Local Criminal Court Backlog Likely To Keep Growing As Pandemic Surges

Judge Kelli Johnson demonstrated how she uses Zoom in her courtroom to allow for social distancing.
Judge Kelli Johnson demonstrated how she uses Zoom in her courtroom to allow for social distancing. Photo by Schaefer Edwards
When asked about how the massive slowdown in the local court system and the resulting backlog of tens of thousands of criminal cases has affected the men and women whom he defends on a daily basis, Joseph Vinas, local defense attorney and president of the Harris County Criminal Lawyers Association, brought up one client in particular.

Vinas thought this client, a man accused of assaulting a police officer, needed a mental competency evaluation. “I filed the motion with the court for the judge to order a competency evaluation, and it wasn’t done for about seven or eight months.” This was, he said, a process that usually took at most “about two months” before the pandemic.

While awaiting the competency evaluation, the case was delayed multiple times due to witness issues on the state’s end. In that time, Vinas’ client sat in the Harris County jail, and caught COVID-19 while stuck behind bars awaiting both his trial and his competency evaluation. Ultimately, his client was only sentenced to probation and was added to the county’s mental health caseload for future mental health treatment.

“The case should have ended way sooner, and this guy should have been getting his mental health treatment instead of sitting in the Harris County Jail getting COVID,” Vinas said.

Between Harris County’s misdemeanor and felony courts, there are nearly 98,000 cases waiting in the wings yet to be resolved. As of late July, almost 73,000 of those were felony cases queued up specifically in the county’s criminal district courts. Of those felony cases, over 19,000 have been active and unresolved for a year or more, according to data provided to the Houston Press by Harris County.

“Any time the wheels of justice are slowed, I think it’s a travesty,” said Kelli Johnson, a Harris County Criminal District Court Judge and the Administrative Judge overseeing all of the county’s criminal courts. “There needs to be fairness across the board. And when there’s a backlog and things are slowed, then that’s an absolute injustice.”

It’s not just the county district courts that are feeling the pandemic pinch. Local immigration attorney Chiqui Kennedy Sanchez said the already beleaguered federal immigration courts in Houston were hit hard by the pandemic as well, and were already dealing with a massive backlog of cases.

Sanchez mentioned one client, a Nicaraguan asylum-seeker, whose case has dragged on for years and was further delayed by COVID-19. After he entered the immigration court system and requested asylum all the way back in 2012, “he finally got to his final hearing in the immigration court in January 2020.” She said a court-ordered delay pushed that hearing back two months.

“COVID hit, and the courts closed. And now the second-half of his hearing is scheduled for October of this year,” Sanchez said — a 17-month delay.

“The backlog existed before the pandemic, and the client that I mentioned, he was already, before the pandemic, in year eight of the process,” she continued. ‘It wasn’t incredibly efficient before, [and] it’s just made matters worse.”

Just as multiple county initiatives to cut into the district courts’ backlog were getting underway, such as having prosecutors reexamine nonviolent cases with the hopes of diverting some of them out of the court system and bringing in more judges to speed cases along, the Delta variant has thrown yet another wrench into the local court system.

Responding to the surge, Johnson and her fellow district court judges voted in early August to once again make masking mandatory for everyone in a county courthouse. And the county’s recent COVID-19 threat level change will also make it tougher to process cases quickly thanks to county-mandated occupancy requirements.

“Judge Hidalgo, the county judge, has increased the [threat] level to code red, which in turn lowers the capacity to this building to 25 percent,” Johnson said. “So that certainly affects the judges and the amount of people that we can bring in the building.”
click to enlarge The Delta variant surge led Harris County to limit court capacity to 25 percent, and judges have opted to require masks. - PHOTO BY SCHAEFER EDWARDS
The Delta variant surge led Harris County to limit court capacity to 25 percent, and judges have opted to require masks.
Photo by Schaefer Edwards
Unlike after Hurricane Harvey, when the Press was told by multiple players in the local criminal court system that women and mentally ill folks accused of crimes were facing longer delays in having their cases heard than other would-be defendants, none of the stakeholders we interviewed this time around could point to any specific groups that were bearing more of the brunt of these COVID-induced delays in cases being heard.

One difference between the Harvey-induced delays — mostly caused by floodwaters ravaging the already construction-riddled, antiquated county courthouses and issues transporting county jail inmates— and the case pileup caused by the COVID-19 is how the pandemic has caused the backlog to increase at a much greater rate.

In the two and a half years from when Harvey hit in mid August 2017 to just before the pandemic hit Houston in late February 2020, the number of cases that still hadn’t been settled after a year increased by just under 107 percent. But between February 28, 2020 and July 21, 2021, the number of stale cases increased by 182 percent, according to our analysis of case data provided by Harris County district court officials.

Harris County District Attorney Kim Ogg and her office devised a $3.5 million plan to pay for prosecutors to work overtime and re-review over 30,000 nonviolent cases over alleged state jail felony and misdemeanor offenses, with the goal of diverting some of those cases out of the court system altogether. Ogg unveiled the program to her assistant district attorneys at the end of June — not in-person, but through a pre-recorded video message.

In a recent update on the plan’s progress, Ogg told Harris County Commissioners court on Tuesday that since the triage program began on June 14, her prosecutors have reviewed more than 10,000 criminal cases. Of those cases, 6,608 were settled through a mix of convictions, by having nonviolent defendants diverted out of the court system and into certain community programs, and by dismissing some cases outright.

But between August 3 and August 20 alone, approximately 4,600 new cases were filed, so after all that work, the county courts’ backlog only decreased by 1,580 cases, Ogg said Tuesday.

Harris County Judge Hidalgo and her Commissioners Court have proposed some solutions of their own to address the backlog issue. One was to bring on six associate judges to handle some of the non-trial work that goes into cases to free up district court judges to hear more cases themselves. Commissioners Court also approved hiring three visiting judges who will have temporary new courts of their own in which they will work through tricky cases, typically ones involving violent crimes, according to Johnson.

The main reason the criminal case backlog has swollen so much during the pandemic is due to the amount of time it took for the county courts to adjust to COVID-era ways of doing business, including figuring out how to safely hold cases while a potentially deadly disease was floating through the air.

According to Alex Bunin, the chief and founder of the Harris County Public Defender’s Office, that led to a complete halt on all criminal trials for months on end.

“When COVID hit, it pretty quickly ended all trials," Bunin said, meaning that "for a year, there were [virtually] no trials at all."

“When COVID hit, it pretty quickly ended all trials." - Alex Bunin, Chief of Harris County Public Defender's Office

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The county court judges eventually figured out how to hold trials either wholly virtually through video conference tech like Zoom, or in a sort of hybrid in-person plus Zoom setup that allowed everyone present in a courtroom to be socially distanced with some participants calling in remotely. But those pandemic restrictions and difficulties the courts had in even making contact with many defendants accused of crimes during the worst of the pandemic led to far fewer cases being heard than usual, all while new criminal charges were filed and the backlog continued to swell.

These days, the county district courts are still nowhere near operating at full capacity. Both jury selection and jury trials are being held at NRG Park, which local defense attorneys have argued is far from ideal but court officials contend is better than nothing. Individual judges vary wildly in their approaches to holding cases, with some still holding all hearings completely virtually with no in-person courtroom presence whatsoever, and some moving back to wholly in-person hearings but with social distancing measures in place that have slowed hearings down significantly.

Both Johnson and Harris County Assistant District Attorney JoAnne Musick argued that the county would have been better equipped to deal with the backlog if there were more district courts, and new courts have to be both funded by the county and approved by the Texas Legislature. Since the pandemic began, Harris County approved funding for one additional criminal district court, which was approved by the Legislature during the 2021 regular session.

“If you look back historically, 1986 was the last time a criminal district court was created in Harris County,” Musick said. “So we’re a good 30 years behind keeping up with population growth.”

Musick and Ogg have continued to argue that Harris County also needs more prosecutors, but Commissioners Court under Hidalgo has been loath to fund a prosecutor hiring spree. “It has not been received well,” Musick said. “The mantra has been ‘If you have more people, you’ll just prosecute more and more people will end up in jail,’” which she claims isn't true.

In a statement issued before her recent appearance before Commissioners Court, Ogg reiterated her stance that her office needs more prosecutors. “We need more funding to hire more prosecutors to get our courts moving again,” Ogg wrote. “With more prosecutors, we will be able to spread more cases to more attorneys, giving us more axes to chip away at the cinder block that is our backlog.”

Vinas and Murray Newman, a local defense attorney and a well-known Ogg critic, both believe another part of the county’s case backlog problem is the amount of time it takes to get body camera footage from the Houston Police Department related to cases they’re working on.

“Now, the official word — which I think is just ludicrous — is don’t even ask until six months after the date of offense,” Murray said.

Musick said the DA’s team was aware of the perception that there would be an inherent six month delay in defense attorneys receiving police body cam footage, but insisted it wasn’t an official policy from Ogg’s office. “I’ve even heard it from some of our own prosecutors. It has become the urban legend that everybody takes as true.”

She mentioned that until recently, HPD “was behind in processing video, by about six to nine months,” and that county prosecutors “were telling people, you know, it’s not going to do a whole lot of good to keep asking for it in week one, month one, month two, because HPD can’t get to it anyway.”

“The catch-all provision was, if all else fails, and you’ve waited six months, now go ahead and ask for it. And I have recently learned that became the urban legend, and the fact that everybody said ‘You can’t even do it for six months,’” Musick explained. She said that while HPD has implemented new processes that have reduced their average processing times to between 30 and 90 days, “However, the sheriff’s department has fallen behind, more significantly, and [now] they’re at six months.”

No matter the cause of the body cam footage delays, Murray said they were still infuriating to have to deal with and to explain to his clients. “The core principle of the criminal justice system is those that are doing the accusing have to do the proving,” said Murray. “And if they can’t give you the goddamn body cam in six months, then they’re trying to accuse on credit.”

“The core principle of the criminal justice system is those that are doing the accusing have to do the proving. And if they can’t give you the goddamn body cam in six months, then they’re trying to accuse on credit.” - Murray Newman, local defense attorney

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Johnson expressed frustration that the current surge of the Delta variant threatens to set the county courts back even further. “Every time we think we’ve got something handled,” she said, “then we have to put on the brakes.”

When the Press asked Bunin about how long he thought it would take the county courts to get back to anything resembling a normal schedule, he didn’t sound especially hopeful that conditions would improve dramatically any time soon, even though he claimed his estimate was more optimistic than those of many of his colleagues.

“I would say within the next year, things will get much better,” Bunin said. “Most people are predicting more than that, [but] I think a year is probably feasible before we get more normal.”

That’s not much of a balm to defense attorneys like Vinas, who know that due to the pandemic’s persistence, relief in the form of settled cases likely won’t be coming for their clients any time soon.

“My clients deserve not just a speedy trial, but a fair trial,” Vinas said. “And they shouldn’t have to choose between the two.”
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Schaefer Edwards is a staff writer at the Houston Press who covers local and regional news. A lifelong Texan and adopted Houstonian, he loves NBA basketball and devouring Tex-Mex while his cat watches in envy.
Contact: Schaefer Edwards