The case to end cash bail puts Harris County judges and magistrates under a microscope.
The young woman muttered “yeah” when asked if she wanted a court-appointed lawyer. That wasn’t good enough for Harris County magistrate Eric Hagstette, who explained to her the difference between “yes” and “yeah” when she appeared, via video link, before him in May 2016. The woman interrupted, reiterating with another “yeah” that she was too poor to afford her own attorney, so Hagstette ended his lecture by doubling her bail to $2,000. Court records show the woman couldn’t afford bail either and remained in jail for five days until she pleaded guilty to a misdemeanor marijuana charge in exchange for time served.
“She just oozed attitude,” Hagstette told the State Commission on Judicial Conduct in December, according to an audio recording of his sworn testimony obtained by the Observer. Hagstette said he raised the woman’s bail because of her “demeanor,” telling the commission that she “struck me as disrespectful of the system, of the whole thing.”
Video of Hagstette and other magistrates, who hold around-the-clock hearings to set bail on behalf of the county’s elected judges, is now key evidence in a class-action lawsuit that has upended how Harris County handles poor people accused of misdemeanor crimes. The magistrates’ testimony last month has again put county officials under the microscope, raising questions of whether they withheld evidence or even lied in the bail lawsuit.
While the plaintiffs in the bail suit had already obtained the videos, the footage didn’t reach the public until criminal justice groups publicized videos of Hagstette and two colleagues browbeating defendants and refusing to grant personal bonds, which are supposed to be available to people too poor to afford bail and only require pretrial monitoring instead of a cash payment upfront. State Senator John Whitmire filed complaints against the three magistrates with the State Commission on Judicial Conduct and sent a letter to the county’s misdemeanor court judges urging them to “reprimand and replace them now,” citing a “total disregard for citizens” and a “complete lack of judicial temperament.”
Then, in April 2017, in a landmark federal court ruling, Judge Lee Rosenthal called the videos evidence of Harris County’s “indifference” to jailing poor people simply because they can’t afford bail and declared the practice unconstitutional. This month, on January 10, the judicial conduct commission piled on with rare public admonishments against the three magistrates for refusing to issue personal bonds. But the fallout didn’t end there.
Attorneys who filed the bail lawsuit sent Rosenthal a letter on January 17 arguing that testimony and records submitted to the judicial conduct commission raise the prospect that county officials made “possible misrepresentations” in federal court last year.
That’s because, at their disciplinary hearings last month, the magistrates claimed their actions were guided by the wishes of elected misdemeanor court judges. As Hagstette told the commission, “We’re not pulling the strings.”
That appears to conflict with what Harris County’s misdemeanor judges told Rosenthal in federal court last year, when they swore in filings and testimony to the court that magistrates operated with full independence — and weren’t, say, following any explicit or implied preferences of the judges in order to keep a job that, at last check, carries a starting salary of $131,518.
The discrepancy prompted a crowded and tense hearing in Rosenthal’s court last Tuesday. Rosenthal had ordered all of the county’s misdemeanor court judges and magistrates to attend, a virtually unheard-of move. She began by expressing her growing concern over a “lack of transparency” in the case. Lawyers for the judges and magistrates insisted that testimony and records from the disciplinary hearings have simply been taken out of context. Attorney Kate David, who represents the magistrates, called it “an interpretation issue.”
Still, Rosenthal ordered the county to give the other side everything from those proceedings and didn’t rule out compelling additional written or oral testimony on any past bail instructions from the misdemeanor court judges. Rosenthal told the judges seated in her courtroom she demanded their appearance not to scold them, but rather to stress how serious she is about the case and its “impact on so many people’s lives.”
The stakes are certainly high. Civil rights groups say Rosenthal’s bail ruling, which is currently on appeal before the federal Fifth Circuit court, could alter bail practices across the country and end assembly line justice for the poor. The reform movement spread last week when the same civil rights groups that challenged Harris County’s bail system filed a similar lawsuit in Dallas County. Last Wednesday, during a panel on criminal justice reform inside Pleasant Hill Baptist Church in Houston’s Fifth Ward, Harris County Commissioner Rodney Ellis compared the Houston case to Brown v. Board of Education in terms of its potential civil rights impact.
“Sandra Bland was arrested and kept in jail because she didn’t have $500,” Ellis told the packed audience. Harris County misdemeanor court Judge Darrell Jordan, the only county judge who supported the bail lawsuit and welcomes court-ordered reforms, chastised officials “who have been in office for 20-plus years who know that they are operating a system that penalizes blacks and browns worse than everybody else.” The panel’s guest of honor, civil rights icon and Georgia Congressman John Lewis, told the crowd, “We need criminal justice reform now more than ever.”
Attorneys representing the county judges and magistrates in the bail lawsuit maintain that anything that surfaced in the recent disciplinary proceedings isn’t relevant to the case. At the very least, however, those hearings hint at a lingering disconnect between bail reformers and long-serving county officials who aren’t sold on Rosenthal’s groundbreaking ruling. Hagstette acknowledged the “slow erosion” of the old bail system, but challenged the very premise of Rosenthal’s ruling. “You have a right to a reasonable bond,” he said. “Nobody’s absolutely entitled to a personal bond.” Magistrate Jill Wallace told the commission that Rosenthal’s order has created a situation where “lots of people don’t come back to court because they’re released.”
Indeed, recent digging by the Houston Chronicle shows the county now maintains a system where some misdemeanor defendants who most need pretrial monitoring and assistance aren’t getting it, and thus continue to cycle through the jail and courts like a magnet attracting additional charges. That’s in part because Rosenthal’s ruling directed the jail to release any misdemeanor defendants who couldn’t afford bail after 24 hours on what’s called an unsecured bond, which carries no restrictions or supervision. You might assume magistrates, knowing that an acting federal court order would eventually force defendants’ release anyway, would grant indigent people personal bonds, which come with pretrial supervision and county assistance, even in cases they consider high-risk.
Except that’s not always happening, according to the Chronicle. Reporter Meagan Flynn found numerous instances of hearing officers refusing to give personal bonds to indigent arrestees, including homeless people with mental illness, only to have those defendants released within 24 hours, without supervision, shortly after which some (surprise) got arrested again. Melissa Spinks, a Harris County attorney overseeing the bail lawsuit, claimed magistrates are issuing more personal bonds than ever before, but told the Observer that it’s well within their discretion to withhold them for people they consider to be a public safety threat. “Judge Rosenthal didn’t order the judges or hearing officers to do anything,” Spinks said.
Jay Jenkins, an attorney with the Texas Criminal Justice Coalition, says the way the county has implemented Rosenthal’s court order seems designed to produce outcomes that look as bad as possible on paper while the case is on appeal.
“They can word it however they want, but bottom line is that they’re releasing higher-risk people, people they themselves say they consider dangerous, when they could put conditions on them,” Jenkins told the Observer. “Their actions speak for themselves.”