On Christmas Eve, Lucas Lomas was accused of stealing five DVDs and a speaker, and on December 26, Carlos Eaglin was arrested for possession of less than two ounces of weed — two defendants out of roughly 1,400 handcuffed every week in Harris County.
But attorneys now claim that the problem with their arrests and thousands of others is that the alleged facts of their cases — which are summarized by police and presented at probable cause hearings — were never sworn under oath, as the Constitution requires.
That's according to the third federal lawsuit that the national organization Civil Rights Corps has filed against local criminal justice officials this year over what it claims are unconstitutional court practices. The Texas Fair Defense Project is also representing the plaintiffs in the latest suit; the organizations are seeking class-action status.
Elizabeth Rossi, a Civil Rights Corp attorney, said making sure law enforcement affirms the facts of a case under oath under penalty of perjury is an important check on police power, both deterring any dishonest or misleading statements about an arrest and encouraging police to be more meticulous and exact in their reports. The lawsuit, Rossi said, is not meant to insinuate that police are lying or misrepresenting facts in their reports, but only to point out that Harris County is allegedly skirting this Constitutional protection.
"It just shows that the county is not rigorously following the Constitution in making these post-arrest detention decisions," Rossi said. "Our position has always been that making a decision to put a person in jail is a solemn decision that should be done carefully and according to rigorous procedures that abide by the Constitution. We're hopeful the county will work with us to fix the system."
So here's what happens after people get arrested in Harris County: First, they're taken to the city jail, then transferred to the county jail within 24 to 48 hours; usually this only includes people who could not afford to immediately bail out of jail. At county, prisoners are taken to a room where probable cause hearings are conducted via videolink, with a magistrate staring back at the defendants through the TV screen — reading them their rights, officially setting their bail, and, ultimately, deciding whether police had good reason and probable cause to arrest them. The magistrates base this decision on a very brief summary of the facts of the arrest, read by a prosecutor, who received those facts from the police. The hearing usually lasts a minute or two.
At no point before or during the probable cause hearing, attorneys claim, are those specific facts affirmed under oath.
"That post-arrest probable cause determination has to be made on the basis of sworn statements, and the reason that's important is because the person making an accusation of a crime should be made aware of the gravity of that accusation," Rossi said. "It's absolutely a check on the government's power to take away someone's liberty."
Robert Soard, at the Harris County Attorney's Office, said that the county is currently reviewing the lawsuit and underlying facts and intends to file a response.
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Rossi said that attorneys discovered the absence of sworn statements while reviewing the county's bail system for one of its other lawsuits. All three of the suits, Rossi said, are interconnected in that they mostly affect poor people who can't afford to bail out.
The first suit — filed in May against the county, the county judges, all five bail hearing magistrates and the sheriff — exclusively concerned the bail system and the county's strict bail schedule. It asserted that the magistrates routinely failed to consider poor people's ability to pay bail during that first probable cause hearing. Federal Judge Lee H. Rosenthal recently denied the county's motion to dismiss the case.
The second action was filed against the City of Houston over unconstitutional delays in transferring inmates from the city jail to the county jail. Attorneys claim that the delays caused people to either miss their probable cause hearings or not have them within that 48-hour timeframe, as required by the Constitution. As the Houston Press reported in September, the Harris County Sheriff's Office said these delays were caused in part by overcrowding, and the jail simply couldn't accept more inmates.
No matter the explanation, attorneys say in every case poor people charged with nonviolent crimes end up spending more time in jail compared to wealthier people who paid to get out — simply because of questionable county policies.