NEW ORLEANS — A panel of three federal appellate judges seemed concerned Tuesday morning with Harris County’s bail practices concerning poor misdemeanor defendants, but they also questioned a lower judge’s ruling that changed the county’s system.

The 5th U.S. Circuit Court of Appeals in New Orleans held an hour-long hearing on the pretrial system of Texas’ most populous county, where arrestees who can’t afford their bail bonds regularly sit in jail — often until their cases are resolved days or weeks later — while similar defendants who have cash are released. Harris County is fighting an April ruling in which U.S. District Judge Lee Rosenthal called the county’s bail practices unconstitutional and ordered the release of almost all misdemeanor defendants from jail within 24 hours of arrest, regardless of their ability to pay their bail amount.

Charles Cooper, the attorney representing Harris County judges, spent most of his time in front of the judges arguing that the federal courts weren’t the right arena for the current bail fight. He said inmates requesting release from jail need to go through state courts first. Judges Edward Prado and Catharina Haynes seemed unconvinced of the argument.

“Is your concern that Judge Rosenthal didn’t let the state get the first bite of the apple?” Haynes asked. “By the time you got to federal court, your entire sentence as a misdemeanor defendant would be complete, I would guess.”

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Most misdemeanor defendants in Harris County who are released from jail before their trial are released on money bail — where a judicial officer sets a cash amount to ensure a defendant returns for future court hearings. In her ruling, Rosenthal said the county denied poor defendants due process by usually ignoring recommendations to release defendants on personal bonds, where no money is due, even though they couldn’t afford money bail.

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?” 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?”

Judge Rosenthal’s ruling was groundbreaking. In it, she ordered that all misdemeanor defendants who sign an affidavit claiming they can’t afford their initially-set bail bond amount must be released on a personal bond. She also said all those indigent defendants must be released within 24 hours of their arrest, regardless of whether they’ve had their probable cause hearing. If inmates arrived to the Harris County jail from an outlying facility after 24 hours of their arrest and they hadn’t had their hearing yet, the sheriff was ordered to release them on a personal bond. Haynes said she was “shocked” by that order.

“It seems chaotic to say a sheriff can ignore a court order,” she said.

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She also questioned the time frame of 24 hours.

“Why not 48 hours? Or 72, or even 96? Where is the magic of 24 hours other than the Texas law to find probable cause, which you’re not challenging?” she asked attorney Alec Karakatsanis of Civil Rights Corps, who was representing the former inmates.

Karakatsanis said the time frame aligned with the state law, and mentioned defendants who lose their job, car and insurance while detained in jail.

Throughout the appellate hearing, judges questioned what was happening in the county since the injunction.

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.”

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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.”

Harris County officials wouldn’t comment on the arguments, but on the courthouse steps, John O’Neill, an appellate attorney for the county, said more defendants skipped court dates after the injunction and before the flooding caused by Hurricane Harvey. 

“If this [lawsuit] succeeds, the criminal justice system in every state in the United States will be thrown into chaos,” he said. “The order has actually produced far more chaos than the flood has.”

Read related Tribune coverage:

  • Texas counties are watching to see how Harris County's fight against court-ordered bail practices will affect them. [Full story]

  • A bail reform bill aimed at granting more defendants release from jail using a risk assessment system failed in the Texas Legislature this year. [Full story]

  • In his State of the Judiciary address in February, Texas Supreme Court Chief Justice Nathan Hecht discussed bail reform, the cost of legal expenses and mental health issues. [Full story]

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