Harris County District Attorney Kim Ogg this week voiced opposition to portions of a proposed settlement of a federal lawsuit involving the county’s misdemeanor bail system, prompting some fellow Democrats on the bench to question why Ogg is raising her concerns at the 11th hour.
Ogg has been aligned with bail reformers during an ongoing legal conflict over the disparate treatment of poor defendants who remain in jail after an arrest simply because they can’t afford up-front cash bail.
In an amicus brief filed Thursday, though, the district attorney said that the bail deal disproportionately favors the convenience of defendants over the needs of victims, witnesses and other stakeholders.
Ogg also expressed concern that the settlement removes the role of the prosecutor in getting defendants to show up for court and sets sanctions for noncompliance with the new bail process without providing clarity about what’s expected from prosecutors.
“It is fundamentally unfair to expose the District Attorney and her employees to federal sanctions for noncompliance with the proposed settlement absent appropriate clarity on her rights and responsibilities under the Proposed Settlement,” it says.
In addition, the district attorney objected to the “unfettered and unreviewable discretion” allowed to judges to delay or “outright excuse” defendants from appearing in court, which Ogg says violates Texas law.
Ogg’s opposition brief landed on the docket this week amid a flurry of eight or nine pleadings and letters from individuals and groups opposing the bail agreement, including County Commissioners Steve Radack and Jack Cagle, two Republicans who voted against the settlement and have opposed what they consider “bells and whistles” that were added and that they say go beyond the scope of the 2016 lawsuit.
“It’s a money giveaway for people accused of crimes, which is outrageous,” Radack said. His brief refers to “prohibitive costs” in the settlement that cover pretrial support services to help defendants comply with court requirements. He and Cagle both objected in their pleadings to what they said was a lack of concern for public safety in the settlement.
Others filing objections to the bail agreement included representatives of a law enforcement deputies’ union, a bail bondsmen organization, an agency that supports victims of domestic violence and Josh Bruegger, the police chief of Pasadena, the second-largest city in Harris County.
In a statement, Bruegger recently appeared to blame the proposed settlement in part for the release of a man accused of stabbing his pregnant ex-wife to death while free on a personal bond.
But although the new bail protocols unveiled by misdemeanor judges in January release more misdemeanor defendants on no-cash bonds and the majority on commissioners court approved the landmark bail settlement incorporating those protocols this summer, legal scholars and policymakers said the killing wasn’t a direct result of the new rules or the bail deal.
Chief U.S. District Judge Lee H. Rosenthal had set a deadline of this month for anyone with concerns to raise them with the court. And following the slew of objections, Rosenthal set a deadline of Sunday for the parties to respond to the briefs.
Judges push back
Judge Darrell Jordan, the presiding jurist on the County Courts at Law, said he and his fellow judges welcome all criticism, but he said Ogg had ample opportunity to offer input while the settlement was being developed.
Jordan said Ogg’s office played an essential role in developing rule 9.1, which allows about 85 percent of defendants to be released on no-cash bond.
The judge said Ogg’s former first assistant DA, Tom Berg, was “a great asset during the entire process,” but added, “Once he left the office, Kim Ogg was a ghost.”
“She has not attended any meetings or sent a representative since Mr. Berg’s departure. I have called, texted and emailed the District Attorney and she does not respond,” Jordan continued. “Government cannot function the way it should when there is no communication.”
Jordan said the judges have set an emergency meeting for the misdemeanor judges to review Ogg’s brief “line-by line” and “address all concerns raised by the District Attorney.”
Judge Franklin Bynum, one of the most vocal supporters of bail reform among the newly elected judges, called Ogg’s opposition “unwarranted” and “morally and legally indefensible.”
“Detaining people on the basis of their ability to pay is not only immoral and unconstitutional, but reflects an outmoded, ineffective approach to public safety,” Bynum said. “I am confident that justice and reason will prevail.”
Terri Burke, executive director of the ACLU of Texas, said Ogg’s actions were “cause for serious concern.”
“Rather than work collaboratively with local judges to design a model pretrial release system that will reduce needless and costly incarceration, she has decided to twist the implications of this historic settlement for political gain,” Burke said in a written statement.
Asked about the judges’ concerns, Ogg spokesman Dane Schiller said: “We have consistently agreed that nobody charged with a non-violent misdemeanor offense should be held in jail just because they can’t afford bail. We had high ranking prosecutors at all the meetings to which we were invited.”
Jordan said representatives of the district attorney’s office were welcome to attend all of the meetings.
Despite the kerfuffle, Alec Karakatsanis, whose civil rights law firm brought the lawsuit, indicated the last-minute scrambling would not affect the overall outcome..
“The most important thing is that everyone — the DA, the sheriff, the judges, the public defender, Democratic and Republican county commissioners, and the plaintiffs — agrees with the new bail practices set forth in Rule 9,” Karakatsanis said. “The DA has raised some minor objections that are not significant issues. They are minor elements and each concern the DA raises is based on a misunderstanding of the consent decree that will be easy to clarify once we all meet.”