The Defections Begin

I have butted heads with Mike Fields, judge of Harris County Criminal Court at Law Number 14, more than once, and found him a worthy adversary. He is a big guy, imposing both physically and in personality, and he’ll push you around if you let him. That rubs a lot of people the wrong way. But  if you push back, he will yield when you show him he’s wrong, ((When we’ve butted heads, he always has been wrong. But I’m willing to consider the possibility that he won’t always be.)) and shake hands afterward.

Now, citing his conscience, Fields has defected from the judges’ appeal of the bail lawsuit. (As I had said it was time to do.)

The appeal continues, but Fields’s defection gives the other fourteen judges who remain in it some both motivation and cover to defect as well. It’s like a multiple-defendant federal criminal trial: the fewer defendants remain standing, the more quickly the numbers dwindle. Nobody wanted to be the first to defect (that’s the cover) but everybody really doesn’t want to be the last (that’s the motivation).

There is considerable skepticism—which I share—in the criminal-defense bar about whether the judges’ counsel are lying to the court on behalf of their clients when they pretend that county judges had not directed the activity of hearing officers in refusing personal bonds to people who could not otherwise afford to make bail. If that skepticism is correct, it becomes increasingly likely with each additional defection that someone will drop the dime on the judges remaining in the suit.

The judges, I have heard, have an email-retention policy that mandates erasure of emails after two weeks. ((If I were running a criminal enterprise I’d make sure emails got erased as a matter of course too. As Racehorse Haynes said, “the E in email stands for ‘evidence.’ “)) Each subsequent defection makes it increasingly likely that someone who saved, against a rainy day, an email or notes that contradict the story they are telling Judge Rosenthal.

And if that happens, the parallels to a multiple-defendant federal criminal prosecution are going to become even more apparent.

At the hearing on Tuesday, Judge Fields was sitting with Judge Jordan and Judge Standley, apart from their thirteen colleagues.

With Jordan and Fields out, I predict that Standley, a man of conscience if ever there was one, will be the next judge to do the right thing.

6 responses to “The Defections Begin”

  1. The County Criminal Court Judges are caught up in a web of their own deceit. They can Either continue with the false narrative that the magistrates unilaterally decided to systematically deny PR bonds for decades, or they can tell the truth or perhaps they can avoid the whole thing by dropping their appeal.

    Perpetuating a lie in Federal Court is hazardous
    Telling the truth now, after having perpetuated that lie, may be equally hazardous. Dropping the appeal and settling this case NOW, by ending the systematic denial of PR Bonds is the smart move.

    Robb Fickman

  2. I’m asking this as a legitimate question, rather than trying to make some rhetorical point:
    Why would it not serve the greater good for them to continue taking it up through the appeals process – perhaps even to the Supreme Court – where criminal justice reform might actually be championed as an end result?

  3. Because this case isn’t about trying to get some new rule recognized that could help a large population of defendants across the state or nation, like the right to counsel or the right to a Miranda warning (or, here, the right to be released on recognizance if you aren’t a threat to society and truly can’t afford a cash bond).

    The judges seemingly concede that it would be illegal to have a policy that requires cash bonds of every defendant, regardless of their ability to post that bond. Instead, their defense is that there is not now and has never been such a policy.

    The magistrates’ testimony before their state disciplinary committee was that there is such a policy, and that they were only following that policy when they denied PR bonds to misdemeanor defendants who couldn’t afford a cash bond. This hearing was about whether the judges had withheld evidence during the discovery process in the federal case (since the magistrates referred to email instructions that had not been turned over in the federal case).

    The judges’ defense means that there is basically one issue in the case: Was there a policy requiring that all defendants be forced to post a cash bond or sit in jail awaiting trial? That’s a FACTUAL question that will ultimately be answered in Judge Rosenthal’s court, and the answer to such questions is almost never questioned on appeal.

    Society at large benefits when courts answer LEGAL questions (in a way that benefits society at large).

    • Aha. It makes sense now. The question is about a matter of fact, rather than a matter of law. That’s the information you can’t get from a news report, or without reading the court opinion, which is largely unavailable to most people. Thank you.

  4. the E in email stands for ‘evidence

    If we were still in the trial court, I’d probably argue that the two-week deletion policy, knowing that the matter was in controversy, amounted to deliberate spoliation. I would probably feel entitled to a presumption that the e-mails which were not retained would have proved that there was a policy of denying release-on-recognizance and that the intent was to pressure less wealthy defendants to settle.

    The state might argue that there was some legitimate basis for the policy, but it’s a really hard argument to make in this day of huge storage capacities. Also, as a matter of public policy, retaining records of how the government does business is probably desirable.

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