The Hearing Officers’ testimony that they do not “know” whether imposing secured money bail will have
the effect of detention in any given case, e.g., Hearing Tr. 4-1:141, 4-2:16, and their testimony that
they do not intend that secured money bail have that effect, is not credible.
That’s from U.S. District Judge Lee H. Rosenthal’s April 2017 Memorandum and Opinion Setting Out Findings of Fact and Conclusions of Law in ODonnell v. Harris County et al.
Having a U.S. District Judge call your testimony “not credible” is never good. It is especially bad if you are a defendant, a government employee, and a magistrate. The two hearing officers who testified, according to the docket, were Blanca Villagomez and Eric “I didn’t know if it would be good for my career” Hagstette.
Judge Rosenthal is as calm, measured, courteous, and attentive as you could possibly wish a judge to be.
Today in a hearing on whether the judges had told the truth in hearings before the April order, Neal Manne, lead counsel for the plaintiffs, matched her tone in his opening argument. Then Katharine David, lead counsel for the defendants got up, clad in jailhouse orange, and was strident and aggressive. It was like a prosecutor’s jury argument, but there was no jury. Just the Judge Rosenthal. Who had already found two of her clients’ testimony “not credible.” David utterly failed to read the room.1
Maybe David’s clients in the room, the sixteen Harris County Criminal Court at Law Judges, liked it. But they didn’t look they were having nearly as much fun as the crowd of criminal-defense lawyers present. Except for Darrell Jordan, who is the only judge who has yet had the good sense to stop fighting for their petty plea mill. He was sitting with Larry Standley and Mike Fields; they didn’t look like they were enjoying the proceedings as much as he.
Another of the judges’ lawyers opened with effusive praise for Judge Rosenthal, before whom he had never practiced.2
The judges’ lawyers argument was, “we will give the plaintiffs the discovery they want; they should have had a conversation with us before filing this motion.” I saw in it a call for civility, which is what those accustomed to power fall back on when their naked exercise of power fails and their venality is exposed. Civility is a weapon of the powerful against the powerless.
Manne summed it up: “The judges’ principle complaint seems to be that people have now heard about it.”
I learned some other things today that the judges might not want you to hear about.
I learned that the judges are paying at least one of their lawyers $610 an hour. Compare that to the $1,000 a week they pay term-appointed counsel in criminal cases for taking on 25 new cases and handling whatever is left over from prior weeks.
Post-Harvey the underutilization of the misdemeanor judges became apparent—when they began sharing courtrooms, it was clear that we could do away with half of them if we put the other half to work full-time. Today, though, I learned that Harris County Criminal Court at Law judges are currently working 50-hour months. Not weeks, months. That’s a problem with an easy solution: fire ten of them.
I learned that Michael Fleming, the husband of the County Criminal Court at Law Three judge, Natalie Fleming, got paid
more than $40,000 for representing the judges for two weeks3 slightly less than $40,000 for two months’ work on the case. These folks have more tolerance for appearances of impropriety than is seemly for a judge to have;4 that might be a consequence of 24 years of being untouchable in elections because they are Republicans, and in off-years Republicans have always won in Harris County.
Aside from Darrell Jordan, who took the plaintiffs’ side, Judge Paula Goodhart testified live at the hearing:5 slightly less than $40,000 for working on the matter for two months.
Q Okay. As the presiding judge, or even in your individual capacity as a judge of your own court, do you have any administrative duties with respect to the hearing officers?
A I do not.
Q What discretion do the hearing officers have to make decisions in their own courts?
A They have complete independent discretion. They do what they do; we do what we do.
Q Are any of the hearing officers supervised by you or any of the other judges?
A No, sir.
Q Have you ever sent any email instructions or verbal instructions to the hearing officers about how to conduct their business?
A I have never sent them emails or verbally instructed them on how to conduct their business. The only communications we would have is if one of the hearing officers granted what we call an SB 7 release, and as a courtesy, they notify — they always send an email to the judge and the court coordinator so that we know to expect that person in our court the next day.
. . .
THE COURT: One other question: You are familiar, of course, with the letters that the county judges — I’m sorry — to the hearing officers that the county judges sent last August, right?
THE WITNESS: Yes, ma’am.
THE COURT: And that’s something that you intended as an instruction or direction —
THE WITNESS: No, ma’am.
THE COURT: — for county judges to follow?
THE WITNESS: No, ma’am.
THE COURT: No?
THE WITNESS: No, ma’am.
THE COURT: What was the purpose of them?
THE WITNESS: To let them know that the county judges believe and have always believed that they had their own discretion.
THE COURT: And there was no intent to guide them in the way in which to exercise that discretion, not in any specific case, but in kind of guidance overall?
THE WITNESS: That was not an intent to instruct them. It was an intent to let them know where we stood on the matter. That we believed them to be independent of the judiciary and that they had the discretion to carry out their duties as they saw —
THE COURT: Whatever they wanted?
THE WITNESS: Yes.
THE COURT: Did you remind them of what their duties were?
THE WITNESS: We did.
THE COURT: That’s my point.
THE WITNESS: We did.
THE COURT: Thank you. And is that because you believe that the reminder was important to make, or am I supposing probably too much?
THE WITNESS: I will say this — I will say yes, but I’m going to be careful how I phrase this.
THE COURT: We always are.
THE WITNESS: The county court judges — the county court judges do not give the hearing officers instructions.
THE COURT: “Guidance” is the word I use.
THE WITNESS: Or guidance. Because we see them as independent of us. We want them to use their discretion based on the information that they are given and based on the law.
THE COURT: I get lots of guidance from people who are not part of — from whom I am independent. That’s the benefit of what —
THE WITNESS: And I see your —
THE COURT: — the systems provide.
THE WITNESS: I see your distinction between “instruction” and “guidance.” But I can’t speak for the district courts with regard to instructions that they may have given the hearing officers. So assuming that maybe there was an impression that they were to follow instructions from the district courts, there was clarity with regard to the county courts.
THE COURT: Thank you.
It’s curious, isn’t it, that even though the hearing officers have and always had complete discretion from the County Court judges, those judges found it necessary, three months after a lawsuit was filed, to “remind” them that they “had the discretion to carry out their duties as they saw –“?
Judge Rosenthal seemed to think it quite curious as well.
The sixteen county criminal court judges are not a unified group. I was generally aware of the fact, but the atrocious behavior in judges’ meetings that I heard about today would put a middle-school homeroom to shame. Neither their colleagues nor the elected district attorney are immune from the misdemeanor judges’ bullying.
I foresee the interests of the fifteen county criminal court judges diverging really quickly. Now is the time for the judges whose hearts really aren’t in this lawsuit to get their own counsel.
Yes, I’m talking to you …
I was surprised later to learn that David had clerked for Rosenthal. ↩
Dude, you’re fifty-something. What kind of law have you been practicing that you’ve never been before Judge Rosenthal? And what on earth are you doing there now? ↩
Mr. Fleming responds:
It appears from your blog post that you have been given misinformation regarding my role in the O’Donnell v. Harris County litigation which caused you to label me and my wife as “implicitly corrupt” and exhibiting an appearance of impropriety.
You have obviously been misled to believe that I was “paid more than $40,000 for representing the judges for two weeks.” This statement is false.
1. I worked on the matter for two months after being asked to help by the county attorney’s office. However, I didn’t file an appearance in federal court until the middle of August 2016.
2. I didn’t represent the judges. The judges, including my wife, were not added to the case until September 1, 2016. I withdrew from the case the next day.
I hardly think this is an appearance of impropriety or implicitly corrupt.
Also, I wasn’t paid “more than $40,000.” It was slightly less than that but that’s no big deal as I don’t consider an exaggeration like this quite the same as a falsehood.
As mentioned above, I am confident that somebody intentionally misinformed you on these issues and if you need any further information on this matter, I would be happy to discuss it with you on the telephone. ↩
All of the other judges testified by deposition testimony. ↩