About Robert Fickman

Robert Fickman is a criminal defense attorney with 30 years experience in defending the citizen accused in both state and federal court. He is a past president of HCCLA and remains active in its mission.

Harris County: Your Self-Praise Stinks

Harris County Criminal Justice officials have recently announced the coming of some long over-due reforms. They have been more than a little vague on what those reforms will be.

District Attorney Devon Anderson has announced one reform: plans for more diversions (an outcome where low risk offenders are kept out of jail and given a second chance). DA Anderson should be commended for her commitment toward more diversions. This is a tangible reform.

But more diversions from the DA will not solve the primary problems in our local criminal justice system. So long as the Harris County judiciary systematically denies PR bonds (Ed. note: read more here, here and here – as you can see we talk about this a lot but it falls on deaf ears), there will be no justice in Harris County.

It’s real simple. So long as the judges systematically deny PR bonds, the poor will remain in jail. The poor will continue to be forced to plead guilty to obtain their liberty.

The judges now uniformly say they would grant more PR bonds but can’t because they lack a good tool to evaluate risk. This is False. The risk assessment tool already in place is more than adequate to make an informed decision on whether to grant a PR bond. And, where there is doubt or concern, why not hold an actual bail hearing?

The claimed lack of an adequate risk assessment tool is smoke utilized by the judiciary in an attempt to justify their unjustifiable denial of PR BONDS.

When a person makes a surety bond, there is no risk assessment. If a person can afford to hire a bondsman they can be charged with murder and walk right out of jail. But a poor person who cannot afford a bond who is charged with trespass stays in jail because the judges falsely claim they can’t adequately access his risk of coming back to court. The judiciary speaks with a giant forked tongue.

In Harris County, if you have money and can hire a bondsman, you don’t need a risk assessment, not even for fixing the amount of bail. It’s simply of no concern. But, if you are poor and in the county’s clutches, you will stay in jail because the judges claim they can’t determine your risk.

The truth is, the judiciary can make the risk assessment. Risk assessment is simply the latest lame judicial excuse, in a long line of lame judicial excuses, utilized to justify the systematic denial of PR bonds.

Let me be clear:

The judge’s systematic denial of PR BONDS is not caused by an inadequate risk assessment tool.

The judiciary’s systematic denial of PR BONDS is driven by the judiciary’s shared desire to perpetuate the County’s evil Plea Mill. This is most evident in the County Criminal Courts at Law.

This double standard, this blatant denial of Equal Protection, is precisely what will get Harris County sued in federal court. That’s not justice in Harris County.

The county officials talk of reform and pat themselves on the back. They should not pat themselves on the back so hard as to knock themselves down. In fact, they should not pat themselves on the back at all. The county has perpetuated the systematic abuse of the poor and minorities for decades. The county should not now engage in self-praise for making minor adjustments to an otherwise abusive system that they continue to perpetuate.

Coercion and Indigence

“A nation’s greatness is measured by how it treats its weakest members.” ~ Mahatma Ghandi

Well Mahatma, I regret to inform you that Harris County, Texas ain’t too great. Many Harris County judges rate themselves and their brethren by the size of their dockets. These judges view having a small docket as most important. To keep their dockets small, these judges are motivated to move cases as quickly as possible; the quickest way to move a criminal case is for the accused to remain in jail and plead guilty on the first setting.

fickman_txobserverThe Texas Observer ran an in-depth article this month titled Poor Judgment detailing the procedures in Judge Bill Harmon’s court and the indigent defense system in Harris County.

The big take-aways from this article are:
(1) Judge Bill Harmon arrives to court late or not at all and uses bond as a reason to deny court appointed counsel,
(2) indigent defense attorneys have caseloads that are too large and are beholden to the judge providing the appointed work, and
(3) cases move quickly to guilty pleas because defendants are too poor to bond out and are given a “Hobson’s choice” to plead guilty for a short sentence or languish in jail waiting for a trial.

Judge Bill Harmon
The Observer notes that courthouse locals and regulars know Judge Harmon doesn’t arrive until at least 10:00am and often much later. In fact, his courtroom doors stay locked until 10am. As the noon hour approaches, regulars know either Harmon will appear or the staff will scramble to have another judge “fill in” for him. This leaves defendants and lawyers waiting around the courthouse and in the hallways most of the morning. This leaves court staff (clerks, bailiffs, court reporter, and court coordinator) waiting to conduct business since most of their days start around 8am.

The accused often appear without a lawyer, requesting a court appointed lawyer. Because this is a misdemeanor court, many otherwise indigent defendants have family scrape together money for bond and then appear in court hoping to apply for a court appointed lawyer. Per Harmon’s dictates the indigent accused who make bond are denied appointed counsel. That’s not the way the system is supposed to work!

Indigent Defense Lawyers and Guilty Pleas
Those familiar with the aptly named “criminal” justice system know that many judges push very hard to get quick pleas of guilty. The judiciary’s primary goal should be to provide a just forum. Too often, the judiciary’s primary goal is to move cases quickly in order to maintain small dockets.

Locally, the judiciary’s desire to move cases and obtain smaller dockets has led to some ugly policies and practices. The Harris County “Plea Mill” is a direct result.

What is a plea mill and how does it work?
It is best understood by example. A citizen is arrested on Friday and charged with a non-violent, low-level misdemeanor such as shoplifting or possession of marijuana. The citizen is too poor to post a bond or cannot reach family to request assistance in posting a bond. Because he is incarcerated, he is evaluated for a personal recognizance bond (PR bond), a low cost or free bond that allows the poor to get out of jail while they fight their case. PR bonds are routinely denied, even where the citizen is eligible. This holds the citizen in jail until his first court appearance (likely the following Monday).

After sitting in jail a few days, the citizen is chained to others in the jail and brought over to the court. The citizen will be placed in a dank dungeon-like holding tank. There the citizen waits.

In court, the judge appoints lawyers to represent those stuck in jail. On any given day one lawyer may be appointed to represent up to 7 people.

The lawyer will meet with the prosecutor who will most likely extend a plea bargain offer to each of the citizens sitting in the holding tanks. The prosecutor’s offer is designed to encourage a plea of guilty. A typical offer would be, “For a plea of guilty today, we’ll give him a week in jail with credit for time already served.”

The lawyer conveys the offer to the citizen in the holding tank. The reality of the offer is plead guilty now and get out soon or plead not guilty and sit in jail a long time waiting to fight your case. The Observer asked me what I thought about our Plea Mill. I told the Observer,

“It’s a Hobson’s choice – it’s not a choice at all. These are poor people who need to get back out and try to feed their families. So what do they do? They plead guilty. They’re not pleading because they’re necessarily guilty but because they’re getting their liberty. The horror, the horrible irony of this system, is that people are pleading guilty just to get their liberty. And it goes on every fucking day.”

What is the role of the Indigent Defense Lawyer in this system?
The Observer found more than one-third of the lawyers taking court appointed cases in Harris County not only exceed but greatly exceed the recommended maximum caseloads. Through studies, the Public Policy Research Institute at Texas A&M and the Texas Indigent Defense Commission have identified the approximate amount of work necessary to properly represent clients and the average maximum number of cases a lawyer can handle in one year.

Many attorneys in Harris County greatly exceed these maximums and thus cannot devote the proper time and attention to their clients’ cases. This leads to a conflict: devote the time and attention by working up cases for legal issues or convince their clients to take a deal and move on. Not coincidentally, moving cases is just what the plea mill is all about. It is also, as the Observer points out, why judges perhaps select certain attorneys to handle their indigent cases.

The Bottom Line
Local policies and practices, written and unwritten, have resulted in a 100% clearance rate for misdemeanor cases. As the Observer points out, this means the misdemeanor courts in Harris County dispose of cases faster than they come in. This sounds great, until you or your loved ones are on the receiving end of this “swift justice.” We are supposed to have a justice system. With the Plea Mill our justice system is a farce. Pretending to afford justice is not the same as affording justice.

Citizens should not be penalized by being denied PR bonds, held in jail, and coerced into pleading guilty. Unfortunately, this is exactly what happens every day in Harris County Texas.

Related Article: Robert Fickman – Harris County, Where the Courts Systematically Deny PR Bonds in order to Coerce Pleas of Guilty

Related Article: HCCLA – Time for Case Limits in Harris County?