Democratic election gains may spark Harris County bail lawsuit settlement
The Democratic sweep of Harris County leadership posts in the midterm election could prompt a settlement in the protracted legal dispute over how judges handle bail for poor people arrested for petty offenses, according to statements made in federal court Tuesday.
The shift in attitudes became evident during an early morning hearing in Houston before Chief U.S. District Judge Lee H. Rosenthal, who has presided over the civil rights action since 2016 and ruled in 2017 that the county’s bail practices discriminated against poor people. Lawyers for both sides acknowledged the proverbial elephant in the room: that all 14 county judges who oppose the bail lawsuit are Republicans who will be replaced in the new year by Democrats who have pushed for deeper bail reform.
Rosenthal congratulated the attorneys’ willingness to “accommodate any changes that have recently occurred in a reasonable way” and set a hearing for Feb. 1 where the lawyers may begin discussing plans for a possible settlement that would avert a lengthy trial.
In addition, Neal Manne, who represents indigent defendants who were jailed for days because they couldn’t afford bail, told Rosenthal he was prepared to put the brakes on a motion to compel information about lost correspondence that was automatically erased by county’s computers.
Michael Kirk, an attorney for the 14 court-at-law judges, told the judge with a smile, “I find myself in the very unusual position of agreeing with Mr. Manne.”
However, Kirk said his clients plan to press on with their appeal of Rosenthal’s revised injunction, a document that has been the flash point in the ongoing legal standoff. The county has spent nearly $8 million defending itself against the case so far, including payments to outside lawyers at Kirk’s top-tier Washington, D.C. law firm.
The two other current judges, a Republican and a Democrat, have sided with the indigent defendants in the case.
Manne said the county has been fighting the indigent defendants’ suit for more than two years, but the election results mean, “It’s going to be a new day.”
“My sense is that once the elected officials take their places, we will be able to achieve real, meaningful bail reform in Harris County,” said Manne, referring to new judicial terms that begin in January.
Standing with Manne and others in the courthouse hallway after the hearing was Franklin Bynum, a 36-year-old Democratic Socialist in the mold of Bernie Sanders, who was elected last week to the misdemeanor bench for County Criminal Court No. 8. Bynum said he’d read documents and sat through hearings in the historic bail case from the beginning.
“It was this lawsuit that originally inspired me to run for judge,” Bynum said. “I agree with them completely and I would hope the other county criminal court at law judges would feel the same.”
He said he and his fellow Democratic candidates all promised residents on the campaign trail they intended to settle the bail lawsuit quickly.
“Certainly we’re going to behave differently than the current judges did, like being obstinate …and defending the indefensible,” he said.
In April 2017, Rosenthal ruled that the county’s bail policy violated the equal protection and due process clauses of the U.S. Constitution. She wrote that misdemeanor judges’ bail determinations amounted to wealth-based detention for poor defendants who could otherwise qualify for pretrial release, whereas similar defendants with money could resume their lives at home on bond.
The topic of a settlement surfaced again again an hour later at the start of the first Commissioners Court meeting following the election.
A lawyer for County Court at Law Judge Darrell Jordan, the only Democrat on the misdemeanor bench and the only judge to retain his seat in last week’s election, implored county leaders to “stop the hemorrhaging of money” and end their appeal to the 5th U.S. Circuit Court of Appeals.
That’s when the top county official, outgoing Judge Ed Emmett, said, that “time and time and time again” he and others on Commissioners Court said they were willing to settle for the terms the 5th U.S. Circuit had outlined for an agreement, and it was the indigent defendants’ counsel who balked at the idea. Emmett, and Commissioner Jack Cagle have both said repeatedly that all parties agreed that nobody should be incarcerated just because they can’t afford bail.
This precipitated a brief sparring session between Emmett and Commissioner Rodney Ellis, the sole Democrat on the court, who said he was ready to set aside legal arguments and settle.
“It takes two sides to settle … I’m going to leave this up to the county attorney,” Emmett said, noting that he had two more commissioners court meetings left.
Robert Soard, of the county attorney’s office, said afterwards that he would welcome input anytime from the new judges about their wishes but he can’t take action on their behalf until they are sworn into office.
Emmett’s replacement for county judge, Lina Hidalgo, spoke ardently to voters about bail reform. She said Tuesday that she believes the landscape has changed following the election.
“Harris County voters were very clear in electing a new slate of judges: it’s time to fix our broken criminal justice system,” Hidalgo said. “Instead of continuing to spend millions fighting reform, we should invest in policies that save us money and allow every resident of our county to have equal access to justice.”