HOUSTON – A panel of judges for the Fifth Circuit Court of Appeals recently heard arguments as part of a federal lawsuit involving Harris County’s embattled bail system.
The lawsuit accuses the county of having an unconstitutional bail system that ensures those without money remain in jail prior to trial while those with means are able to secure their release.
“This is all about our protection under our federal constitution,” said Harris County Commissioner Rodney Ellis, who supports the lawsuit and questions why the county has spent roughly $4 million fighting the case. “We were locking up poor people and letting people out who had money. We cannot have a society where, if you have money, you can do whatever you want to do.”
The recent arguments before the Fifth Circuit involved an order that arose from this lawsuit: A federal court chief judge in Houston ordered the county to make changes to its bail system while the lawsuit winds its way through the legal process. The order states defendants charged with misdemeanor crimes are to be released from jail within 24 hours of their arrest, regardless of whether they are able to afford bail. The exceptions to this order are those defendants wanted in another jurisdiction, those with immigration holds, those accused of violating family violence protective orders or those on a mental health hold.
“An indigent defendant’s inability to pay secured money bail cannot be the basis for the sheriff to continue to detain that defendant,” the judge’s order reads.
Since the judge’s order was issued, many misdemeanor defendants are being released on unsecured bonds, meaning, they do not have to pay any money to secure their release but could be sued for the full amount if they fail to show up for court. Other misdemeanor defendants are released on personal bonds.
The new system does have some people concerned who have reported domestic violence.
“He just started walking and yelling and cussing and screaming,” said Gail White, who doesn't remember exactly what started the argument with her then-boyfriend, Robert Wayne Hill.
“The next thing I remember is, his hand going to my shoulder and I felt his fist on my face,” White said.
White said when she finally saw her face in the hospital, she was so shocked that she posted a video to Facebook to let her friends know what happened.
“This is my reality and this is not the way life is supposed to be,” White is heard saying on the video.
Hill was arrested and charged with misdemeanor assault in September. The chief of the district attorney’s office’s misdemeanor division, Nathan Beedle, said there was also a witness to the incident.
“(I) viewed this female being beat like no other woman he's ever seen being beat in his life,” Beedle said the witness told prosecutors and sheriff’s deputies.
Barely 24 hours after his arrest, White said she was stunned to see missed calls and text messages from Hill.
“He sent me a text message (that said), 'I don't know if you're busy, but I want to speak to you,’” White said.
Court records show Hill was initially released on an unsecured bail, because he indicated he could not afford the $3,000 bail set during a probable cause hearing. Court records show there was not a “no contact” condition of bail or protective order put in place prior to his release, leaving him free to contact White.
Hill’s attorney told KPRC that her client is innocent of the charges.
“I don't understand the whole court process,” White said.
Beedle said once the case made it to his division, prosecutors immediately sought a “no contact” condition of bail and a protective order. Hill was then brought back to court to put up money for a secured bond. Court records show Hill was arrested Sept. 13 and the protective order and “no contact” condition of bail were signed by a judge and magistrate Sept. 21.
It is unclear why these measures were not sought prior to Hill’s initial release.
“Twenty-four hours from the time of arrest to get certain procedural things done in the county of our size can be a challenge,” said Beedle, without commenting on any specific case.
Another portion of the federal judge’s order stipulates that if a person is arrested and accused of a new misdemeanor while awaiting trial, or is arrested for failing to appear in court, then that person still must be released within 24 hours.
“(With) this system, there are no consequences -- in fact, all the incentives are for non-performance,” Commissioner Jack Cagle said during an interview with KPRC in July.
Harris County Judge Ed Emmett has also previously stated he is concerned there is no “off button” when it comes to misdemeanor defendants being arrested on new charges or for violating conditions of their release.
An example of these concerns is Abdu-Jabbar Wiley. Court records show since June, he was arrested six times on charges of trespassing and burglary of a motor vehicle. Court records show in five of those cases, Wiley was released on either an unsecured or a personal bond. In the sixth case, Wiley pleaded guilty a day after his arrest and was sentenced to 30 days in county jail.
Wiley was then arrested again Aug. 30 and accused of looting a liquor store following Hurricane Harvey. During a probable cause hearing, a hearing office noted that Wiley failed to show up for court several times in the previous cases. Since the latest case against Wiley is a felony, it is outside the scope of the federal judge’s order. Wiley is currently in jail on a $15,000 bail. Wiley’s attorney has not yet responded to KPRC’ s request for comment.
According to records obtained by the Harris County Office of Court Management, the failure rate for unsecured bonds is 36 percent since the implementation of the judge’s order. The failure rate for personal bonds is 18 percent. The failure rates for surety bonds is 8 percent and the failure rate for cash bonds is 11 percent.
“There's things we can do to make sure that failure rate is better than worse,” Ellis said.
Ellis argues these failure rates are not a true indication of how the judge’s order is implemented, especially since a defendant’s bail can be revoked for issues such as showing up late to court. Ellis also argues judges could put stricter conditions on a person’s release to further ensure he or she shows up for court.
Ellis went so far as to speculate whether the judges are not doing more to help increase compliance by instituting stricter conditions on pretrial release because they are named in the federal court lawsuit that accuses the county of having an unconstitutional bail system.
“I'm saying these very good people are not beyond doing some things that are not so good,” Ellis said.
“So, you think the judges are doing this intentionally to make all this look bad?” Channel 2 investigative reporter Robert Arnold asked.
“I do think that's the case,” Ellis said.
Ellis said he has no direct proof of this happening.
Officials with the county attorney’s office, which represents the judges, fired back at Ellis’ comments.
“That makes absolutely zero sense,” said Melissa Spinks, the main attorney for the litigation group. “Judges absolutely do not want defendants to fail, because a failure to appear means justice isn’t done.”
When KPRC first reported on this issue in July, sheriff’s officials said it can be difficult to meet the 24-hour time limit since many defendants are arrested by outside agencies and it can be several hours before they are brought to the jail for a probable cause hearing. Sheriff’s officials said that time constraints also makes it very difficult to determine whether a person is being truthful about his or her ability to pay bail.
"If someone has a better way of fixing this problem, they ought to go to court, make that case to the judge and ask for those changes,” said Ellis, referring to the county asking the federal court judge to modify her order.
Robert Soard, with the county attorney’s office, said officials are now preparing to file a request that the judge modify her order. Soard said time was needed to fully understand the impact of the judge’s order before formulating a request for modification.
The Fifth Circuit Court of Appeals has yet to rule on the county’s appeal of this order.