At Homeowners Luncheon, Harris County Attorney Fudges Facts on Bail Reform
Photos by Marco Torres
Standing before a room full of interested Houston homeowners at Lambo Chinese Buffet for their weekly luncheon on Friday, the president of the Houston Property Rights Association had clearly done his research on bail reform. That man, Barry Klein, referenced statutes and news articles, input from a Texas Supreme Court justice and a University of Houston law professor to make a compelling case for that week's topic of discussion.
"Liberty is the norm, and detention prior to trial or without trial is the carefully limited exception," he recited from a U.S. Supreme Court ruling.
Then, after extensive review of his bail reform handout, he introduced an attorney representing the 15 Harris County judges who have been sued for operating what Chief U.S. District Judge Lee H. Rosenthal has found to be an unconstitutional bail system: Attorney John O'Neill (who, Klein reminded the crowd, led the Swift Boat conspiracy theory against John Kerry during his 2004 presidential run, a sweeping smear campaign in which O'Neill steadfastly believed — it turns out, wrongly — that Kerry lied about how he earned Purple Hearts.)
And then the homeowners luncheon stopped being about bail reform and became instead a presentation by O'Neill about why homeowners should be concerned that Rosenthal's ruling against Harris County's bail system actually threatens public safety.
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The only problem: To back up that position, O'Neill's pitch was full of misinformation.
O'Neill repeatedly described Rosenthal's order — which requires Harris County to release all misdemeanor defendants on a personal bond if they can't afford to bail out within 24 hours of arrest — as a "catch-and-release" system and compared it to the federal immigration system. He compared the new misdemeanor bail system to the one in Washington, D.C., in which everyone, including most accused felons, is released on personal bonds. He repeatedly accused the Houston Chronicle of hiding things from readers. And, apparently not one to shy from conspiracy theories, he claimed multiple times that the lawsuit filed against the county by civil rights groups was funded by billionaire George Soros and was an illegitimate case. All three groups representing the plaintiffs are working for free; meanwhile, the Harris County Attorney's Office pays O'Neill $450 an hour in taxpayer money to make arguments like these in federal court.
(Plaintiffs' attorneys from all three entities — Washington, D.C.-based Civil Rights Corps, Texas Fair Defense Project, and Houston law firm Susman Godfrey — adamantly denied the Soros connection. "That's just very random, from my perspective, that he has such a fascination with this," said Texas Fair Defense Project Executive Director Rebecca Bernhardt. "That's always confused me." In court filings, O'Neill's law firm cites an opinion article, written by an Illinois judge, apparently as evidence for the accusation.)
Let's start with O'Neill's characterizations of the bail reforms ordered by Rosenthal, a system that, according to O'Neill, is "catch and release, where I can get caught six or seven times, and under the existing court order" authorities would be required to release him on a personal bond repeatedly. Continuing, he again referenced the Washington, D.C. bail system: "What the police chief in Washington said was that people looked in the poor neighborhoods and they saw people coming back within 24 hours after they committed a crime, and everyone was asking, where is the law? What happened to the law? Everyone lost all respect for the law, and that's why [the police chief] said the system was broken. ...It's the same system Harris County will have."
Here's why these are misleading comparisons: For one, some misdemeanors in Texas, such as DWIs, theft or car burglary, become felonies on the third offense, meaning many habitual offenders would be ineligible under Rosenthal's court order. Second, various studies — including one conducted by Harris County's own expert hired to testify in federal court — have indicated that the type of bond someone is released on, whether a personal bond or a surety bail bond, has no effect on the likelihood that person will commit another crime while released.
Apparently to make up for the lack of statistical evidence on the topic, one of O'Neill's favorite talking points is the Washington, D.C. system. He often pulls from a Washington Post series in which the outgoing police chief describes the criminal justice system as one that "allows repeat violent offenders back on the street time after time." O'Neill's problem: The Post series was almost exclusively about violent felons who commit more crimes after their conviction, not before trial, because of lenient sentencing laws, not lax bail rules. Plus, given that Rosenthal's order does not extend to felonies, O'Neill's repeated comparisons to failures in Washington, D.C.'s felony system are simply not relevant to bail reform with misdemeanor defendants in Harris County.
Last, O'Neill especially likes discrediting the lead representative plaintiff in the class-action lawsuit: Maranda O'Donnell, a 22-year-old single mom who was living on a friend's couch at the time she was arrested for driving with an invalid license. "Here's what the Houston Chronicle doesn't tell you," O'Neill said, later also accusing the Houston Press: O'Donnell, who already had past misdemeanor arrests for driving with an invalid license, possession of marijuana and muscle relaxants, posted bond within a couple days of arrest. (Here's what O'Neill didn't tell homeowners: Actually, an anonymous person within the bail industry posted O'Donnell's bond in an apparent attempt to make the lawsuit moot.) Then, O'Neill said, O'Donnell failed to appear in court.
"She sort of highlights why bail is important," O'Neill said. "The function of bail is important to try to secure appearance, to try and make sure people really show, to try and make sure it's not a catch-and-release system like the federal immigration system, where if you catch people you release them, they disappear, and try to catch them again and then it becomes ineffective."
Indeed, O'Donnell is an imperfect representative of the lawsuit; but, using O'Donnell as an example of why secured money bail is more effective than personal bonds, O'Neill misses the irony: O'Donnell was out on secured money bail at the time she failed to appear.
In a recent interview, O'Donnell told the Houston Press she failed to show up because her dad didn't come pick her up that day as he promised. Following her release from jail on bond for driving with an invalid license, she said she wasn't getting enough work at her new job as a bartender at a venue in the George R. Brown Convention Center, and had to terminate the lease on her car because she couldn't afford payments. As a financial consequence for forfeiting the bond, she then had to pay $1,250 — which is how the system is supposed to work.
The Press asked O'Neill if he was aware that, had O'Donnell been released on a personal bond, she would have been subject to the same financial consequences for failing to appear. Rosenthal's order doesn't abolish bail. It just eliminates the upfront, 10 percent premium that must be paid to a bondsman, for defendants who can't afford it within 24 hours of arrest. O'Neill, however, said, "No, I'm not aware of that, and I think you're wrong on that."
O'Neill said personal bonds should be reserved for those who have clean records. A reporter asked him, is the alternative, then, that O'Donnell should have stayed in jail, away from her young daughter, for driving on an invalid license?
O'Neill did not answer, and a woman sitting near the Press instead answered for him: "I would say yes — why is she driving without a license? She is a danger to all of us!"
And with that, the luncheon was over.
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