District judge faces a complaint over bond revocations
By Samantha Ketterer and St. John Barned-Smith
Since November, eight defendants fresh out of jail on bond have walked into state District Judge Ramona Franklin’s court and been sent right back to jail.
Instead of standing for a routine court hearing in a first step in their criminal court cases, they ended up back in sheriff’s custody after Franklin revoked their bail and ordered them back behind bars, sometimes with no lawyer present for the defendant.
The process has put Franklin at odds with defense attorneys across Harris County who argue she is engaging in behavior that unfairly penalizes defendants who are presumed innocent — and can cause them to lose thousands of dollars they have scraped together to pay their bail.
Defense attorneys say Franklin revoked their bonds without notice or cause, some of them without legal representation. They argue the process is illegal, in a judicial complaint filed earlier this week with the State Commission on Judicial Conduct.
“Many times these people are effectively ambushed,” said Grant Scheiner, with the Texas Criminal Defense Lawyers Association. “They can’t defend themselves and have no access to counsel.”
Franklin declined to comment, citing judicial canons that
bar her from speaking about ongoing legal matters. Judge Susan Brown, who oversees southeast Texas’ six-county Eleventh Judicial Administrative Region, also declined to comment.
‘Unthinkable in a civilized society’
For years, defense lawyers have watched Franklin call defendants to the bench and conduct a “bail review” without taking record of the proceeding, they say. Defendants aren’t given notice, and an attorney isn’t always present, according to the complaint.
A rare appeal over one such bond revocation prompted other attorneys to monitor Franklin’s court. After the court ordered Franklin to reinstate the bond amount originally issued to the defendant in the appeal, the attorneys found that the judge acted the same way in at least seven other cases, said Mark Thiessen, president of the Harris County Criminal Lawyers Association. The group is also looking into misconduct by other judges.
Courthouse veterans said the process raises significant questions.
Elizabeth Rossi, senior attorney for Civil Rights Corps, called Franklin’s alleged bail practices inhumane, especially in light of the ongoing pandemic. Civil Rights Corps is the group which successfully challenged the misdemeanor bail system in Harris County and is now behind a felony bail lawsuit.
“Even a few hours in jail is traumatic,” Rossi said. “The fact that any judge would send a person into such an environment without so much as an opportunity to argue against it should be unthinkable in a civilized society.”
The defense lawyers’ complaints hinge on the fact that suspects, who are still presumed innocent, had already paid money to secure their release on bond and showed up in court, as required.
When arrested, suspects usually appear before a magistrate who determines probable cause and a bail amount. After posting bail and being released from custody, they have about a day to appear before a district court judge, where they’re expected to be appointed counsel.
But Thiessen and Scheiner said the defendants complied with the rules of their appearance while Franklin violated procedure, going against the mandate recently issued in an appeals court.
“When the court of appeals hands down the decision telling you not to do something and you proceed contrary to that decision, it just shows a lack of respect for the court of appeals and the Constitution,” Thiessen said.
Franklin has said that she asks attorneys to stand in during those proceedings, the defense lawyers said, but no formal appointment or recording of those stand-in attorneys exists.
Most recently in these initial appearances, Franklin has called some of the defendants to her stand without an attorney present, Thiessen said. A prosecutor reads probable cause findings — the same document and evidence read to a magistrate — and Franklin revokes bond, raises bail amounts and remands the defendant into sheriff ’s custody.
“The practice she is engaging in is very unusual,” said Amanda Peters, a law professor at the South Texas College of Law Houston who teaches criminal procedure. “I’ve never seen a judge revoke a bond and then set a higher one if a defendant didn’t violate a condition of bond.”
In some cases, she has ordered defendants who’d posted bond be held without bail, a move defense attorneys say is a clear violation of their clients’ constitutional rights.
State law mandates that judges need to give the defendant “reasonable notice” that they intend to deny bail and allow “meaningful opportunity to be heard.”
Most of the defendants were denied the opportunity for representation before Franklin acted in their cases, using probable cause materials that are often considered inadmissible evidence in trials, Thiessen said.
“Each of these defendants appeared in court and had no notice of what was about to take place,” the defense lawyers said in the complaint. “No notice that Judge Franklin intended to revoke their bonds. No notice that Judge Franklin intended to deny them bail.”
Those probable cause documents were the same materials magistrates used to set the initial bond amounts, meaning no new evidence existed, the complaint alleges. Harris County Public Defender Alex Bunin said Texas law requires new evidence is required under a Texas statute that requires “good and sufficient cause” to raise bond. Franklin is just one of several judges who use these practices, he said.
“I think the issue is going to be taken a lot more seriously now,” he said. “Some judges have followed the rules of due process better than others, and I think that’s also coming to light.”
‘To my surprise’
The appeal that spurred court watchers to complain against Franklin is still ongoing.
The case began in November , when Deer Park police responded to a domestic violence call and arrested Joseph Gomez, 27. Court records show he was accused of attacking his girlfriend and choked her, and charged with burglary and assaulting a family member .
The next morning, he appeared before a magistrate. A prosecutor asked the magistrate for a restraining order and that his bail be set at $100,000 on each charge, and to order Gomez to have no contact with the woman he was accused of attacking.
A public defender who represented Gomez at the hearing asked his bail be set at a combined total of $30,000, arguing that Gomez deserved a lower bail because he had no prior convictions, had not previously failed to appear for court and had no pending charges. The public defender also noted Gomez’ age, said he had a job, and was attending community college while living with his parents.
The magistrate set Gomez’ bail at $40,000 — $25,000 for the burglary charge and $15,000 for the domestic violence charge. Two days after he was arrested, Gomez’ parents posted his bond and then Gomez went to court to attend a hearing related to the case.
At the end of the hearing, Franklin revoked Gomez’ bail, ordered he be re-arrested, and raised his bail to $75,000 on each charge — a sum his father said he would not be able to pay.
If defendants pay a bondsman to post their initial bail, they are unlikely to get that money back, attorneys said.
“When a defendant posts bail and the judge revokes it, the money is non-refundable,” said Peters, the law professor. “So if this defendant scraped together the money to pay a bondsman, when that bail is revoked, the defendant doesn't get any of it back. He can't use it to post a new bond. The revoked bail goes to the county, not back to him.”
Gomez filed a writ challenging Franklin’s ruling, and in early August, the Court of Appeals found Franklin had abused her discretion by raising Gomez’ bail without providing any justification for the increase.
The day after the appellate court’s ruling, Gomez walked out of jail. He had been behind bars for 269 days, attorney Brent Mayr said. His parents had not been able to pay the higher bond Franklin had ordered.
Days after the mandate was issued, the lawyers association found that Franklin revoked bond and denied bail for four more people. She did that for three others within the next week (most of whom were facing assault-related charges).
One defendant wrote about his proceeding in an affidavit for the judicial complaint. Brian Smith, charged with assault of a family member by choking, had been granted a $15,000 bond by a magistrate, but Franklin revoked it and issued no bond the next day.
“Then, to my surprise, the judge stated that she was revoking my bond, taking me back into custody, and setting my bail amount at $0,” he said.
David Cunningham, an attorney who was present in the courtroom that day, said Smith appeared to be confused.
Franklin frequently appears at the top of the Texas Criminal Justice Coalition’s pre-trial detention report, which tracks the number of people held in jail awaiting trial. Between Aug. 16 and Aug. 22, her court held 243 people on bonds they couldn’t pay.
The judge, a Democrat who presides over the 338th state district court, is up for re-election in November. She is running unopposed.
It’s unclear whether Gomez will remain on bond. The Texas Criminal Court of Appeals has recalled the mandate that freed him, at least until they decide whether to pick up the case.