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Darrell Jordan

Appeal of bail injunction dropped

Elections have consequences, and thank goodness for it.

Less than a week after the new jurists were sworn into office, Harris County’s misdemeanor judges on Monday withdrew their appeal in the landmark lawsuit over local bail practices that a federal judge said unfairly targeted poor people accused of crimes.

The historic litigation began in 2016, when attorneys and civil rights groups sued the county on behalf of defendants jailed for days because they couldn’t afford bond on low-level offenses. Though Chief U.S. District Judge Lee H. Rosenthal said the practice was unconstitutional and amounted to wealth-based detention, so far the county has spent more than $9 million in legal fees to fight the case, according to Harris County Precinct 1 Commissioner Rodney Ellis.

But many saw the Democratic wave in November’s elections as a sign of change ahead – and Monday’s court filings look to be one of the first indicators of that shift.

“It’s going to be a new day,” Neal Manne, attorney for the plaintiffs, said in November just after the ballot-box sweep. And now, according to Judge Darrell Jordan – the one misdemeanor judge who did not lose his bench in the last election – the parties have already begun hashing out a settlement they hope to have in place in the next few weeks.

“Our goal is have this accomplished by February 1, 2019,” Jordan told the Houston Chronicle.

One of a series of documents filed in recent days, the two-page motion simply lists the names of the new judges – who automatically replaced their predecessors as defendants in the suit – and asks that the case be dismissed. The court granted the motion and dismissed the appeal by mid-day.

[…]

Mike Fields, the one outgoing judge who supported the lawsuit, lauded the move as a “great first step” toward reform.

“Quite frankly, it’s overdue,” he said. “I remain convinced that fighting against bail reform was a mistake and, I believe, part and parcel of why the citizens of Harris County voted for such a sweeping change in our political landscape. Hopefully, this issue will, finally, be put to bed and taxpayer money better spent going forward.”

[…]

Meanwhile, the Harris County Attorney’s Office issued a statement expressing confidence in the possibility of a settlement.

“The County Attorney’s Office supports the newly-elected judges in their effort to resolve this case on terms they find acceptable,” County Attorney Vince Ryan said in a statement. “This is a case about judicial discretion.”

The next hearing, in Rosenthal’s court, is slated for Feb. 1.

Out-fricking-standing. The new judges are now represented by a pro bono attorney, instead of the high-priced guy that had been arguing the case in court. What this means is that the injunction will remain in place while the settlement is hashed out, with no further briefs or arguments or whatever else before the Fifth Circuit. (The last update I had on this was from August; I don’t think there was any other business on the agenda, but if there was it’s now moot.) Perhaps once we get this settlement in place we can stop outsourcing inmates once and for all. Now we need the city of Houston to get its act together and follow the county’s lead. Bottom line is that this, as much as anything, is what I wanted from the 2018 election. Well done, y’all.

There better be a bail lawsuit settlement

I mean, duh.

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 costly trial.

[…]

Standing with [plaintiffs’ attorney Neal] 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.

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 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.

Basically, at this point there’s no one in power that wants to see this continue. County Judge-elect Hidalgo, County Commissioner-elect Garcia, and all of the incoming misdemeanor court judges ran on ending the lawsuit and implementing bail reform. We just need to do it, and we have every right to expect results after the new officials and judges are sworn in.

ACLU goes after Judge McSpadden

As well they should.

The ACLU of Texas is asking Harris County’s longest serving felony court judge to resign after making a statement to the Houston Chronicle on his views about black men’s attitudes toward the criminal justice system.

The civil rights group also is asking that the judge be automatically recused from cases involving African-American defendants until an investigation into potential racial bias occurs, according to a news release Tuesday.

[…]

“If there remained any doubt that the deck is stacked against people of color in our criminal justice system, Michael McSpadden just dispelled it,” said Terri Burke, executive director of the ACLU of Texas. “When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can’t be trusted, it’s time to take action. This kind of flagrant racism has no place in our justice system.”

She said, “The Texas Commission on Judicial Conduct needs to take the first step toward rooting it out, and Judge McSpadden should voluntarily step down.”

McSpadden could not be immediately respond to a request for comment Tuesday. His court staff said he was on the bench hearing cases.

The civil rights organization said McSpadden’s comments violate the Texas Code of Judicial Conduct and could merit removal from office.

“Judge McSpadden’s remarks are inexcusable, but not at all surprising for those of us who know the justice system well,” said former death row inmate Anthony Graves, who runs a criminal justice initiative for the ACLU of Texas.

See here for the background. Perhaps there’s some context Judge McSpadden can add to his comments, or perhaps he could just admit that was a dumb and offensive thing to say and offer an apology for it. People may or may not accept either action, but at least it would be something. In the absence of any such followup, one is left to conclude that he has nothing further to say on the matter. Whatever one may have thought of Judge McSpadden before now, that’s not a good look. And as a reminder, Judge McSpadden is up for election this fall. For all the griping some people do about partisan judicial elections, they do at least give the voters the chance to correct errors on the bench.

On a side note, two of Judge McSpadden’s colleagues on the misdemeanor courts are again urging the county to settle the bail lawsuit.

“The most conservative appellate court in this country, strict constitutional conservatives, have said that this practice that we are doing is unconstitutional,” said Judge Darrell Jordan, one of the defendants in the lawsuit.

Jordan told County Judge Ed Emmett and county commissioners that fighting the suit had already cost Harris County $6 million in legal fees. “I’m asking that you all cut this last check, fire these $6 million lawyers, let the County Attorney’s office come, and we all sit down and work out a settlement.”

Jordan’s co-defendant, Judge Mike Fields, urged Emmett and the commissioners to “use every tool in your arsenal to help us settle this lawsuit.” Fields added, “Our county needs to settle this for financial reasons, and our public needs it settled for reasons of good governance and confidence in the criminal justice system.”

Judge Emmett said he’s willing to settle on the basis of the 5th Circuit’s ruling, but said plaintiffs haven’t responded to offers to talk.

Judge Jordan, the lone Democrat on these benches, and Judge Fields have been the lone voices from those courts for sanity. Unfortunately, their colleagues remain uninterested in such matters as the cost of the litigation and the fact that they’ve lost at every step and looked bad in doing so. And they’re all up for election this November. See my comments above on that.

Fifth Circuit hears bail lawsuit arguments

Big day in court.

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.

[…]

[Judge Catharina] 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.

See here and here for some background, and here for a Chron preview; I’ve been following this for awhile so if you’re a regular reader this should mostly be familiar. The Trib adds some details.

The judges repeatedly peppered Cooper with questions about the county’s probable cause hearings, in which judicial officials called hearing officers hear the charges against a defendant, evaluate reports from pretrial interviews and occasionally alter bail. The plaintiffs have argued that defendants are not allowed to speak at these hearings, which Haynes and Prado jumped on.

“They’re called hearing officers. Is there a hearing or do they just look at the form and make a decision?” [Judge Edward] Prado asked.

When Cooper contended that they did, Haynes cut him off: “But they can’t speak. What is a hearing if you’re not going to listen?”

[…]

In his argument, Cooper cited multiple county reform efforts that have taken place since the court order took effect in June. In July, the county began using a new risk assessment tool to better recommend to judicial officers setting bail when low-risk offenders should be released on personal bonds. He said, though no data has been recorded in the court, that release on personal bonds has increased.

Haynes questioned whether it was worth sending the case back to the lower court to find new facts since the reforms have taken place. Karakatsanis argued the new facts are unknown, and that there is nothing in the court record to corroborate Cooper’s statements.

County Judge Darrell Jordan, the only Harris County judge who rejected money bail for indigent defendants before the ruling, was at the arguments and said afterward that he wished there was an opportunity to talk about the system under the changes. Overall, he said, the process hasn’t changed.

“If it is sent back to the lower court, then the numbers will show what is going on,” he said. “People are still being placed in jail, and they can’t afford to get out.”

It is unknown when the judges will make a decision whether to uphold Rosenthal’s ruling, overturn it or send it back to the lower court. But after the ruling, Karakatsanis said he was optimistic the court will stand by Rosenthal’s injunction.

“The order that they’re appealing from is based on very solid evidence, and they’re asking for it to be overturned,” he said. “You can’t just come in front of higher courts and say, ‘Well, facts are totally different from what happened…’ without any citation.”

All three judges were Bush appointees, by the way, one by 41 (as was trial judge Rosenthal) and two by 43. My layman’s reading of this is that the judges were far more skeptical of the county than of the plaintiffs, but they clearly found the 24-hour requirement to have a hearing or release a defendant questionable. If they want to modify that it’s probably not a big deal, but beyond that I hope they uphold the ruling. They’ll issue their opinion when they’re damn good and ready.

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.

“What are we fighting for?”

That’s the key question for the county in the bail lawsuit.

As legal costs mount, surpassing $200,000 per month, pressure is building for Harris County officials to settle a lawsuit over the county’s cash bail system that a federal judge has ruled unconstitutional.

Newly available documents reveal that teams of defense lawyers are racking up massive ongoing expenses, including one lawyer on retainer since June at $610 per hour and a Washington, D.C. appellate lawyer on board since mid-April at $550 per hour.

Among the two dozen county officials named as defendants in the civil suit, one is fed up.

“It’s time to settle,” said Criminal Court at Law Judge Darrell Jordan. “What are we fighting for?”

A settlement offer remains on the table from lawyers representing poor people stuck in jail for misdemeanor offenses because they could not afford cash bail. But none of the other defendants in the suit has budged, according to attorney Neal Manne, whose firm donated its services in filing the suit with two civil rights organizations.

First Assistant County Attorney Robert Soard said Friday he anticipates his office will have a recommendation for the Commissioners Court meeting Tuesday morning. Discussion of the case is included on the Commissioners Court agenda, with possible action to follow.

As of Friday, however, the county has been billed about $2.85 million by outside counsel – a cost the county attorney’s office says is not out of line given the number of defendants and a local criminal justice system that is one of the largest in the nation.

[…]

On Friday, Criminal Court at Law Judge Jordan hand-delivered a letter to County Judge Ed Emmett asking that he be allowed to settle the case immediately.

Emmett spokesman Joe Stinebaker explained the office’s response to Jordan’s letter.

“Judge Emmett has no authority whatsoever to allow or prevent any of the defendants in this suit from taking any action they deem appropriate,” he said.

The formalities were of little importance to Jordan, who said it seems obvious the county should settle, given Rosenthal’s comments that the indigent defendants are likely to prevail at trial.

It’s true that Judge Emmett doesn’t have the authority to make a settlement happen. So let’s be clear about who can make it happen: The County Court judges who are the defendants in the case and who (other than Judge Darrell Jordan, the lone Democrat among them) have insisted on continuing to fight, and County Commissioners Jack Morman, Steve Radack, and Jack Cagle, who have the authority to tell the judges that they will not pay for any further litigation. They have the opportunity to express that opinion on Tuesday. If they do not – if they vote to continue paying millions of dollars to outside counsel in pursuit of a losing and unjust cause – then we know whose responsibility this is.

Harris County bail system ruled unconstitutional

Damn right.

A federal judge in Houston Friday issued a scathing denouncement of Harris County’s cash bail system, saying it is fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail.

In a 193-page ruling released Friday, Chief U.S. District Judge Lee H. Rosenthal ordered the county to begin releasing indigent inmates May 15 while they await trial on misdemeanor offenses.

Rosenthal concluded the county’s bail policy violates the due process and equal protection clauses of the Constitution.

“Liberty is precious to Americans and any deprivation must be scrutinized,” the order states, citing a comment from Texas Supreme Court Chief Justice Nathan Hecht.

The judge also granted “class-action” status to the case, meaning that her findings will apply to all misdemeanor defendants taken into custody.

The ruling – a temporary injunction that will remain in place until the lawsuit is resolved pending appeal – will not apply to those charged with felonies, or those who are being detained on other charges or holds.

First Assistant County Attorney Robert Soard said late Friday officials are reviewing the orders.

“No decision has been made at this time concerning an appeal of the preliminary injunction,” he said.

See here for the background, and here for a copy of the ruling. Grits highlights a key aspect of it.

Judge Rosenthal heard testimony from the Hearing Officers setting bail amounts on the front lines and poignantly found them non-credible: “The Hearing Officers’ testimony that they do not ‘know’ whether imposing secured money bail will have the effect of detention in any given case … and their testimony that they do not intend that secured money bail have that effect, is not credible.” In fact, she attributed “little to no credibility in the Hearing Officers’ claims of careful case-by-case consideration.” In the hearings she watched, they “treat the bail schedule, if not binding, then as a nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount.”

If Judge Rosenthal were Politfact columnist, she’d be giving the Hearing Officers a “Pants on Fire” rating. To the extent that appellate courts must rely on her credibility assessments, and on many topics, they must, those lines may well preclude quite a few appellate paths for the defendants.

Her critique extended beyond the Hearing Officers, though to elected judges acting as “policymakers” overseeing Harris’ County pretrial-detention mill, whom she found to be willfully and conveniently ignorant about the human impact of they system they’re running:

policymakers are apparently unaware of important facts about the bail-bond system in Harris County, yet they have devised and implemented bail practices and customs, having the force of policy, with no inquiry into whether the bail policy is a reasonable way to achieve the goals of assuring appearance at trial or law-abiding behavior before trial. In addition to the absence of any information about the relative performance of secured and unsecured conditions of release to achieve these goals, the policymakers have testified under oath that their policy would not change despite evidence showing that release on unsecured personal bonds or with no financial conditions is no less effective than release on secured money bail at achieving the goals of appearance at trial or avoidance of new criminal activity during pretrial release.

That’s exactly right – they’re not going to change unless somebody makes them, and Judge Rosenthal clearly has decided she’s that somebody.

I would note that all of those elected judges are Republicans (*), and they are all up for re-election next year, so there is another way to force a change here. In the meantime, I have to ask again, why are we even still fighting this? What principle are we defending? Why are we writing checks to fat cat Washington DC Republican lawyers to “advise” on whether or not to appeal? Stop the madness and stop wasting my tax dollars on this crap, and settle the damn lawsuit already. It’s the right thing to do on every level. District Attorney Kim Ogg wants to settle. Sheriff Ed Gonzalez wants to settle. Commissioner Rodney Ellis wants to settle. Everyone else needs to get in line.

(*) The judges in question preside over the County Courts, where misdemeanors are heard. County Court Judge Darrell Jordan, who was elected in 2016 to fill a newly-created bench, is the lone Democrat. He also is the lone judge to favor settling.

Sheriff Gonzalez testifies in bail practices trial

He says on the stand what he has been saying elsewhere.

Sheriff Ed Gonzalez

Harris County Sheriff Ed Gonzalez took the witness stand for an hour Wednesday afternoon in a closely watched federal civil rights case that is challenging whether it is constitutional to impose monetary bail on people arrested for minor offenses if they cannot afford to pay it.

Gonzalez confirmed his opinion that the money bail system is arbitrary, unfair to poor defendants and undermines public safety.

“I personally do not believe it’s a rational system,” he said. “It should be equal protection for everyone.”

When an attorney representing Harris County judges asked him about the death rate at the jail being lower than outside the jail, the federal judge interrupted and asked if he was suggesting jail was a better place to be. The attorney, John O’Neill reframed the question.

[…]

Gonzalez sat in court at the defense table for three hours Wednesday morning, listening as another opponent of the bail system testified about a system he said “doesn’t pass the laugh test.”

See here and here for some background. Sheriff Gonzalez was not the only elected official to take the stand.

Harris County Criminal Court at Law Judge Darrell Jordan, on the bench since January, also testified Wednesday before Rosenthal about his experience as a defense attorney and now as judge who must make dozens of bail decisions each day. He has begun releasing misdemeanor defendants on personal bonds if they have no holds. If they have risk factors or holds he has a conversation to see what they can afford.

Jordan said he’s seen in other courts that innocent defendants often plead guilty if they can’t make bail, just so they can get out and maintain their livelihoods.

The county is in the process of reforming its system of assessing defendants’ flight risk and setting bail. In the meantime, plaintiffs are asking Rosenthal to impose a temporary injunction, making immediate fixes so that bail is made easier for nonviolent defendants. Rosenthal asked Jordan if he believed the county would stop running a system in which people plead guilty because they are poor without an injunction.

His answer: “No.”

I think the fact that we’re having a trial over this is pretty good evidence to that effect as well. I can’t wait to see what the defense’s case looks like. The Press has more.

Endorsement watch: Bail matters

For only the second time this cycle, the Chron endorses a challenger to a sitting judge.

Darrell Jordan

Darrell Jordan

Harris County’s criminal courts at law are currently defendants in a lawsuit alleging that pretrial bail policies violate the U.S. Constitution. It is a serious charge, and those misdemeanor-level courts are undeniably crowded more with the poor than with dangerous criminals.

However, when she met with the Houston Chronicle editorial board, sitting judge Linda Garcia struggled to see how her court fit into this system that prioritizes wealth over innocence.

“I don’t think there’s a systemic unfairness in my court,” Garcia told the Houston Chronicle editorial board. “If I did, I would address it.”

Gov. Greg Abbott appointed Garcia, a Republican, to Harris County Criminal Court at Law No. 16 in 2015, and she is certainly qualified to hold the position. However, Harris County needs a judge who can see the problems clearly, and Democratic challenger Darrell Jordan is the right candidate.

Jordan was one of the judicial candidates selected by Democratic precinct chairs, as this is a new court that was created after the primary filing deadline. Here’s the revisited Q&A for Jordan, who first ran for a judicial office in 2010. I’ve written several times about the lawsuit over bail practices in Harris County. This is the only race on the ballot that is affected by that, but given this endorsement it won’t surprise me if the bail practices of the district criminal court judges are scrutinized as well.

Maldonado and Jordan win court nominations

Last night at the quarterly Harris County Democratic Party County Executive Committee meeting, HCDP precinct chairs selected the nominees for the two newly-created judicial positions. It was a long meeting – it took some time to sign all the precinct chairs in, and there was some normal business to conduct before we got to the voting – but it was a civil process, with no challenges to the way it was conducted.

For the 507th Family District Court, the six candidates that I have been writing about here were all duly nominated and seconded, with no other candidates showing up at the last minute. Each had two minutes to speak, then we voted, using division of the house as we eventually did this past Saturday. This took the longest amount of time, as there were a lot of people moving around and a lot of noses to count, but in the end the top two candidates were Shawn Thierry and Julia Maldonado. After those totals were agreed upon, the voters for the other candidates had the opportunity to join one of those two remaining groups. Maldonado wound up collecting the bulk of the other candidates’ supporters, and won the runoff by the margin of 123 to 115.

The County Criminal Court at Law #16 process was much quicker, as there were only three candidates and it was easier dividing the room into discrete groupings. Darrell Jordan and Raul Rodriguez were the leaders, and after David Singer’s supporters made their second choice, Jordan maintained his lead and won the nomination.

I voted for Maldonado in both rounds for the 507th, and for Singer followed by Rodriguez in the 16th. Both were tough choices, and I didn’t really settle on whom to support until I was there. I was happy with all of the candidates, and they each acquitted themselves well in their brief speeches. Congratulations to Maldonado and Jordan for coming out on top.

There was a lot of energy in the room, and even as we all left, I got the sense that people were still basically happy, whether their candidates had won or not. It’s a good feeling going forward.

Next up: Judicial nominations

vote-button

With the nomination for Commissioners Court settled, all that’s left for me to do as Precinct Chair is participate in the process to select nominees for the two new courts, the 507th Family District Court and the County Criminal Court at Law #16. As a reminder, here are the new and revisited Q&A’s I published over the last two weeks for the candidates in these races:

507th Family District Court

Jim Evans
Julia Maldonado
Sandra Peake
Chip Wells
Germaine Tanner
Shawn Thierry

County Criminal Court at Law #16

David Singer
Darrell Jordan
Raul Rodriguez

Maldonado, Wells, Thierry, Singer, and Rodriguez were all there on Saturday as candidates. Peake was there as a precinct chair. I don’t know if she voted for a Commissioners Court candidate or not; she had previously sent out an email saying she would abstain from voting, due to her status as a candidate for the 507th. That message led to an email from another chair who called on her to resign from the race in the 507th on the grounds that she had violated the Texas Code of Judicial Conduct by having been listed as one of Rodney Ellis’ supporters prior to the Saturday meeting. Her name is still on that list, so she may have some questions to answer.

There apparently remains some bad blood between Peake and Maldonado stemming from the 2014 primary in which they both competed for the nomination for the 246th Family Court (Peake eventually won the primary by a 51-49 margin). Maldonado filed a complaint against Peake prior to the election alleging that she had an insufficient number of petition signatures. Greg Enos highlighted some of the testimony from the hearing, in which Maldonado ultimately failed to receive injunctive relief. An anonymous (of course) mailer last week brought all of this up, including the same testimony that Enos flagged. I have no idea if this was intended as a hit piece on Maldonado or on Peake because it was anonymous (duh!) and because I barely glanced at it, awash as I was with Precinct 1 mail at the time.

That and the argument about statistics and qualifications have been the main points of contention in this race. Maldonado, Tanner, and Thierry have been the most active in sending email to precinct chairs, with Maldonado and Tanner being the most vocal about qualifications. Chip Wells and Sandra Peake have been much more quiet, and Jim Evans has been basically invisible. I bring this up mostly to note that the lesson everyone should have learned from Saturday is that no one is actually a candidate for any of these positions unless they know for a fact that at least one precinct chair intends to nominate them for the position. My advice to all nine candidates – the 16th Criminal Court at Law race has been far more sedate – is to make sure you have a commitment from a precinct chair for that.

Judicial Q&A revisited: Darrell Jordan

As you know, in addition to selecting a Democratic nominee for County Commissioners Court in Precinct 1, precinct chairs everywhere in Harris County will get to select two judicial nominees, for newly-created courts. There are three people who have expressed an interest in the new County Criminal Court at Law #16. All three have submitted judicial Q&As to me for prior candidacies. I will be revisiting these for the test of this week.

Darrell Jordan was a candidate for the 180th Criminal District Court in 2010. Here are the responses he sent to me for the March primary that year.

Darrell Jordan

1. Who are you, and what are you running for?

My name is Darrell Jordan and I am running for the 180th Criminal District Court. I am married to Dr. Rhonda Jordan and we have two children Ashley and Andrew.

2. What kind of cases does this court hear?

This court handles felony cases. Felony cases are the most serious criminal cases such as murder, aggravated robbery, and sexual assault. The sentences in these cases can range from a period of probation to life imprisonment or in some instances death.

3. Why are you running for this particular bench?

I am running for this bench because I want to restore justice to the Harris County Criminal Justice System. I will work to promote courtroom efficiency by ensuring swift justice for victim and offender, saving Harris county tax payer dollars and creating safer communities as well.

4. What are your qualifications for this job?

As a criminal defense attorney I practice exclusively in the area of criminal law. In the past year my caseload exceeded 100 cases. In addition to that I have proudly served for the past 8 years in the United States Army Reserves, currently serving in the rank of Captain in the JAG Corps. In this role, I serve as a recorder (prosecutor) on separation boards. In addition, I serve as legal advisor providing answers to questions of law to the board (jury). I have also served in the Texas House of Representatives as a policy analyst for Rep. Hubert Vo and as legal counsel for Sen. Rodney Ellis.

5. Why is this race important?

This race is important because there is nothing greater than freedom. I believe in due process and my duty to ensure that it is carried out. As a judge I view my position as the last stop to ensure that justice is done in each and every case for victim and offender.

6. Why should people vote for you in the primary?

People should vote for me because I will ensure that justice will prevail in the courtroom. I know what needs to be done to ensure justice and strongly believe in my ability to get the job done correctly. I will support the Public Defender’s Office 100%. I will also implement a morning and afternoon docket in my courtroom. This will allow defendants to get their day in court as quickly as possible and it will also save the citizens of Harris County money by reducing the jail population.

Update on the nomination selection processes

vote-button

In six days, Democratic precinct chairs in County Commissioners Court Precinct 1 will select a nominee to replace the late El Franco Lee on the November ballot. In 11 days, all Democratic precinct chairs will select nominees for the 507th Family Court and the County Criminal Court at Law #16. This is a brief update on activity related to those races.

About a week ago, I received a letter addressed to precinct chairs concerning the 507th Family Court race. It was sent by fellow precinct chair Natalie Fairbanks and it enumerated the number of Harris County family court cases that each of the six known candidates had been involved in since 2008. I did a scan of the letter, which you can see here. A couple of days later, candidate Germaine Tanner sent an email to precinct chairs arguing that the data in the Fairbanks was inaccurate and incomplete, as all the attorneys in question have been practicing since well before 2008 and the count of cases did not include those “that were filed as post-divorce proceedings between the years 2008-2015, but with a case number that preceded the year 2008”. You can see this email here. Later that same day, candidate Julia Maldonado sent her own email pointing out that there are qualifications beyond number of cases worked, such as board certification, and that some attorneys handle cases outside of Harris County as well. You can see that email here.

As for the County Criminal Court at Law #16 race, the HCDP lists three candidates who have stated an interest in that nomination. Two of them have made themselves known to precinct chairs recently. David Singer, who up till recently was the only candidate I was aware of for this position, sent a letter to precinct chairs outlining his background and qualifications. I thought he had also sent that via email, but if so I can’t find it. This is the back side of his push card from the March primary for the 177th Criminal District Court, which is from an email he did send to precinct chairs in February. It’s a succinct summary of what was in the letter. Last week, I received an email from Darrell Jordan, who was a candidate for the 180th Criminal District Court in 2010. You can see that email here. The third candidate in this race is Raul Rodriguez, who had run for the 174th Criminal District Court this March and like Singer had been a candidate for one of the County Criminal Courts in 2014. I’ve not yet heard anything from him on this race. I do have Q&As from all three from past candidacies – Singer and Rodriguez for 2016, Jordan for 2010 – and will be revisiting those this week.

Finally, on the Commissioners Court race, candidate Georgia Provost made a pair of robocalls to precinct chairs this week. It was the first contact from a candidate not named Ellis, Locke, or Boykins that I received. And I have to say, of all the ways available to reach out to voters, I have no idea why she chose the robocall route. Robocalls have their place in the firmament – they’re a pretty efficient way of reminding people that there is an election in the first place – but given that nobody listens past the first five or ten seconds and you don’t know who actually picked up the phone, why would you do that for a more detailed sales pitch like this race? I mean, there’s 125 voters total for this race. At a very leisurely pace of five contacts per day, you could reach everyone in less than a month, and ensure that you personally get to talk to them. I can’t imagine a less effective strategy for a race like this than robocalls.

Finally, a few days ago I received a letter from Rep. Harold Dutton endorsing Gene Locke for the position. To the best of my admittedly spotty recollection, it’s the only letter I’ve received from an elected official endorsing someone other than Rodney Ellis. At the very least, it’s the only one I’ve received recently from an elected official.

Six days till we pick a Commissioner. Eleven days till we pick two judicial candidates. Hang in there, y’all.

Former Trooper Encinia pleads not guilty in Sandra Bland perjury case

As expected.

Sandra Bland

A former Texas trooper pleaded not guilty to charges he lied about his actions last July while arresting Sandra Bland, whose death in Waller County’s jail three days later sparked a national outcry from civil rights activists.

Dressed in a gray suit and tie and flanked by his attorneys, former Department of Public Safety Trooper Brian T. Encinia said little Tuesday afternoon during a minutes-long arraignment hearing before State District Judge Albert M. McCaig Jr.

[…]

In an arrest affidavit, Encinia said he had ordered Bland out of the car to safely continue the investigation.

A Waller County grand jury indicted Encinia in January of misdemeanor perjury based on that statement, according to a special prosecutor in the case. If convicted, Encinia could spend up to a year in jail and have to pay a $4,000 fine.

Earlier this month, DPS Director Steve McCraw formally fired Encinia, saying he violated the department’s courtesy policy and procedures. Encinia is appealing the termination to the Texas Public Safety Commission. Separately, the trooper is named in a wide-ranging civil lawsuit filed by Bland’s family that alleges negligence and wrongful death. Attorneys representing Encinia in that case have asked – unsuccessfully – that it be delayed while his criminal trial plays out. The civil trial is set to begin next January.

Bland’s mother, Geneva Reed-Veal, and older sister, Shante Needham, both appeared at the arraignment, along with their lawyer, Cannon Lambert.

“To come all this way, I needed to do it,” said Bland’s mother after the hearing, as she embraced those who’d gathered in support of her and her family.

“I’m hopeful things go in the direction that [Encinia] eventually gets detained and he can remain there for the maximum amount of time that perjury carries,” Needham said. “At the end of the day, my sister, my mother’s daughter, is no longer here anymore. He needs to be held accountable for his actions.”

See here and here for the background. The Trib quotes Encinia’s defense attorney blaming his indictment on a “runaway” grand jury. I dunno, I thought that video of the traffic stop made it quite clear that at the very least, Encinia was unprofessional and antagonistic. We can argue if his behavior qualifies as perjury, but let’s see what happens in the courtroom first. And let’s not overlook the fact, as Grits notes, a law enforcement officer being called to account at all like this is quite unusual. A conviction, if it comes to that, would be even more so. The Press has more.

Trooper Encinia turns himself in

As expected.

Sandra Bland

Six months after arresting Sandra Bland during a now-infamous traffic stop, state trooper Brian Encinia on Thursday returned to the Waller County jail where Bland died – this time to surrender to authorities on perjury charges.

Encinia, 30, surrendered to Texas Rangers after a Waller County judge signed his arrest warrant, Sheriff R. Glenn Smith said. The Rangers took the trooper to the jail, where he arrived in a gray pickup at 3:26 p.m.

Encinia was fingerprinted, photographed and released on a $2,500 bond.

[…]

Darrell Jordan, one of five special prosecutors, said the grand jury’s indictment stemmed from Encinia’s statement, in an affidavit he filed in Bland’s arrest, that he pulled her out of her Hyundai Azera to “further conduct a safe traffic investigation.”

“They just didn’t believe it,” Jordan said, referring to the grand jurors.

Bland’s family and activists who have followed the case said the perjury charge was insufficient. Geneva Reed-Veal, Bland’s mother, compared the indictment to a “slap on the wrist.”

Cannon Lambert, who is representing the family in a civil lawsuit, questioned why the grand jury had not agreed on harsher charges, such as battery or false arrest. Encinia’s lawyer, Larkin Eakin, said Thursday the trooper planned to plead not guilty. The grand jury, Eakin said, misinterpreted Encinia’s statement.

“He is obviously upset but feels very much that he’s not guilty, that that particular phrase he used (in his affidavit) was proper,” he said.

See here for the background. He will be pleading not guilty, while also appealing his termination from DPS. I don’t want to make too big a deal about it because the respectful way that Trooper Encinia was treated during his arrest and arraignment should be the default and not the exception, but the contrast between how he was treated and how Sandra Bland was treated couldn’t be more stark. As for the matter of whether the charge against Encinia represents some kind of justice or not, I’ll simply note that such a question is predicate on whether or not he gets convicted. As commenter Steve Houston notes, there is considerable doubt about that. Texas Monthly has more.

Grand jury indicts trooper in Sandra Bland case

Wow.

Sandra Bland

Waller County grand jurors indicted Department of Public Safety trooper Brian Encinia on a single charge of perjury Wednesday because they did not believe he was telling the truth about his actions during the arrest of Sandra Bland, special prosecutor Darrell Jordan confirmed.

The charge against Encinia stems from the trooper’s statement at the time of her arrest on July 10 about why he felt he needed to pull her out of her own vehicle, Jordan told The Texas Tribune.

“The statement in the probable cause statement is that Officer Encinia pulled her out of her car to further the traffic stop investigation,” Jordan said.

As a result of the indictment – the only one issued by the grand jury in the Bland case – a warrant will be issued for Encinia’s arrest. It was not immediately known whether Encinia will turn himself into authorities. If convicted of the charge, Encinia could face up to a year in the Waller County Jail and a $4,000 fine.

“This grand jury is done,” Jordan said. “We just came to do our job to present the evidence and they came back with an indictment and we’ll go forward to seek justice on behalf of Waller County.”

The grand jury had previously declined to indict anyone, including county jail employees, in the death of Sandra Bland, then reconvened on Wednesday to continue considering charges. I have no idea what the evidence looks like right now, but it’s not too hard to imagine the possibility of the trooper fudging his facts. We will have to wait to see what the prosecution’s case looks like, and to see how Officer Encinia responds. The Chron, the Press, which has a copy of Officer Encinia’s sworn statement, Newsdesk, ThinkProgress, and Daily Kos have more.

UPDATE: More from Grits for Breakfast.

Three panels investigating Sandra Bland’s death

One was appointed by the Sheriff:

Sandra Bland

In the wake of the controversial arrest of Sandra Bland and her jailhouse suicide, Waller County Sheriff R. Glenn Smith has asked for an independent panel of civilians to evaluate all aspects of the way he runs his department, from the cell blocks to the streets, and make public recommendations for change.

“He wants to use this tragedy as a growth opportunity,” said long-time defense attorney Paul Looney, who has been asked by the sheriff to form the five-member committee.

[…]

“We have been given carte blanche. We have been told we’ll have access to any piece of paper we want. We can visit with any prisoner or person without notice,” Looney said. “We can go on ride-alongs,” he said of riding in patrol cars with deputies to observe them first-hand.

Looney said the committee will be a diverse group of leaders and that none will be in law enforcement. He also said they won’t pull any punches in making recommendations, which will be shared with the public.

“In a time period of great tragedy, there is also a great opportunity for growth, and he doesn’t want to miss that opportunity,” Looney said of the sheriff. “I don’t intend to be kind, the people I include on the committee will not be kind. We intend to be constructive.”

One was appointed by the District Attorney:

Waller County District Attorney Elton Mathis formed a second independent committee Monday to review the arrest and death of Sandra Bland and also released a toxicology report that one expert said suggests the 28-year-old woman used marijuana shortly before jailers found her hanging in her Waller County Jail cell.

Mathis said he was bringing in defense attorneys Lewis M. White and Darrell W. Jordan, both of whom are African-American, to lead a panel that will oversee the work of his office and make recommendations about charges for possible criminal conduct during the arrest and confinement.

“There are many lingering questions regarding the death of Sandra Bland,” Mathis said, explaining why he has asked for help just days after Waller County Sheriff R. Glenn Smith formed a similar committee to review jail procedures.

[…]

The announcement that officials were forming another independent review committee did not build much trust with critics.

Former Waller County Justice of the Peace Dewayne Charleston said he didn’t know White or Jordan, so he couldn’t speak to their abilities or loyalties, but questioned any committee whose leaders are “appointed by the same person they are providing oversight for.”

“He’s not bound to take their advice, suggestions or recommendations, so it’s just window dressing,” said Charleston, who has called for Mathis to recuse himself from the case. “They could give him the best, most accurate recommendation but if he’s not obligated to accept it or just takes parts of it, it doesn’t really matter.”

Both White and Jordan have limited prosecution experience, graduated from Texas Southern University’s law school and work in small firms with five or fewer attorneys, according to the Texas State Bar’s website.

White, who passed the State Bar in 2002, worked under Mathis as a prosecutor for a year. Jordan, who passed the bar in 2006, has served as a prosecutor in the Army National Guard, where he still is a defense attorney. Jordan also has worked as a talk radio host for KCOH, part of the broadcasting company owned by Houston mayoral candidate Ben Hall.

Vivian King, a prominent Houston defense attorney and former prosecutor, said she did not know White, but had confidence in Jordan, who she had as a student at TSU.

“I think he’s confident and smart and will ask for guidance where he needs it,” she said. “He does care about getting it right.”

JoAnne Musick, the president of the Harris County Criminal Lawyers, said the decision to bring in someone familiar with the county, like White, might give the duo a useful perspective. But she said that insider status also could undermine the public’s trust in the process.

“Houston is a very close and large area with tons of experienced former prosecutors and defense attorneys that could undertake that review,” she said, noting she knows neither White nor Jordan. “Their selection seems a little odd.”

Musick is one of five people selected by Hempstead and Houston attorney Paul Looney to serve on the sheriff’s review committee, which has not yet met. On Monday, Looney identified the others: Juan L. Guerra Jr., criminal defense lawyer; Randall Kallinen, civil rights attorney; Morris L. Overstreet, a former judge on the Texas Court of Criminal Appeals; and former U.S. Rep. Craig Washington.

Jordan ran in the 2010 Democratic primary for judge of the 180th Criminal District Court. Here’s the judicial Q&A he did if you want to know a little more about him. The Sheriff’s panel has several well-known people on it, and I think they will live up to Looney’s promise that they will not hold back.

There will also be a legislative hearing:

The same day Waller County officials released results of Sandra Bland’s autopsy report, state lawmakers announced they will meet next week to discuss jail standards and police relations.

Members of the House County Affairs Committee, chaired by Houston Democrat Garnet Coleman, on Thursday will discuss “jail standards, procedures with regards to potentially mentally ill persons in county jails, as well as issues stemming from interactions between the general public and peace officers.”

That hearing will be tomorrow, July 30. Here’s the press advisory from Rep. Coleman, who can always be counted on to do a thorough job, and more on the hearing in the Trib. We need to learn all we can from this tragedy, and then to actually follow through on it, or we’re just going to keep having more like it. Still more here from the Trib.

Judicial Q&A: Darrell Jordan

(Note: I am running a series of Q&As for judicial candidates in contested Democratic primaries. There are a lot of judicial races on the ballot in Harris County this election, and so this is intended to help introduce the candidates and their experiences to those who plan to vote in March. I am running these responses in the order that I receive them from the candidates. I will also be conducting some in-person interviews of candidates who will be involved in contested primaries for non-judicial offices. Please see my 2010 Election page for a full list of Q&As and interviews.)

1. Who are you, and what are you running for?

My name is Darrell Jordan and I am running for the 180th Criminal District Court. I am married to Dr. Rhonda Jordan and we have two children Ashley and Andrew.

2. What kind of cases does this court hear?

This court handles felony cases. Felony cases are the most serious criminal cases such as murder, aggravated robbery, and sexual assault. The sentences in these cases can range from a period of probation to life imprisonment or in some instances death.

3. Why are you running for this particular bench?

I am running for this bench because I want to restore justice to the Harris County Criminal Justice System. I will work to promote courtroom efficiency by ensuring swift justice for victim and offender, saving Harris county tax payer dollars and creating safer communities as well.

4. What are your qualifications for this job?

As a criminal defense attorney I practice exclusively in the area of criminal law. In the past year my caseload exceeded 100 cases. In addition to that I have proudly served for the past 8 years in the United States Army Reserves, currently serving in the rank of Captain in the JAG Corps. In this role, I serve as a recorder (prosecutor) on separation boards. In addition, I serve as legal advisor providing answers to questions of law to the board (jury). I have also served in the Texas House of Representatives as a policy analyst for Rep. Hubert Vo and as legal counsel for Sen. Rodney Ellis.

5. Why is this race important?

This race is important because there is nothing greater than freedom. I believe in due process and my duty to ensure that it is carried out. As a judge I view my position as the last stop to ensure that justice is done in each and every case for victim and offender.

6. Why should people vote for you in the primary?

People should vote for me because I will ensure that justice will prevail in the courtroom. I know what needs to be done to ensure justice and strongly believe in my ability to get the job done correctly. I will support the Public Defender’s Office 100%. I will also implement a morning and afternoon docket in my courtroom. This will allow defendants to get their day in court as quickly as possible and it will also save the citizens of Harris County money by reducing the jail population.