HOUSTON – Harris County judges are often criticized for setting any kind of bond or setting a bond the public considers too low in cases involving violent felonies. However, KPRC 2 Investigates wanted to know what is the prosecutor’s role in this process, more specifically, what impact can the prosecutor have on the setting of bonds in felony cases?
KPRC 2 Investigates reviewed court records of all murder and capital murder cases where the bond was set this year, from Jan. 1 - Sept. 30. In at least 10% of the 257 cases we examined, prosecutors did not appear to fight the bond set by the judge.
Although judges are precluded from speaking publicly about specific cases, KPRC 2 Investigates’ analysis of records revealed judges left notes about the bond process on docket sheets.
Some of those notes read, “prosecution didn’t ask for a higher bond,” “state never asked to raise bond,” or “state didn’t move forward with sufficient bail motion.” In other cases we found prosecutors withdrawing motions seeking a denial of bond.
ABANDONING THE MOTION: WHAT ABOUT THE VICTIM?
One of the cases involved is the murder of David Castro, 17, after an Astros game in July.
“The things I’ve come to learn about how the system works and doesn’t work are both disgusting and shocking,” said Paul Castro, David’s father.
“What did you think would happen in terms of the bond?” asked KPRC 2 Investigator Robert Arnold.
“The hope was the system would keep him locked up,” said Castro. “When I heard his accused murderer was granted bond it was, first it was enraging.”
Gerald Wayne Williams, 34, is charged with David Castro’s murder. A magistrate initially set his bond at $350,000, but prosecutors immediately asked he be held without bond. While the Texas constitution guarantees most defendants a right to bond, the law also allows for it to be denied in Williams’ case because of his prior felony convictions and that he’s charged with a crime involving a deadly weapon.
Yet court records show prosecutors “abandoned” their motion to deny the bond and instead asked for a $500,000 bond.
KPRC 2 Investigates’ review found that Judge Marc Brown wrote that without a hearing or evidence to support their request to increase bond, he had “no discretion” to “deny bail” and “no legal justification” to change the original amount.
Castro said prosecutors told him seeking a denial of bond would require them to show more evidence against Williams than they were comfortable sharing at such an early stage of a case.
“As we understood it, putting all those facts on the table might jeopardize the case in some way, shape or form,” said Castro.
He said he was unaware of Judge Brown’s filing until he was provided with a copy by KPRC 2.
“I’m confused, to be honest. Looking at what the judge wrote and understanding what I understood at the time, it does seem like there was a possibility to go for no bail,” said Castro.
THE DA’s ROLE
KPRC 2 Investigates requested an interview with District Attorney Kim Ogg about the issue of bond, but it was veteran prosecutor JoAnne Musick who answered questions on behalf of the office.
“[Judge Brown is] wrong, he had legal recourse,” said Musick in reference to the memo. “If he believes the bond to be insufficient, he himself may...raise that bond to a higher level.”
Musick would not comment as to why the prosecutor on this case asked for a bond without presenting supporting evidence but reiterated that Judge Brown, and any judge, “has a right to determine if bail is sufficient or not.”
PROSECUTORS NOT PRESENTING EVIDENCE
“But isn’t that a cop-out? You go, ‘Oh, well it’s just the judge. Our hands are tied at this point?” said Arnold.
“I’m not saying our hands are tied. I’m saying we took a strategic position to not present evidence at that moment,” said Musick.
Former judges tell KPRC 2 Investigates that prosecutors have a “considerable” impact on setting bond.
Former judge and prosecutor Catherine Evans said while ultimately judges set the bond, many look to the prosecution and defense to provide information that will help inform that decision.
“Bonds cannot be used as an instrument of oppression, what that means in a given situation is very much open for interpretation,” said Evans.
Former Judge George Powell, who is now a defense attorney, also adds most bonds are set by magistrates soon after a person is arrested. Once the case goes to the trial court, if the prosecution doesn’t ask for a hearing to change or deny bond then rarely would a judge take that action on their own.
“In that event, the judge is going to leave it alone typically and there may be people upset because a judge didn’t make a decision in that case,” said Powell.
“WHEN DO YOU FIGHT FOR THESE THINGS?”
“So when do you fight for these things?” asked Arnold in regards to cases where judges set bond lower than requested by prosecutors.
“When we feel it is so far removed from sufficient then we will add the extra resources and time to continue fighting. If it’s only off by a little we’re not going to sit and waste the court’s time arguing over a small amount,” said Musick.
Musick does admit the term “sufficient” is subjective and the amount of bond sought is decided on a case-by-case basis. Musick said the DA’s office does not have a specific written policy on bond; decisions are made based on evidence, nature of the crime, criminal record and safety of the community.
Musick said not fighting for a higher bond is sometimes part of a broader trial strategy and the office’s mounting case backlog and limited resources is another factor.
“There is not the time to take every single case to a hearing, there’s not the time to present the evidence in every single case fully, so obviously that does have to factor in,” said Musick. “We have to triage and look at which are the most important ones to fight.”
None of these answers and explanations bring comfort to fathers like Paul Castro.
“I don’t feel like I have enough information anymore to have anything other than a mild opinion, what I do know is my son dead and the person accused of killing him is on the street,” said Castro.
BONDING COMPANIES ROLE
Another factor to consider is now some bonding companies are taking less than the customary 10% fee upfront to secure a bond, according to Evans.
“People are getting out paying less than they might otherwise have paid even though the bond is the same,” said Evans. “The entire bond system is in flux and people are figuring that out.”
President of the Professional Bondsmen of Harris County Association and owner of First Advantage Bail Bonds, Mario Garza said since misdemeanor bail reform was enacted bonding companies are having to adjust.
“There are less bonds to make so therefore some companies are lowering their prices to make those bonds,” said Garza. “On average what a bondsman does is take 5-percent down and the remaining 5-percent is on a payment plan.”
He says while bonding companies may take less money upfront, it doesn’t create more risk because they still require collateral to back potential forfeitures.
“I look at the quality of the bond, the defendant, his record, what’s the likeliness he’ll re-offend or skip court,” said Garza.
He says it is only a small number of companies that will accept less than 5% upfront fees and assume more risk with a defendant.