Challenging the Bail System in Texas
Some 9,000 misdemeanor arrestees were set free, while U.S. District Judge Lee Rosenthal's April 2017 injunction added further momentum to national money-bail reform efforts.
April 30, 2018 at 02:00 AM
3 minute read
This article is part of National Law Journal's 2018 Pro Bono Hot List recognition package that celebrates law firms that do well by doing good. See the other stories here.
Neal Manne never thought it would be easy. But when Susman Godfrey's managing partner signed on with two civil rights groups to challenge the bail system in Harris County, Texas, he was surprised by the county's response. He describes it as “all-out war.”
Two years and more than 1,000 pro bono hours later, the war is almost over. Some 9,000 misdemeanor arrestees were set free, while U.S. District Judge Lee Rosenthal of the Southern District of Texas' April 2017 injunction added further momentum to national money-bail reform efforts.
Her 193-page ruling followed an eight-day evidentiary hearing that featured 300 written exhibits, 2,300 video recordings of bail hearings, and 13 witnesses—including Harris County Sheriff Ed Gonzalez, who joined the plaintiffs in calling the system unconstitutional.
“The county's political allies thought [the matter] would grind down these small nonprofits,” Manne said. “My firm is not grind-downable.”
A few years ago Manne got to know Alec Karakatsanis of Civil Rights Corps. Karakatsanis had recently brought a successful challenge to detention practices in Birmingham, Alabama. They decided it was time to go big: Along with the Texas Fair Defense Project, they challenged the money bail system covering the nation's third-largest jail.
The complaint in O'Donnell v. Harris County alleged that, instead of getting individualized risk assessments, indigent misdemeanor arrestees were routinely jailed if they could not afford secured money bail. People charged with offenses like driving with an invalid license were forced to choose between pleading guilty and waiting up to two weeks behind bars for a formal bail review hearing.
Harris County argued that its pretrial process was among the fastest in the nation and that it was already reforming its bail system.
Through discovery Susman's team obtained thousands of video recordings of hearings where bail was first set. “People were laughed at by the judges or ridiculed or told they weren't allowed to speak,” Manne said.
But the key was statistical evidence presented by Susman partner Lexie White showing that hearing officers stuck to the prescheduled bail amount in 89 percent of misdemeanor cases. “Lexie White demolished the other side's case in the courtroom,” Manne said.
Rosenthal noted in her ruling that similar challenges had been brought around the country but most had settled. “This case is also one of the most thoroughly and skillfully presented by able counsel on all sides,” she added. The Fifth Circuit mostly affirmed in February.
Manne spent 400 hours on the case in 2017 alone, while White contributed 350 and associates Michael Gervais, Alejandra Salinas and Krisina Zuniga collectively added more than 500.
Susman is “pretty selective” about pro bono, Manne said. “When we do take something on, we're all in.”
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