HOUSTON (CN) — The federal judge who forced Texas’ biggest county to overhaul its bail system ordered Harris County criminal judges on Tuesday to prove they did not withhold evidence of policies against releasing poor misdemeanor defendants from jail.
U.S. District Judge Lee Rosenthal issued a preliminary injunction in April 2017 that added momentum to a national trend of states and cities, including New Jersey, Alaska, Chicago and New Orleans, turning away from cash bail systems that put poor misdemeanants at risk of losing their jobs and custody of their children as they sit in jail. A similar class action was filed against Dallas County this week.
Rosenthal found Harris County’s practice of having magistrates set bail at probable cause hearings with a fee schedule based on the charges unconstitutionally favors those who can afford cash bail.
Harris County, home to Houston, has more than 4.5 million residents and is the third-most populous county in the nation.
Starting in early June 2017, Rosenthal ordered Harris County to release on personal recognizance bonds within 24 hours poor misdemeanor defendants who sign affidavits stating they cannot afford bail. Personal bonds do not require a cash payment.
Represented by the Washington, D.C.-based Civil Rights Corps, which has filed lawsuits seeking bail reforms in several states, lead plaintiff Maranda ODonnell brought a class action against Harris County in May 2016.
ODonnell, 24, was arrested on a misdemeanor charge of driving with an invalid license and a magistrate set her bail at $2,500. She said her detention kept her from a new restaurant job she needed to care for her young daughter. She also sued the Harris County sheriff, its 16 criminal court judges and five magistrates.
Harris County has since hired eight more magistrates, some of whom work part time. The new hires are not defendants in the class action.
County criminal judges testified before Rosenthal last spring that in August 2016 they discontinued an informal practice of advising magistrates not to grant personal bonds.
But that testimony was called into question after state Senator John Whitmire, D-Houston, complained to a state judicial ethics board in December 2016 that videos of probable cause hearings showed three defendant magistrates were not considering misdemeanor arrestees’ ability to pay bail.
In its three similarly worded rebukes, the commission ordered the magistrates to take four hours of instruction from a mentor about magistration and setting bonds.
Hagstette appeared before the commission with his attorney on Dec. 7, 2017 and provided emails from a state criminal judge and a county criminal judge advising him not to grant personal recognizance bonds. Hagstette indicated he had to follow the judges’ bond policies or risk being fired by them.
In Texas, felony court judges preside over courts with state jurisdiction. County criminal judges preside over misdemeanor courts.
“Hagstette testified that the hearing officers ‘didn’t write the policies, but we had to follow them.’ Regarding the hearing officers making bond determinations on cases, he stated: ‘Could I do something? Probably by law, I could have. I don’t know if it would have been good for my career,’” according to his reprimand.
The commission found that Hagstette, Licata and Wallace “failed to maintain competence in the law, by strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned.”
The commission published the reprimands on Jan. 10. ODonnell’s attorneys sent Rosenthal a letter a week later, asking for a hearing on whether county criminal judges, including Judge Diane Bull, lied under oath in the bail case.
“The commission quotes an email from Judge Diane Bull that states: ‘Please instruct the probable cause hearing officers to withhold their rulings on all pre-trial release applications for defendants,’” the letter from Neal Manne with Susman Godfrey in Houston states.
It continues: “This quote, if accurate, appears to be inconsistent with Judge Diane Bull’s testimony in her sworn declaration: ‘The Criminal Law Hearing Officers are independent magistrates for the purpose of setting bail amounts and deciding whether to grant personal bonds in misdemeanor cases. I do not supervise them.’”
Rosenthal ordered all the county criminal court judges and magistrates who are defendants in the lawsuit to attend the Tuesday hearing. They sat among the more than 60 people packed into the gallery.
Michael Kirk, partner in the Washington, D.C. firm Cooper Kirk, is defending 14 of the county’s 16 criminal court judges.
Manne asked Rosenthal to order the county to produce all documents the three censured magistrates gave to the state judicial commission.
County attorneys agreed to produce those records once they get them from the commission.
Manne said the felony court judges’ instructions to the magistrates on setting bail are relevant because they show a system in which magistrates abided by all judges’ rules.
“It defies logic that (Hagstette) would defer to the known preferences of district [felony] judges, but ignore the known preferences of county criminal judges,” Manne said.
He said the county criminal judges did not comply with his discovery request for all communications about their bail policies for two years starting in November 2014.
Siding with Manne, Rosenthal ordered the county to provide the class with correspondence about “anything effecting bail” by Feb. 23. She also agreed that judges and magistrates should answer questions about unwritten “oral constraints” against personal recognizance bonds.
Rosenthal ended the hearing with a message to the judges she had summoned.
“I asked you all to be present individually to make clear how very serious this issue is,” she said. “It wasn’t any kind of implied rebuke or criticism, or any indication of how I will come down on the merits.”
She said she wants to make clear she is taking seriously the issues raised by the judicial commission because the county’s bail system affects so many people’s lives.
Though Harris County started phasing in reforms in July 2017 geared toward granting more misdemeanor defendants personal bonds, it has asked the Fifth Circuit to dismiss Rosenthal’s injunction. A ruling from the New Orleans-based appellate court is imminent. It heard arguments last October.
The bail bond industry has filed amicus briefs supporting Harris County.