This letter will be delivered to the 15 Harris County Criminal Court Judges tomorrow.
ROBERT J. FICKMAN
440 Louisiana, Suite 800
Houston, Texas 77002
Fax (713) 224-6008
November 26, 2013
Judge Paula Goodhart
Judge William Harmon
Judge Natalie Fleming
Judge John Clinton
Judge Margaret Stewart
Judge Larry Standley
Judge Pam Derbyshire
Judge Jay Karahan
Judge Analia Wilkerson
Judge Sherman Ross
Judge Diane Bull
Judge Robin Brown
Judge Don Smyth
Judge Michael Fields
Judge Jean Spradling Hughes
Harris County Criminal Court Judges
Houston, Texas 77002
I hope that you are all well. Happy Thanksgiving to each of you, your families and your very able staffs.
As I am sure you are aware I have been an outspoken critic of the criminal justice system for a number of years. I have practiced criminal law in state and federal court now for 30 years. During this time I have represented many indigent defendants, particularly in Federal Court. In Federal Court, I served as the first Panel Attorney Representative for the Southern District of Texas. Panel Attorneys are those lawyers in private practice that are deemed qualified to accept Federal appointments. I was appointed by the late Honorable Norman Black, to represent the panel lawyers from our District. I also served as the Fifth Circuit’s Panel Representative to Defender Services in Washington DC. Most recently, I served on the Honorable Kenneth Hoyt’s Panel selection committee. I served for a number of years with a handful of good lawyers, assisting Judge Hoyt in re-vamping the system for selecting Panel attorneys. I believe the aforementioned demonstrate a genuine and long-standing interest on my part in improving indigent representation.
I would not trade our system for any other system in the world. As many of you may recall, it was my idea to display the Constitution in our courthouse, the Jury Assembly Room, the Civil Court and the Juvenile Justice Center. It was also my idea for the Defense Bar to annually read the Declaration of Independence in front of the Court. As American lawyers, we all took the same oath to support the Constitution of the United States and the State of Texas. I am sure we all take our Oath seriously. I think as an American Lawyer, I am duty bound to speak out when I see flaws in our criminal justice system. I think we all have a duty to speak out and act whenever the system has evolved in such a way as to contravene the spirit or words of the Constitution. This is the reason, for the first time in thirty years I have addressed this letter to all of you. I believe part of our current system is an affront to our Constitution. I am petitioning you, in my individual capacity, to change that part of the system which offends our Constitution.
In my 30 years as a criminal defense lawyer, I have concluded that one of the biggest problems in our system continues to be how we treat the poor. As you know, they make up a large part of the population of those who are charged with crimes.
For years, I have observed the chain of orange jump suits come into our courts. I watch people pleading guilty, not long after they have met their appointed counsel. The lawyers who plead multiple clients guilty an hour after they met them, are not truly functioning as defense lawyers. A defense lawyer is duty bound to investigate the law and the facts. Those lawyers who plead multiple clients guilty, not long after meeting said clients, cannot possibly have done an adequate job of investigating the law or the facts. A lawyer who is appointed to represent 6 clients at 9AM, does not have sufficient time to investigate the law and facts for those 6 clients between 9AM and 11AM. Yet we routinely see lawyers who were appointed at 9AM, pleading 6 clients guilty at 11AM. Doing the math, that affords the lawyer no more than 20minutes tops to work on each client’s case. I suspect if it were our loved one, we would all expect a lawyer to spend more than 20 minutes on our loved one’s case before making even an initial recommendation.
There is no time for these lawyers to interview the client in any meaningful way, interview prospective defense witnesses, investigate potential defenses, investigate the state’s case, or investigate relevant legal issues. That cannot be done in 20 minutes. I refer to this system as the “Harris County Plea Mill”. I am not picking on Harris County, I am aware similar bad systems exist elsewhere. (Nor am I picking on all lawyers who do court appointed work in the county courts. We have some lawyers who, despite the system, do their very best to provide effective assistance. These lawyers are more the exception than the rule.)
I believe the inherently unfair “Plea Mill” stems largely from the incarceration of the accused. The accused remain in jail because they have not been able to hire a bondsman and because your courts will not give them personal recognizance bonds. Logic dictates that people prefer liberty over incarceration.
All things being equal, if an accused can hire a bondsman to get out of jail, the accused will do so. Likewise, if an accused cannot hire a bondsman, but they are afforded an opportunity for release on a personal recognizance bond, they will take the opportunity. However, the opportunity to be released on a personal recognizance bond is almost non-existent in our County Criminal Courts; therein lies the root of the problem.
As things stand the accused in Harris County generally only have one way to secure their release before court. That entails hiring a bondsman. This suits the bondsmen just fine, as they have a bit of a monopoly on the ability to secure the accused person’s liberty prior to court. Bondsmen do not work for free, nor should they. They make lots of money based on their established monopoly.
Those who are too poor to hire a bondsman, having been denied an opportunity for a personal recognizance bond, sit in jail and await their first court appearance. They are brought to jail and placed in a holding tank.
There they sit, with little or no control over their fate.
After a short time the appointed counsel comes back to visit them. As stated the norm entails fairly quick visits between the accused and their newly appointed lawyer. The accused are presented a “Hobson’s Choice” by their appointed counsel. We all know the drill. The accused is told if they plead guilty they will get out of jail sooner; if they plead not guilty they will get out of jail later.
People don’t like to be in jail. Poor people who are trying to support a family and cannot afford to lose their job, cannot afford the luxury of staying in jail to fight to prove their innocence. No. People who are poor, who live hand to mouth, will plead guilty to get out of jail sooner. We have no way of knowing if they are in fact guilty. Except for in rare cases, there has been no real defense investigation. We are left to wonder, if we care, whether innocent people are in fact pleading guilty to get out of jail.
I do not believe in self- deception or communal self- deception. It is quite obvious under our system, innocent people are pleading guilty to get out of jail. Our system, is a system that “corners” poor people into pleading guilty to obtain their liberty. I do not believe a system that by design or default coerces men into pleading guilty in order to obtain their liberty is a fair system. Quite the contrary, our system is offensive to our Constitution. Our perpetuation of this system daily offends what our Founding Fathers envisioned. It is an odious system where a free man must plead guilty and accept a criminal label in order to restore his liberty.
This is our long-standing, self-perpetuating abusive system.
I have spoken to many of you one on one about the county court’s systematic denial of personal recognizance bonds to the poor who are charged with non-violent misdemeanors. I will breach no confidences. I will however, advise you, as a group, that individually a number of you privately agree with me.
I am writing this letter to request that all Fifteen of you address this ongoing serious problem in our system. Enough is enough! I am advised that as of now only 7% of those charged with misdemeanors are given PR bonds. A few years ago that number was 5-6%. That is very little progress. Every day the current system goes on, is another day where innocent people are pleading guilty to gain their freedom. We are all responsible for our system. I appeal to you, to work together to change this. Let us free poor people charged with non-violent misdemeanors on Personal recognizance bonds. Let us do this to afford their lawyers time to represent them. Let us do this so that innocent men and women are no longer forced to plead guilty to regain their liberty.
I am appealing to you to address the inequities brought about by the continued systematic denial of personal recognizance bonds to those accused of non-violent misdemeanors. Poor Houstonians who are accused of misdemeanor theft, possession of marijuana, trespass, driving while license suspended and other non-violent offenses should not have to choose to plead guilty to obtain their liberty.
As long as this system remains in place, we are all accountable for the damage done. I need not tell you, what a conviction for misdemeanor theft does to a person’s chance to obtain employment and support their family.
On a final note, to demonstrate the sincerity of my request, I have begun a short fast. The fast is simply my way of protesting our denial of PR bonds to the poor. The fast is my attempt to get your attention. I hope during this Holiday Season, during this time of Thanks, as we gather with our families we consider those less fortunate than ourselves. In the spirit of the Holidays, I ask the Fifteen of you to immediately change course and begin systematically granting personal recognizance bonds to those charged with non-violent misdemeanor offenses. Our fellow Houstonians, who are presumed innocent under our Constitution, deserve our taking better care of their “God Given Liberty”.