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Judge Jordan deserves to have his position in the bail lawsuit represented

I have problems with this.

Darrell Jordan

The only Harris County judge to fight the county’s defense of its controversial bail system has been notified he will not get his own lawyer to appeal the high-profile federal lawsuit that has divided county leaders.

Judge Darrell Jordan – one of 16 criminal court at law judges sued over the county’s cash bail system – is fighting to keep a county-funded attorney who will carry his push to end the lawsuit to the Fifth U.S. Circuit Court of Appeals.

First Assistant County Attorney Robert Soard, however, sent an email Thursday telling Jordan that the appeal for him and other judges will be handled as a group, even though Jordan disagrees with the other judges.

“By taking me out of the fight – by me not having an appellate lawyer – then I can’t attack the unconstitutional grounds that they’re coming from,” he said. “My lawyer should be coming in, and we should be going over what the other judges have filed … We should be telling the truth from my viewpoint.”

He vowed to continue his challenge of the system.

“This fight is too important to just sit back and give up,” he said in an email to the Chronicle.

Soard said Friday he could not discuss conversations between Jordan and the county attorney’s office because of attorney-client privilege, but he said an attorney from his office is reviewing the matter.

In the email exchange with Jordan, however, Soard said the legal fight has centered on the county, diminishing the legal arguments needed on behalf of individual judges, the sheriff or six hearing officers also named in the case.

“Our office is of the opinion that additional filings on your behalf in this case are not appropriate or necessary at this time,” he said in the email, a copy of which was provided by Jordan to the Chronicle. “We have been unable to identify any claim or defense that you may assert that is separate from that of the County or the other County Criminal Court at Law Judges acting as a legislative body.”

[…]

Typically, the county provides legal representation when leaders are sued in their official capacity. Rosenthal’s injunction targets the judges in their “legislative capacity,” however, since the judges work together to set bail practices, according to Soard’s email.

No judge named in the case has a personal attorney in the appellate process, said Melissa Spinks, the county’s managing attorney for litigation.

Jordan said Friday, however, that he has been excluded from meetings where the 15 other judges discussed the case. He blamed County Attorney Vince Ryan for cutting off his legal representation.

“Vince Ryan has found a way to silence my voice,” he said in an email. “I have no other lawyers to call for advice.”

Soard said he was unaware of Jordan’s allegation that he had been excluded from meetings, but said his office would look into it.

I don’t know what to think about the role the County Attorney has played in all this. The charitable explanation is that as the attorney representing the misdemeanor court judges, Vince Ryan believes he must carry out the wishes of his client, and that he cannot decide for them. That breaks down when one of those clients, Judge Jordan, wants something different than what his colleagues want, which argues for letting him have his own counsel. Of course, that can’t happen without the approval of Commissioners Court. So to some extent Ryan is boxed in, but it’s not clear how much he’s been constrained, and even if he is it’s not clear he can’t find a way to express his concerns over this lawsuit, if indeed he has them. In the end, we’re left to decide for ourselves whether Ryan is acting appropriately, or if any other County Attorney might have acted differently. I can’t fault anyone who thinks the answers to those questions are No and Yes, respectively.

This case is an excellent distillation of the reasons why I so strongly oppose any effort to make judicial elections non-partisan. Let’s be clear, every Republican judge involved in this lawsuit opposes efforts to change the bail system, while the one Democratic judge, who is only there because the creation of a new court caused his bench to be on the ballot during the Democratic tidal wave year of 2016, not only wants the system to be overhauled but has changed the way he operates his court to comply with Judge Rosenthal’s ruling. The division on this issue is entirely partisan, and that is something that the voters ought to know. I personally don’t care if any of these Republican judges are objectively “good” or not, I believe they are completely wrong on this very important issue, and I believe it is appropriate and valid for anyone who shares my belief to vote against all of them for it. The decision to defend and perpetuate this unjust system of bail, and the decision to continue the fight after Judge Rosenthal’s forceful and sweeping ruling, is a political one and it deserves a political response. The people should be fully informed about their judicial candidates, and at least in this election, the party label is a crucial piece of that information. Anyone who would advocate otherwise needs to account for that.

I should add, by the way, that even in the absence of this lawsuit or a willingness to finally settle it, the party label still matters. I can believe, based in large part on the precinct date that we’ve been over multiple times, that at least some of these Republican judges did not vote for Donald Trump last year. Good for them. But there’s no evidence in the data from previous years to suggest that they did anything but vote for Dan Patrick and Ken Paxton and Ted Cruz. I for one believe it is also valid and appropriate to vote against people who voted for Patrick and Paxton and Cruz. I understand that some babies may get defenestrated along with the bathwater in doing so. I’m willing to accept that. Some day, when Republicans are nominating better people than Patrick and Paxton and Cruz, I’ll reconsider. Until then, I say partisan considerations in selecting judges have a lot more value than some people are willing to give them.

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