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Harris County judges seek to stop federal order in historic bail lawsuit

August 8, 2018

More than a dozen Harris County misdemeanor judges contend that public safety would be imperiled if they followed an “untenable” new pretrial release order by a Houston federal judge who has found the current county bail system unconstitutional.

An appellate lawyer representing 14 county court-at-law judges, all Republicans, argued before an appeals court in Houston Tuesday that Chief U.S. District Judge Lee H. Rosenthal’s revised instructions overstepped the narrow directions she was given in June by the federal appeals court to fine tune elements of her initial order. The revision afforded liberties that the appeals court did not mandate, allowing people arrested on certain offenses be released as promptly as those who are able to secure money bail, the judges’ lawyer argued.

“Since the Magna Carta money bail has been seen as sufficient surety and wealth is an inevitable factor…when that surety is money bail,” said Charles Cooper, a Washington D.C. lawyer representing the judges.

Many of the judges won’t be on the bench much longer to oversee the new bail policies, since seven are not seeking re-election this fall.

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An attorney for the indigent defendants argued that Rosenthal’s order did not stray from the U.S. Fifth Circuit Court of Appeals instructions, nor does it create “irreparable harm” for the courts and the public. The courts can impose “unaffordable bail” if they can justify it, he said.

“A period of ‘wealth based detention’ is OK, but you have to show that you’re serving some interest,” said Alec Karakatsanis, who represents the indigent defendants in the class action suit.

Two other court at law judges, a Republican and a Democrat, as well as the sheriff and the county itself, did not oppose Rosenthal’s revised temporary injunction. The county’s legal tab for opposing the case has surpassed $6.6 million, according to Robert Soard, first assistant to County Attorney Vince Ryan.

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Pct. 1 Commissioner Rodney Ellis, a longtime advocate for criminal justice reform who supports the lawsuit, said he wondered whether the county legitimately intends to settle the case prior to trial.

“It looks like they just want a blank check to continue current unconstitutional practices,” Ellis said.

Rosenthal ruled in a sweeping 2017 opinion that the county’s bail system violated the Constitution, discriminating against misdemeanor defendants who cannot post bail in instances where a person with access to cash could post bail could do so.

The lawsuit was initially brought on behalf of Maranda ODonnell, a young mother who spent two days in jail on a charge of driving with an invalid license because she couldn’t come up with $2,500 bail. The case expanded to include all defendants in similar circumstances.

The 14 judges who oppose the order object to the blanket release of certain indigent defendants who have not been seen by a judge within 48 hours of arrest and the release of people who failed to appear in court after previous arrests, their lawyer said. Cooper, referring to disputed data on the rate of defendants who failure to appear fopr their court date, argued that releasing indigent defendants within such a tight window perpetuates a revolving door for recidivists and subjects the public to irreparable harm.

However, Karakatsanis, the opposing counsel, said Rosenthal’s revised order hews to the appeals court’s instructions.

U.S. Fifth Circuit Judges Jerry E. Smith, James E. Graves, Jr. and Stuart Kyle Duncan will rule later on the request for a stay.

Requesting the stay were Court at Law Judges Robin Brown, Diane Bull, John Clinton, Pam Derbyshire, Natalie C. Fleming, Paula Goodhart, Bill Harmon, Margaret Harris, Jean Hughes, Jay Karahan, Donald Smyth, Dan Spjut, Larry Standley and Analia Wilkerson. Court at Law Judges Mike Fields and Darrell Jordan did not oppose the injunction.

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