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Another example of why bail reform is needed

This is troubling in a lot of ways, but fortunately there is a path forward.

Since November, eight defendants fresh out of jail on bond have walked into state District Judge Ramona Franklin’s court and been sent right back to jail.

Instead of standing for a routine court hearing in a first step in their criminal court cases, they ended up back in sheriff’s custody after Franklin revoked their bail and ordered them back behind bars, sometimes with no lawyer present for the defendant.

The process has put Franklin at odds with defense attorneys across Harris County who argue she is engaging in behavior that unfairly penalizes defendants who are presumed innocent — and can cause them to lose thousands of dollars they have scraped together to pay their bail.

Defense attorneys say Franklin revoked their bonds without notice or cause, some of them without legal representation. They argue the process is illegal, in a judicial complaint filed earlier this week with the State Commission on Judicial Conduct.

“Many times these people are effectively ambushed,” said Grant Scheiner, with the Texas Criminal Defense Lawyers Association. “They can’t defend themselves and have no access to counsel.”

[…]

When arrested, suspects usually appear before a magistrate who determines probable cause and a bail amount. After posting bail and being released from custody, they have about a day to appear before a district court judge, where they’re expected to be appointed counsel.

But Thiessen and Scheiner said the defendants complied with the rules of their appearance while Franklin violated procedure, going against the mandate recently issued in an appeals court.

“When the court of appeals hands down the decision telling you not to do something and you proceed contrary to that decision, it just shows a lack of respect for the court of appeals and the Constitution,” Thiessen said.

Franklin has said that she asks attorneys to stand in during those proceedings, the defense lawyers said, but no formal appointment or recording of those stand-in attorneys exists.

Most recently in these initial appearances, Franklin has called some of the defendants to her stand without an attorney present, Thiessen said. A prosecutor reads probable cause findings — the same document and evidence read to a magistrate — and Franklin revokes bond, raises bail amounts and remands the defendant into sheriff’s custody.

“The practice she is engaging in is very unusual,” said Amanda Peters, a law professor at the South Texas College of Law Houston who teaches criminal procedure. “I’ve never seen a judge revoke a bond and then set a higher one if a defendant didn’t violate a condition of bond.”

In some cases, she has ordered defendants who’d posted bond be held without bail, a move defense attorneys say is a clear violation of their clients’ constitutional rights.

State law mandates that judges need to give the defendant “reasonable notice” that they intend to deny bail and allow “meaningful opportunity to be heard.”

Most of the defendants were denied the opportunity for representation before Franklin acted in their cases, using probable cause materials that are often considered inadmissible evidence in trials, Thiessen said.

“Each of these defendants appeared in court and had no notice of what was about to take place,” the defense lawyers said in the complaint. “No notice that Judge Franklin intended to revoke their bonds. No notice that Judge Franklin intended to deny them bail.”

What’s happening here is that the defendants had paid the bond required of them, had shown up in court for their next hearing as they were required to do, had no violations of their bail or other offenses that could cause their bail to be revoked, and yet their bail was either revoked or raised, for no apparent reason. One thing I didn’t realize that this story pointed out is that if you have paid the bond for (say) a $25K bail, and then your bail is subsequently raised to $50K, you don’t get back the amount you paid to the $25K bail so that it can apply to the higher bail. What you paid to the bail bondsman is now gone, and you are starting from scratch to pay the higher bail. Needless to say, lots of people can’t afford this.

I don’t know why Judge Franklin is doing this – she declined to comment for the story – and it’s not clear what can be done about it. What is being alleged here is illegal, but I don’t have a sense for what the State Commission on Judicial Conduct can or will do about it. We have certainly learned over the past few years that just having a law in place for something is not sufficient if there is not an enforcement mechanism in place that brings actual consequences for violating those laws. I hope members of the Legislature, and of Congress, who have criminal justice reform on their priority lists keep this in mind.

I also hope that the ongoing litigation over bail reform for felony defendants brings all of the current abuses of the system to light:

Those probable cause documents were the same materials magistrates used to set the initial bond amounts, meaning no new evidence existed, the complaint alleges. Harris County Public Defender Alex Bunin said Texas law requires new evidence is required under a Texas statute that requires “good and sufficient cause” to raise bond. Franklin is just one of several judges who use these practices, he said.

“I think the issue is going to be taken a lot more seriously now,” he said. “Some judges have followed the rules of due process better than others, and I think that’s also coming to light.”

Let’s name names and get it all on the record. It was clear prior to the 2018 election that the Republicans judges (with one honorable exception) were the main impediment to bail reform in the misdemeanor courts. All of the felony court judges are Democrats, and so far only two of them (Chuck Silverman and Brian Warren) have petitioned to join the plaintiffs in this lawsuit. That means that all of the others are at least potentially part of the problem. It’s not too late for any of them to get on the right side of things, but that time will soon come, and it’s going to be on us Democratic primary voters to clean up whatever mess is left. I very much hope that our Democratic judges decide that they want to be part of the solution and not part of the problem, but we need to be prepared to deal with the ones that make a bad choice. Judge Franklin was unopposed in March, and has no Republican opponent. She can’t get a pass like that again.

Finally, for those who show up in the comments here with links to Facebook posts about people who get released on PR bond and then do something horrible: This is a coward’s argument. If you honestly believe that everyone who gets arrested for anything should be kept in jail until they get acquitted by a jury, have the guts to say so. Or if you believe that only people that you personally don’t find to be scary can get released, or if you believe that everyone should have to pay bail of some large minimum amount, say so. Because what you are arguing for, whether you are able to admit it or not, is for lots of people to be kept in jail before they are ever found guilty of anything. If you can’t admit what you’re actually arguing for, then maybe you should keep that argument to yourself.

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5 Comments

  1. Jules says:

    Charles, excellent final paragraph.

  2. robert says:

    Jules, sounds like it’s not only us are getting tired of Bill’s BS.

  3. C.L. says:

    Props to Kuff !!!

  4. Bill Daniels says:

    OK, challenge accepted. I’m going to argue that if you are charged with a crime involving real victims, especially a violent crime, you should have to put up some bail to have some skin in the game. You should have something to lose if you abscond and don’t bother to show up to court and face the charges, or if you get arrested again for new crimes.

    Maybe you got caught breaking into cars in the Heights, for example. You might not care to show up and answer those charges with no bail, or to not go out and do it again when you get out, but if your dad had to put up his house as collateral, or your auntie had to get a title loan on her car to bail you out, you might be a lot less likely:

    1) to not show up for court, and

    2) to not commit new crimes while you are out on bail. This is the important one.

    The accused will be more likely to NOT commit those new heinous crimes if there was something for either the accused, or someone the accused loves, has to lose.

    And let’s just revisit the “no bail” genesis. I remember fondly when that was just going to be the policy for FIRST TIME arrestees who were not accused of actual violence. We all pretended it was gonna be used to kick that 18 year old kid who got caught with a dime bag during a traffic stop, who had never been in trouble before. And who could argue with that? First time offense? No victim? Sure, why clog the jail with that guy? But that’s not what happened, was it? Look at who is getting kicked with no bail, no incentive to not commit new crimes. OMG, what? They are now committing new crimes? Inconceivable.

    I’m sure Paul will weigh in on this.

  5. blank says:

    There is a nice article describing a report on Harris County’s bail reform in the Texas Tribune today. https://www.texastribune.org/2020/09/03/harris-county-bail-reform/