Bargain Basement

With the new $100 million County Criminal Justice Center shorted out by the flood for what may be months, some defense attorneys worry that their clients will be stuck in overcrowded jails without the benefit of timely court proceedings. But others say that speed is precisely the problem; that defendants are being rushed through a chaotic court process without regard to their interests or even their basic rights.

"What has happened during this flood is instead of defendants getting a break, what they've done is really created a plea-bargain mill," says Randall Kallinen, an attorney with the American Civil Liberties Union. He's complaining about what he calls a secret court that was held June 12 and 13 in the basement law library of the jail at 701 San Jacinto. "We don't know exactly what went on there, but you can understand the circumstances where you're led from the jail just to a different part of the jail, where your whole case is being disposed of out of public view," he says. "It's just atrocious. I think people's rights are being trampled on."

Judge Jean Hughes, the presiding jurist for the county criminal courts, says that proceedings began in the jail basement on Tuesday because there was still some flooding in the tunnels used to transport inmates. They continued on Wednesday because the judges realized there was an enormous backlog of cases that could not all be handled in the official makeshift courtroom of the Probable Cause Court building at 49 San Jacinto. "Because we couldn't bring them to us," Hughes says, "we went to them."

But why, Kallinen and others wonder, didn't the judges inform the Harris County Criminal Lawyers Association, or the public for that matter, about the basement court? They certainly had the opportunity: Judge Hughes met with HCCLA president-elect Wayne Hill the day they began the jail court. HCCLA member Mark Bennett says that he was explicitly lied to when he asked judges and court officials about the matter. Hughes argues that she has no obligation to notify attorney groups about the unusual venue. "There's about 20 different lawyers' associations out there," she says. "You've got the black lawyers. You've got the Asian lawyers. You've got everybody out there."

Hughes also admits she was not concerned with publicizing the court and making the jail basement accessible to the public. "Do you realize the emergency we're operating under?" she asked a reporter incredulously.

But Hughes did make some calls during the emergency -- to court-appointed attorneys. Kallinen suspects that other private attorneys were kept out of the loop so that these handpicked court-appointed lawyers could "plead out the case quickly and get the dockets cranking."

Hughes says there were 131 pleas taken in the first four days of the special sessions. That works out to only about two pleas per day for each of the 15 courts, she says.

"There were defendants that came in that maybe had a case where the state's offer was three days and they had already spent three days in jail," says Judge Sherman Ross. "They just wanted out. There were a number that were pleading for time served."

But the numbers circulating through the defense bar are much more unnerving. The lawyers speak of an unnamed court-appointed attorney who had 20 cases in one day, half of which were pleaded out. They estimate that this attorney could not have spent more than nine minutes on any given case.

HCCLA members worry that prisoner overcrowding from flooding at the main jail -- one report described 18 inmates in one cell -- combined with overburdened court-appointed attorneys will encourage even innocent misdemeanor defendants to take plea agreements. Ross admits that the district attorney may be more amenable to working out pleas due to the logistical nightmare, but the judge says he specifically asks defendants considering pleas whether they have had enough time to consult with their lawyers.

If it's unusual to hold court in a jail basement, it's even more unusual to accept pleas at a probable cause hearing, a simple legal formality where typically charges are read, rights are given, bond is reviewed and attorneys are appointed for indigents. Nevertheless, while the basement court has been abandoned, probable cause hearings are still being combined with plea opportunities at the 49 San Jacinto courtroom. "So what you get is people literally off the street, maybe still under the effects of the drugs or alcohol [for] which they were arrested, and they are taking pleas," says Kallinen. "And they don't even have time to reflect."

They certainly don't have much time to talk with their lawyers. One appointed defense attorney says that she was not even allowed inside the courtroom. She had to wait in an adjacent public viewing room until her client appeared before the bench and got transferred to a holding cell. There with a dozen other lawyers, inmates and no security, she had to shout over the crowd to explain her client's rights.

"It's a very fluid situation," says Judge Ross, not intending the pun. "We're fulfilling what we're supposed to do as far as our oath is concerned, and that's what's important -- making sure the defendants have access to counsel, and making sure the community is protected, and also making sure that the system doesn't just fall apart."

But Kallinen and Bennett aren't satisfied with that explanation. "If they're doing the right thing," asks Bennett, "then why not let everyone know they're doing the right thing?"

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Lauren Kern
Contact: Lauren Kern