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?

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.