Three sitting judges and eight former district judges in Harris County were publicly admonished by the State Commission on Judicial Conduct in response to complaints that for years they violated state law and judicial cannons by ordering hearing officers to deny no-cost bail to thousands of poor defendants.

But the actions this week came too late to affect most jurists’ behavior on the bench. Seven left their district seats last year either because they didn’t run or lost elections. One lost re-election back in 2016.

The misconduct probes of all 11 judges began in February 2018, based on copies of memos and notes that showed that for a full decade most of Harris County’s felony court judges had provided different types of written or verbal instructions to the county’s hearing officers to routinely deny no-cash bail to all or most newly-arrested defendants.

Judge Michael McSpadden

Judge Herb Richie

Judge George Powell

The agency’s findings confirm most bans were in effect for years and largely went unnoticed and unchallenged until 2017 when Harris County judges and other officials were civilly sued in federal court for allegedly violating the rights of poor defendants by routinely failing to provide no-cost bail in many misdemeanor as well as felony cases.(The county is now in the process of settling that lawsuit).

In its August disciplinary orders, the commission concluded that through various actions all 11 Harris County district judges willfully violated judicial cannons and also “failed to comply with the law and failed to maintain competence in the law” by instructing hearing officers not to issue personal bonds even though under state law the hearing officers had the authority and duty to do so, the orders say. Under state laws and ethical cannons, the hearing officers are supposed to consider each defendant’s case and circumstances individually.

It’s very unusual for a such a large group of current or former district judges to be publicly disciplined in Texas for any reason, the commission’s own records show.

The judges who were admonished included former longtime Harris County District Judge Michael McSpadden, who retired last year after many years presiding over the 209th District Court. The commission found McSpadden had, like many other longtime judges, issued blanket instructions to deny all personal recognizance or PR bond requests from Nov. 20, 2009 to Feb. 1, 2017. McSpadden had previously written a letter to the Houston Chronicle in March 2018 where he admitted that “it is true I have instructed the magistrates not to grant these bonds in our felony cases to all defendants, never specifying a certain race or gender.”

McSpadden told the Chronicle on Thursday that he stands behind his decision to deny PR bonds even if it violated the law.

No Remorse

“I have great respect for the work of the commission. But I still feel the same way. I, as the elected judge, would like to make the decision on free bonds for accused felons rather than turn those important duties over to the magistrates. And it would take one more day to do this,” he said.

An attorney who represented all 11 judges, Nicole DeBorde said her clients requested to appear in person to respond to the allegations and were not given the opportunity to do so. DeBorde said she believed the commission’s decisions were “incorrect” and “based on a misunderstanding of the law surrounding this very complicated issue of bail.” She also said her clients plan to appeal.

Harris County Commissioner Rodney Ellis, a longtime advocate of bond reform, said he was pleased to see that the commission “took the allegations seriously and took decisive action. I’m doing research to see what the next steps are – there ought to be some serious consequences if (the) state’s laws were violated,” he said. “The rulings show that (these judges) not only brought disgrace upon themselves but upon the criminal justice system and that has led to a lack of confidence in our criminal justice system.”

Too little, too late

Disciplinary orders released this week show that the judicial conduct commission staff spent more than a year and a half confidentially reviewing evidence and complaints against the 11 judges. Nearly all were powerful sitting jurists when those reviews began. But by the time the commission met in December 2018 to secretly review those allegations, most had left office.

The former judges then were asked to respond to the commission’s “concerns” directly or through their own attorneys. The commission then issued disciplinary orders that were signed on Aug. 26, 2019 by Judge Catherine N. Wylie, current commission chair.

The commission’s reviews confirmed that district judges enforced a rigid bond schedule and issued various kinds of written or verbal instructions to hearing officers to deny what are called “personal recognizance” bonds to all or to certain specific categories of defendants. Those instructions constituted “willful and persistent conduct that is clearly inconsistent with the proper performance of (his or her) duties and cast public discredit upon the judiciary,” the orders all say in their conclusions.

In all cases, the commission found the judges’ orders to hearing officers violated state laws and judicial cannons, though the judges took different actions.

The three active Harris County District Judges who were admonished were: Hazel Jones, of the 174th District Court, Herb Richie of the 337th District Court and George Powell of the 351st District Court. In addition to McSpadden, seven other ex-jurists were admonished:

-Judge Susan Brown, formerly of the 185th District Court, issued instructions to deny all PR bond requests from Nov. 20, 2009 to 2013, the commission found.

In her responses, Brown said she changed those orders in 2013 and again in 2016, when she told hearing officers to grant PR bonds for defendants only in cases when the charge involved possession of a controlled substance of less than one gram and as long as the defendant had no prior convictions and was not homeless. ( Brown last year was appointed presiding judge of the Eleventh Judicial Region of Texas.)

-Judge Denise Collins, formerly of the 208th District Court: The commission found Collins violated laws and judicial cannons by instructing hearing officers to deny all PR bonds beginning in 2009 until Oct. 14, 2014, when she allowed the hearing officers to issue those no-cost bonds only for “non-violent state jail and third degree felonies with no prior felony convictions.”

–Judge Mark Ellis, formerly of the 351st District Court: The commission found that Ellis had issued instructions to deny all defendants’ so-called PR bonds from Nov. 20, 2009 to Dec. 16, 2016.

–Judge Catherine Evans, formerly of the 180th District Court: The commission found Evans issued instructions to hearing officers to deny all personal recognizance bond requests from Oct. 14, 2014 to February 2017.

–Judge Jim Wallace, former 263rd District Court Judge, issued standing orders to deny PR bonds between November 2009 and Feb. 1, 2017.

-Judge Jeannine Barr, formerly of the 182nd District Court, told the commission she “wanted to determine” herself whether to grant a PR bond rather than allow hearing officers to do so for each defendant assigned to her court, according to a disciplinary order.

-Judge Katherine Cabaniss, formerly of the 248th District Court: told the commission that she considered that she as an elected judge had the legal authority to “personally determine” whether a PR bond was appropriate for each defendant, even though hearing officers are designated to initially review defendants’ cases in Harris County.

Bad judges need more than wrist slaps in Texas [Editorial]

October 13, 2019

The U.S. Constitution says precious little about a judge’s conduct other than Article III’s requirement of “good Behaviour.” That means it’s up to each state to ensure the integrity of its courts. Texas could do a better job by giving a kick in the pants to the agency that investigates complaints about bad judges and increasing its staff to handle that task.

The State Commission on Judicial Conduct should be embarrassed by the wrist slap it gave three current and eight former Harris County judges who routinely denied no-cost bail to thousands of poor defendants between 2009 and 2017. A federal judge only recently gave preliminary approval to a settlement in a lawsuit accusing Harris County of wrongly jailing indigent defendants solely because they couldn’t post bail.

The 11 judges sanctioned by the commission in August were so eager to reduce the number of personal bond requests granted by magistrates that they didn’t evaluate each bond request on its own merit. That’s an egregious violation of the state’s judicial canons, but the judges received one of the commission’s weakest punishments, “public admonition,” which is like waving your finger at a wayward child.

To make matters worse, the commission later retracted the sanctions, according to the judges’ attorney Nicole DeBorde, leaving the public to only speculate as to why.

Eight of the judges have either retired or lost their seats in recent elections, but they remain eligible to fill in as “visiting” judges. Harris County Commissioner Rodney Ellis said the admonishment and other complaints about former Judge Jim Wallace should disqualify him from ever overseeing another courtroom.

The complaints about Wallace were detailed in a letter signed by the county’s chief public defender, Alex Bunin, that listed numerous allegations of ethical breaches, including criticizing a female attorney’s frequent objections by suggesting she “stay standing through the whole trial and save your knees.”

Susan Brown, a regional administrative judge for the state, ruled Wallace was qualified to be a visiting judge because his infractions were “lower level.” Brown, incidentally, is also one of the former Harris County district judges named in the commission’s short-lived sanctioned.

Others were sitting judges Hazel Jones, Herb Richie and George Powell, and former judges Michael McSpadden, Denise Collins, Mark Ellis, Catherine Evans, Jeannine Barr and Katherine Cabaniss.

The commission’s meetings are closed and it doesn’t reveal how members vote, so it’s hard to know whether empathy played a role in the punishment the judges received. Six of the commission’s 13 members are judges appointed by the state Supreme Court, two are attorneys appointed by the State Bar of Texas, and the other five are citizens appointed by the governor.

Not only are the commission’s votes kept secret, so are many of its decisions. Thirty-five of the 82 reprimands, admonitions and warnings issued by the commission last year were kept private.

It makes sense to protect the reputation of a judge who might have been unfairly targeted in a frivolous complaint. But any time the commission decides a judge has done something wrong, it should name the judge and reveal the misdeed. Voters need that information for the next judicial election.

Only the Texas Supreme Court can remove a sitting judge in Texas, but the commission can suspend or censure a jurist. That it rarely takes those steps could mean Texas is blessed with an abundance of good judges. More likely it means bad judges are escaping the punishments they deserve.

The commission’s workload may be a factor in that result. Jacqueline Habersham, the commission’s interim executive director, told the editorial board that more staff would definitely help handle an increasing volume of complaints.

With only three staff attorneys and four investigators, the commission opened 1,593 new cases in 2018, which was 3.8 percent more than the year before. It also closed 1,661 previously opened cases last year.

Unfortunately, the commission wouldn’t open its sessions or share information about its deliberations with the Sunset Advisory Commission, which advises the Legislature on each state agency’s performance and staffing needs. Instead of stonewalling to keep its investigations private, the judicial conduct commission should provide the information needed to hire enough investigators and lawyers to keep up with the pace of complaints.

Just as important, the commission’s members need to understand their job isn’t to blindly shield judges named in complaints; it’s to find the truth when judges are accused of inappropriate behavior. Texas needs good judges to have fair trials. An adequately staffed and properly focused judicial conduct commission can make sure there are fewer bad judges in the Lone Star State.

The Editorial Board

The Editorial Board is made up of opinion journalists with wide-ranging expertise whose consensus opinions and endorsements represent the voice of the institution – defined as the board members, their editor and the publisher. The board is separate from the newsroom and other sections of the paper.