Standing outside the Harris County criminal courthouse Thursday, community activists and criminal justice advocates called on county officials to stop spending millions in taxpayer dollars to fight the bail lawsuit and instead agree to a settlement.
Last week, in a scathing 193-page opinion, a federal judge ruled the misdemeanor bail system violates poor people's constitutional rights, given that people with money can go free within hours of arrest while those without must languish in jail until trial. Under U.S. District Judge Lee H. Rosenthal's order, the county must start releasing all misdemeanor arrestees on personal bonds within 24 hours of arrest as soon as May 15.
But that's if the county doesn't try to block the ruling with an appeal — an expensive legal fight that attorneys and advocates alike said Thursday would put Harris County on the wrong side of history and result in a waste of taxpayer money, which could be better spent on reforms.
"All told, after 10 months and with legal bills approaching $3 million, Harris County failed to produce a single credible witness to testify in support of the [bail] system," said Texas Criminal Justice Coalition attorney Jay Jenkins, citing Judge Rosenthal's findings. "These same voices that Judge Rosenthal deemed appropriately not credible are the same voices that have routinely squandered opportunity at real reform of the criminal justice system. If the county chooses to fight this lawsuit any further, they're going to lose... So why would we waste any more money?"
The Houston Press obtained six months' worth of legal invoices submitted by two of the private law firms on the case, Gardere Wynne Sewell and Winston Strawn, and examined thousands of expenses racked up by attorneys who charge $300 to $600 an hour. As of mid-April, their help has cost $2.25 million. To be sure: It appears every time an attorney lifted a finger to answer the phone or read an email in this case, he or she was working on taxpayers' dime. (For perspective, for the priciest attorney at $610 an hour, a single 12-minute phone call costs $122. He billed for seven of those.)
The attorneys billed for traveling to Austin to visit with city officials there who had faced a similar lawsuit. They billed for "monitoring media accounts" and responding to a media inquiry. They billed for "adding facts demonstrating absurdity of Plaintiffs' requested relief" to a legal filing. (Perhaps one such absurd fact is when they identified George Soros as the mastermind behind similar bail reform "attacks" across the nation.) They also billed $900 for three days of lunch during a mediation, including $112 in key lime pie — but Harris County Attorney's Office First Assistant Robert Soard said the lunch and pie expenses were flagged by the county auditor and have not yet been approved (they could be later).
While Gardere and Winston Strawn have been the main private law firms on the case, the Press discovered the county paid a third private lawyer, Michael Fleming, $38,000 for just several weeks of his legal expertise in July and August. He happens to be married to a defendant in the lawsuit, Judge Natalie Fleming. He worked for $475 an hour.
"We certainly knew he was married to Natalie and we talked about that," Soard said. "There would have been no conflict of interest, and that was up to the judges — whether it was okay to hire somebody who's married to one of them."
Soard said Fleming's role was to reconcile the differing viewpoints among the 16 county judges, including his wife, and help the judges decide how to move forward on the same page. (He could not offer specifics about how he advised the judges beyond that, saying it would violate attorney-client privilege.) Fleming was uniquely positioned, Soard said, because he is a former county attorney, personally knows all the judges, and also has worked with the lead partner at Gardere Wynne Sewell. "In some respects, you can treat him as a consultant," Soard said.
That's similar to the role of the county's latest new hire, Charles Cooper, who joined the team as an appellate attorney before Rosenthal even dealt the county the big blow. Cooper — a former front runner for Donald Trump's solicitor general, who is best known for fighting against gay marriage in California — was hired to help the county decide whether to appeal the ruling. He works for $550 an hour.
Assuming he's a speed reader, it will cost, at minimum, $2,200 for him to just read Judge Rosenthal's opinion.
"I call on the county to stop fighting and do the right thing: Put the money you've been spending on legal fees toward making the system better," Sarah Guidry, a law professor at Texas Southern University's Earl Carl Institute for Legal and Social Policy, said at the press conference. "You've acknowledged the problem. You received a $2 million grant to address this problem. Don't spend another $2 million [on this lawsuit], because now you are negating the MacArthur grant."
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Tarsha Jackson, executive director of the Texas Organizing Project's Harris County chapter, also unveiled a new initiative to bail mothers out of jail in time for Mother's Day. So far, she said, advocates have identified at least 40 women charged with nonviolent misdemeanors who have been sitting in jail longer than seven days.
As Judge Rosenthal noted in her ruling, 40 percent of misdemeanor defendants remain incarcerated until, in most cases, they plead guilty in order to get out of jail.
"Money is keeping them in there," Jackson said, "and love is gonna get them out."
Soard said discussions about whether to appeal the lawsuit will take place at the County Commissioners meeting on May 9.