Bail presser

Harris County bail case argued before federal appeals court in New Orleans

NEW ORLEANS — Amid a stream of pointed questions from the bench, lawyers for Harris County Tuesday asked panel of the 5th U.S. Circuit Court of Appeals to toss a lower court ruling that the county’s criminal justice system violated the constitution by holding poor defendants on low level offenses simply because they could not afford bail.

The arguments challenge an April ruling by Chief U.S. District Judge Lee H. Rosenthal in Houston that the county’s bail system violated due process and equal protection by discriminating against poor misdemeanor defendants, when people with the money to could await trial at home.

A trio of appellate judges heard 30 minutes of oral arguments from the county, which has spent $4.2 million combating the lawsuit, and another 30 minutes from lawyers for a group of indigent defendants who languished in jail for days because they couldn’t afford to post bail.

Hearing the matter at the stately white courthouse on Layfayette Square were Judge Edith Brown Clement, a New Orleans jurist appointed by President George H.W. Bush, and two Texas judges, Judge Catharina Haynes, of Dallas, a former civil court judge in Dallas, and Judge Edward C. Prado, who worked for both the district attorney and public defender’s office in San Antonio, both of whom were tapped for the 5th Circuit by President George W. Bush.

Dubbed “the nation’s most divisive, controversial and conservative appeals court” by the American Bar Association, the New Orleans-based 5th Circuit, hears appellate cases from Texas, Louisiana and Mississippi.

The judges appeared to be questioning whether the bail hearings were substantive for defendants, whether the sheriff had the authority to release people on bond and whether 24-hour limit Rosenthal set for holding indigent defendants without holds or detainers was arbitrary.

Of the three, Haynes commanded the questioning throughout the morning, including when Chuck Cooper, a seasoned appellate lawyer who heads the Washington, D.C. law firm Cooper & Kirk, argued for the county that the bail hearings were not perfunctory.

Haynes interrupted Cooper mid-sentence, with a rhetorical question, “Now they know they’re under scrutiny so they add an extra sentence to their rubber stamp?”
To Alec Karakatsanis, director of the Civil Rights Corps in D.C, who represents the indigent defendants who sued the county, Haynes repeatedly asked about why the defendants needed to be released from jail by the 24-hour mark.

“I’m asking a very specific question you’re not answering,” she said. “Where in the U.S. Constitution does it say you’re required to release… within 24 hours.”
“It doesn’t,” Karakatsanis said.

Haynes also asked what’s the value of the affidavit inmates sign to swear they can’t afford bail.

“What if they’re lying on this affidavit–I don’t know, if they’re a millionaire or something?” she queried.

Karakatsanis said they could face further prosecution for contempt if they misrepresented their means.

The panel of judges is not expected to rule immediately.

Following an eight-day hearing, Rosenthal ruled on April 28 that the county’s bail practices were unconstitutional., and she ordered the county to release indigent inmates arrested on low-level charges within 24 hours if they do not have detainers, holds or competency hearings pending.

Rather than putting cash upfront, these individuals are now permitted to await trial on personal bonds.

The judge found defendants were exposed to rushed hearings and those who tried to speak were commanded not to, shouted down or ignored She said the judges did not do the analysis to conclude that cash bail is better than unsecured bail.

The case was initially brought on behalf of Maranda ODonnell, a young mother who was held in the Harris County Jail because she could not afford to post $2,500 bail after being arrested for driving with a suspended license. The class-action suit will affect other inmates in the jail.

Prior to the morning session, Elizabeth Rossi, an attorney with Civil Rights Corps, said she was ready for the appeals.

“We’re looking forward to answering the panel’s questions and explaining why this is a simple case that upholds fundamental principles of liberty enshrined in the constitution,” she said.

County Attorney Vince Ryan said the 24-hour timeline Rosenthal set was problematic.

“The judge’s order shifts judicial functions—the setting of reasonable bail and conditions of release for misdemeanors—to an affidavit by the defendant which must be accepted by the sheriff,” he said. “The order applies regardless of the number of times a person is arrested and fails to appear for court. A system that promotes speedy release without real accountability over public safety is not a system that Harris County can embrace.”

This story originally appeared 10/3/2017 in the Houston Chronicle.