 hours for the defendants to be assigned a housing unit and during that time nobody could see them.

“The sheriff’s deputy said that they could not be found for the purpose of an attorney visit, but they would be found and released if money bond was posted,” the lawsuit states.

Lomas’ co-plaintiff Carlos Ealgin was arrested on Dec. 26 on misdemeanor marijuana possession charges. Like Lomas, he couldn’t afford his $15,000 bail and is in jail awaiting arraignment.

Lomas and Ealgin seek class certification, an injunction and a declaration that Harris County’s practice of using unsworn statements violates their civil rights.

They are represented by Rebecca Bernhardt with the Texas Fair Defense Project in Austin and attorneys with the Civil Rights Corps, a Washington, D.C. nonprofit.

The attorneys have become very familiar with Harris County’s post-arrest system and the crowded jail that county officials acknowledge need reforms. They filed a federal class action against the county in May, claiming it unconstitutionally jails nonviolent, poor people on misdemeanor charges by refusing to grant them no-fee bonds.

U.S. District Chief Judge Lee Hyman Rosenthal refused to dismiss the case on Dec. 16 and set a class-certification hearing for Feb. 21, 2017.

The same attorneys brought a federal class action against the City of Houston on Dec. 5. It accuses the city of detaining people arrested without a warrant longer than 48 hours without giving them a probable cause hearing, in violation of the Fourth and 14th Amendments. Houston arrestees who can’t post bail don’t get the hearing until the Houston Police Department transfers them to Harris County Jail.

Hundreds of Houston detainees were illegally held without a hearing in July and August because the jail didn’t have room for them, according to that lawsuit.

The first pretrial conference for that case is set for Feb. 6, 2017 before U.S. District Judge Kenneth Hoyt.

Houston is the seat of Harris County, the state’s most populous city and county.

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