Storm delays indictments; 56 in jail may be released.

Dozens of suspects in jail on felony charges, some as violent as murder or child molestation, may soon be free on minimal bail after the Harris County District Attorney’s Office missed deadlines to indict, largely because of Hurricane Harvey.

The technical snag, being raised by defense attorneys across Houston, means 56 people who are in jail suspected of felonies, including armed robberies and causing drunken driving wrecks, could be released on personal recognizance bonds because they were not indicted, or formally charged, by a grand jury within the 90-day window required by law.

“This is not a procedural nicety,” said Troy McKinney, a past-president of the Harris County Criminal Lawyers Association. “This is substantive. People who do not have other holds are being held unlawfully, and they need to be given PR bonds or a bond they can make.”

Prosecutors at the district attorney’s office are trying to keep these accused criminals behind bars. They will be filing motions arguing to trial judges to extend the deadlines because Texas was under a state of emergency during the flood. The record storm closed the county’s courthouses, cancelling court proceedings since Aug. 28. Grand juries, which typically meet twice a week, have not been able to convene.

“The bottom line is that I don’t believe that anyone is getting out of jail because of the delay caused by the hurricane,” said David Mitcham, the chief over the DA’s trial bureau. “We believe this is an issue that we are going to be able to resolve without any exposure of the public to any danger.”

He is basing his argument on an order issued Aug. 28 by the Court of Criminal Appeals saying, “All courts in Texas should consider disaster-related delays as good cause for modifying or suspending all deadlines and procedures — whether prescribed by statute, rule, or order — in any case, civil or criminal.”

‘Impossible situation’

One of the cases is a murder charge filed against Tavish McKinley, a 25-year-old accused of gunning down Rayland Dunta Maryland, 22, during a streetfight in February 2016. McKinley was arrested more than a year after the alleged crime, and he remains in the Harris County Jail in lieu of $100,000 bail. His attorney did not return calls about whether he will try to get McKinley released.

If McKinley’s attorney or any other lawyer pursues the issue, they will have to go before a judge and request their client be released because their client has not been indicted.

If that happens, the district attorney’s office will argue that the high court’s order inoculates them against missing the deadline.

“The reason the deadline wasn’t met was because it couldn’t be met,” Mitcham said. “We were in an impossible situation — there were no grand juries; there was no court.”

HCCLA lawyers said they want the law followed as it is written.

McKinney, one of Houston’s most respected criminal law scholars, said Mitcham was making “a creative argument but one that has no legal basis in reality.”

“Neither the Texas Supreme Court nor the Court of Criminal Appeals have blanket authority to override the Constitution or state statute, no matter how much they want to,” he said.

He said the Texas Constitution limits the government’s ability to hold people in custody without cause, and state laws have been written with that in mind.

“The statute is there for a reason,” he said. “It is there to ensure that people are not held excess periods of time without cause, and if the state hasn’t indicted somebody in 90 days — the law has been clear for decades — that they are entitled to a PR bond.”

Procedural rights

A personal recognizance bond, which is sometimes called a free bond because no money changes hands, allows people to get out of jail with just the promise to return for court. They may sign documents making them responsible for a money bond if they don’t make their court appearance, but no money is required to get out. It is generally reserved for low-level non-violent offenders with no criminal history.

The issue is expected to linger until next week when Harris County courts reopen on Monday. Since the criminal courthouse will be closed for the next six to nine months, the county’s 22 felony courts will be reopened in courtrooms in the civil courthouse at 201 Caroline. Grand juries began convening Thursday in Houston’s historic 1910 Courthouse.

After judges are back in courtrooms, defense lawyers will be able to get to court to argue that their clients should be released on personal recognizance bonds. Some are expected to argue that even if their clients were indicted after the 90-day window, it does not matter.

They also are expected to argue that the district attorney’s motion to suspend deadlines is unconstitutional.

“There are procedural rights, and there are fundamental rights,” said Tucker Graves, president of the lawyers association. “The fundamental rights include the 4th, 5th and 6th Amendments and that’s what this falls under.”

Dozens on list

Graves said individual lawyers in the association are trying to determine the best course of action for their clients. He said lawyers will be in contact with specific prosecutors to work on the issue in light of the havoc wreaked by the storm.

“We want to digest this and talk among our members because we understand we are in a unique set of circumstances,” he said. “And we are trying to work hand-in-hand with the district attorney’s office to help everyone in this time of crisis.”

Members of the defense bar also were circulating a list of almost 100 possible suspects who appeared to have missed the deadline.

The district attorney’s office drafted a motion late Wednesday with a preliminary list of 96 defendants, but that number fell Thursday as officials reviewed the files and determined that 56 people may be affected. The others are either being held because they were lawfully indicted on other charges or were not in custody for 90 days before the storm began, according to a breakdown provided to the Houston Chronicle.

Two of the suspects on the longer list are Philip Battles and Ferrell Dardar, both 18. The two with Marco Alton Miller, 17, are accused of a crime spree last year that included armed robberies and two capital murders allegedly committed while two of them were out on bail for other crimes. Since they have other cases that have been lawfully indicted, they will not be eligible for release.