A crisis in the courts
Killings tied to suspects out on felony bond linked to backlog
Gabino Duarte, a window installer in downtown Houston, had just cashed his paycheck. A woman driving a maroon Ford Expedition was following him on that late afternoon in May 2020. Two men jumped out of the car in a north Harris County parking lot and ambushed the 38-year-old, police said. Duarte fought back against the robbery attempt. He was shot and died at the scene.
The accused triggerman, Kajuane Cartwright, was out on a $30,000 bond for an aggravated robbery with a deadly weapon charge at the time of Duarte’s killing.
A year later, family members marked the death. In their north Houston home, a portrait of Duarte hangs next to one of his older brother — who had been killed years earlier in Mexico.
Duarte’s sister, Leobarda, said she worried that some people have no fear of committing more crime when they are free on bond.
“Once they’ve done it once, they will continue to do it,” she said. “If they let me get out on bond, well, then what am I afraid of ?”
In 2020, 18,796 defendants were charged with new felonies and misdemeanors while out on bond, a number that has tripled since 2015, county data shows. Approximately 89,600 individuals were charged with felonies and misdemeanors in Harris County that year.
And as in Duarte’s case, some of those new felonies are murder charges.
The Houston Chronicle reviewed murder cases in Harris County from 2013 to 2020 and identified 231 deaths linked to a defendant previously charged with crimes and out on bond. The review found that 79 individuals were free on multiple bonds, misdemeanor or felony, before the murder charge and of those, 38 defendants were out on multiple felony bonds.
One of those defendants was Michael Mosley, who was out on three misdemeanor and three felony bonds in November 2020 when authorities say he orchestrated a convenience store robbery that led to a 61-year-old man’s death.
County data showed the number of individuals out on bond while being charged with new crimes, including murder charges, added up to more than 63,370 defendants since 2015.
The 221 murder cases (some with more than one victim) reviewed by the Houston Chronicle represent less than 1 percent of those charged from 2015 to 2020 with a new crime while out on bond for any offense. The cases also represent less than 1 percent of the total homicides in Harris County during the Chronicle’s review period.
Violent crime in Houston, and elsewhere, started rising last year. It plays out in almost daily incidents that add up to a homicide rate that is one of the highest in the last three decades.Just last week, Xavier Davis, of Houston, was charged in a triple killing; he was out on bond on an unrelated family violence charge.
A crisis in the courts has come front and center.
“Like it or not, we are in the midst of a bond pandemic in the state of Texas,” said Andy Kahan, the victims advocate for Crime Stoppers of Houston. In April, he advocated for a failed bill to tweak the state’s bail practices in the legislative session.
“And people are paying the price, the ramifications of what I am seeing for bond reform,” he told lawmakers.
Recent changes to the misdemeanor bond system allowed more people accused of minor offenses to be released without posting cash bail. But they did not affect the felony bail system.
Criminal justice experts say data indicates that it is the sluggishness of the justice system after Hurricane Harvey and the coronavirus pandemic that has left more of these defendants free. Police believe that has led to more crime.
Harris County has a backlog of more than 95,000 criminal cases, compared with 38,000 before Harvey. Hearings, trials and plea deals stalled following the heavy flooding damage to the courthouse, and then the pandemic largely shut down the court system. That caused the exhaustive
case backlog that some authorities, defense lawyers and experts stress is crucial to analyzing the problem.
Criminal justice stakeholders point out that defendants have a constitutional right to nonexcessive bail. They said the rising number of defendants free on bond is not connected to misdemeanor bail reform, part of a federal settlement that rectified the prior inability for poor defendants to make bail in Harris County.
State District Judge Kelli Johnson reiterated that defendants are entitled to such rights under the federal and state constitutions.
“It is easy to look at cases in isolation but remember, individuals are presumed innocent and each case is viewed individually by reviewing the totality of circumstances,” said Johnson, who presides over the 178th District criminal court and is the administrative judge for the felony courts. “The historic backlog of cases stemming from one catastrophe after another has delayed justice as individuals charged await their trial.”
The human cost
The Duarte siblings recently started nine days of praying the rosary to mark the year since burying Gabino Duarte in Mexico.
Anabella Duarte remembered the worry she felt as Duarte failed to return home from work. Calls to him went unanswered.
Relatives said after Duarte was shot, the three suspects fled without the cash.
“He almost always got home around the same time,” Anabella said.
She assured her mother in Guerrero, Mexico, that Duarte would be home any moment. But deputies soon called an aunt with news of his death.
Authorities believe the suspects — Cartwright, Eric Felder and Monay Johnson — targeted him for his paycheck and followed him as he searched for a new work tool. The two men confronted him at a shopping center at 5235 Aldine Mail Route and tried to rob him, court records show.
“They ripped (the heart) out of our chests in an instant,” the sister said. “And it was all for nothing — it was for trying to rob him of a few bucks. A human being’s life is worth far more than a few bucks.”
Authorities on May 28 captured Cartwright. The shooting happened while Cartwright was out on bond for two felonies — aggravated robbery with a deadly weapon and drug possession — and misdemeanor evading arrest from a January 2020 incident. In that case, authorities believe Cartwright — armed with a BB gun — cornered a man at his car and tried robbing him, court records show.
Part of how Cartwright obtained his brief freedom can be traced to his probable cause hearing, the first appearance that can set the pace of a criminal case. The hearings, which happen day and night, are where Harris County magistrates — an appointed lawyer rather than an elected jurist — set bail for dozens of defendants in one sitting.
During these procedures, members of the Harris County District Attorney’s Office and Public Defender’s Office argue how likely a defendant is to return to court and whether they present a danger to the community.
Magistrates also review a defendant’s financial likelihood to make bail.
In Cartwright’s initial adult case in January 2020, the magistrate denied him a personal recognizance bond and ordered him held in lieu of posting a $50,000 bond. Two months later, as the pandemic hit Harris County, a judge in the 262nd District Court lowered his bail to $30,000. Defendants typically pay 10 percent of the bond amount to be released.
Cartwright bonded out April 25 and about a week later prosecutors asked a judge to revoke his bond over a May 2 allegation of domestic violence. Court records do not indicate which judge lowered the bond or whether a judge agreed to the bond revocation, but Cartwright remained free and the killing of Duarte occurred less than two weeks later, on May 14.
For the rest of 2020, Cartwright remained jailed without bail on the capital murder case until a public defender advocated for bail to be set.
A judge set it at $300,000 in January of this year. Cartwright remains in the county lockup.
Duarte’s family, however, expressed dismay that the alleged getaway driver in the case has been free on a $100,000 bond since last July, saying it did not matter that it was her first arrest in Harris County.
“Even though she didn’t shoot, she was there,” the sister continued. “She could also find others and do the same harm.”
Huber Rivera, the surviving brother of the family, spoke up.
“It happened to us — it can happen to anyone,” he said.
Cartwright’s case is among the nearly two dozen of Anthony Osso’s clients charged with capital murder.
The defense attorney said another lawyer represented Cartwright following the earlier arrests.
“His lawyer had a legal obligation to ask for a bond,” Osso said. “I don’t think the judge was at fault because they’re legally obligated to set bond.”
What’s driving the numbers
Kahan noticed an alarming rise in defendants out on multiple bonds early in the pandemic.
Kahan, who for decades was the victims advocate for the Houston mayor’s office, has for months raged against the increasing numbers of charges against people out on bond and rallied for tougher legislation. He has kept his own log of the number of defendants charged with murder and other crimes while out on bond — homing in on those accused of multiple felonies.
Though such instances represent a small minority of cases, the jump in the number of defendants on multiple felony bonds is difficult to explain.
“I’ve always been mystified how so many of these cases are on multiple felony bonds,” Kahan said. “It just defies logic.”
The GOP-backed bill that Kahan championed took aim at cases involving multiple felony bonds. It would require judicial officers to use a risk assessment tool when making bail decisions and would ban cashless releases for some crimes.
But it fizzled as an unintentional consequence of Democratic lawmakers walking out of contested voting rights legislation. The act of protest effectively ended the session before the proposed bail bill could land on Gov. Greg Abbott’s desk. Another version of the bill was reintroduced in the special session that started Thursday.
People wanting the stricter bail options called the issue “bail reform” — an initiative separate from the federal settlement that overhauled Harris County’s misdemeanor bail practices so poor defendants charged with low-level crimes could be free before trial.
Drew Willey, founder of Restoring Justice, which provides bail fund and legal aid to indigent defendants, said felony bail reform has not happened, and that misdemeanor bail reform cannot be blamed for what critics have alleged are “violent criminals being on the streets.”
Doug Griffith, president of the Houston Police Officers’ Union, is most worried about defendants out on multiple felony bonds — which Kahan also fears. Griffith believes it presents a danger to Houston and its law enforcement.
“We have to come up with a way to keep them locked up,” Griffith said.
The debate over the increase in repeat felony offenders often frus
trates advocates for defendants’ rights, who argue that bail is guaranteed by the Constitution.
The state constitution rarely allows for people to be held without bail, except in capital murder cases. In some instances, being held without bail is contingent on having a speedy trial within 60 days — an almost impossible task with the county’s exhaustive backlog. Thus, many people are released on bond.
The role of judges
As killings ramped up last year in Houston — and elsewhere in the nation — voices in law enforcement blamed judges for releasing people who then were charged with murder.
“We are seeing a troubling surge in violent crime, such as murder and armed robbery, committed by defendants who some courts have released on bond for new and repetitive offenses,” said David Mitcham, first assistant and chief of courts for the Harris County District Attorney’s Office.
“The only real question is, how much crime are the people of Houston and Harris County willing to tolerate before this problem is corrected?” Mitcham continued in a statement. “It is preposterous to assert that continuing to release violent and repetitive offenders on bond is somehow not fueling the crime rate.”
Former Police Chief Art Acevedo, who stepped down in March, was among those who pinned the increasing number of deaths on the judicial system.
“Too many Harris County criminal court judges and magistrates are coddling criminals and placing our communities and cops at risk,” Acevedo tweeted in May 2020.
The Chronicle’s analysis found that most judges set bail on only one or two defendants who would go on to be charged with murder. Those who set bail in a greater number of cases were instead magistrates, who served most of the years in the Chronicle’s review, meaning they heard many more cases during probable cause hearings. Three magistrates each set bail for a dozen or more of the 221 defendants in the group analyzed by the Chronicle.
The data shows that, overall, bail amounts in the probable cause hearings rose alongside the yearly increase in murder charges while on bond. Many magistrates also denied bail in the most serious cases, only to have judges set bail weeks later as part of the defendants’ constitutional right.
In many cases, public documents detailing bail decisions lack a judge’s name or signature. Some decisions are made verbally in court. For about 40 of the 221 cases analyzed, the Chronicle was unable to determine which magistrate set bail because of illegible signatures and a lack of probable cause documents on the Harris County District Clerk’s website.
The Chronicle contacted all 23 felony judges, 16 misdemeanor judges and 10 magistrates through their staff attorneys. One misdemeanor judge and one felony judge responded.
Elected judges typically do not respond to inquiries about cases because of judicial rules that prevent them from doing so, but some will speak about policy. Magistrates follow similar rules.
David Singer, a Democratic judge presiding over Harris County Court at Law No. 13, said felony judges are wrongly taking the heat as a result of last year’s uptick in violent crime. And crime rates are not nearly as high as they were in the 1980s, he noted.
“It’s easy for law enforcement to point the finger at judges when someone is accused of a crime,” Singer said. “It’s an easy diversion from pointing the finger at themselves.”
Almost every player in the criminal justice system has a role in what has become a serious problem in the felony courts, said Mike Fields, a former Republican misdemeanor judge.
Both jurists agreed that it would be unjust to try preventing future crimes by detaining misdemeanor defendants before trial. Onethird of the defendants in the Chronicle’s review were out on bond for misdemeanor charges alone at the time of the homicide.
Singer and Fields added that felony judges should have more leeway in detaining people without bond on violent crimes.
Several experts urged caution about interpreting the Chronicle’s data, saying it’s too soon to assign responsibility to anyone.
Kahan maintains that officials are granting more personal recognizance bonds to people charged with violent felonies. Personal recognizance bonds, also known as PR or unsecured bonds, do not require a deposit on the face value of bail, and defendants appear in court on their own word. Judges individually approve them for defendants they feel no security is necessary.
The Chronicle’s analysis indicates that less than a fifth of defendants in the 221 cases were out only on personal recognizance bonds or general order bonds, meaning they had paid little or no money to secure their release. Some of those charges included felonies. The majority of people accused of killing someone had been released on surety bonds — meaning they had to pay bail in order to get out.
Only two defendants were granted solely a personal recognizance bond while charged with a violent crime.
For many defense attorneys, the finding that surety bonds are still most common for people charged with felonies backs a common refrain: People who have money to make bail will do so.
“If you have the money, you can get out,” said Alex Bunin, Harris County’s chief public defender. “That seems to be more of a lesson about why cash bail is not a panacea for anything.”
Paying to get out of jail is no guarantee that the person will not reoffend, as evidenced by the data that indicates most charged with murder while out on bond had paid to get out.
Bunin said the blame game amounts to an unfair expectation of judges.
“Judges are not experts on any of this, and they’re not experts on risk,” Bunin said. “Nobody is. You cannot predict the future.”
A pandemic problem?
Some experts say the spike in crimes committed by those on bond is connected to Houston’s streak of bad luck with acts of nature: Hurricane Harvey and the coronavirus pandemic.
The average number of cases in which defendants on bond were charged with murder rose starting in 2018. Prior to the 2017 storm, such cases averaged about 16 per year.
That number rose to 28 in 2018 after the storm’s flooding inundated and shuttered the Harris County Criminal Courthouse. Those cases climbed again to 38 in 2019.
2020 ended with 74 such cases as the pandemic swept through the Houston area and paused most in-person court proceedings.
Howard Henderson, professor and founding director of the Center for Justice Research at Texas Southern University, put it plainly.
“Houston never really recovered from Harvey,” he said. “And its criminal justice (system) never really bounced back.”
Trials came to a halt for two months after Harvey and later restarted at a trickle. The same happened to other court proceedings, such as arraignments, pleas and bond hearings. Judges doubled up rooms in neighboring courthouses as flood damage rendered most of the criminal building uninhabitable. The logistical nightmare continued for more than a year. Then the pandemic happened.
The courts closed last April to nonessential proceedings. Prosecutors and some judges worked from home. Those circumstances led to a growing backlog of unresolved cases. Pending felony cases sit at more than 54,000 and pending misdemeanor cases at 41,000, according to the Harris County Justice Administration Department.
Police Chief Troy Finner recently cited the backlog — which he attributed to Harvey and the pandemic — as a contributing factor to the increasing frustration among his ranks. More than 1,500 of the department’s murder cases — a third of which involve capital murder charges — have yet to go to trial, he said.
That number is a 15 percent increase from last September.
“The court systems are not moving fast enough,” Finner said, following a recent law enforcement summit. “If we’re arresting people but they’re not going to prison when they need to — that’s a problem.”
He urged the courts to expedite low-level, nonviolent cases while focusing their attention on the recidivism of violent offenders.
Defendants in cases from 2020 that the Chronicle reviewed were out on bond an average of 181 days before the murder charge. In 2015, before Harvey, the average was 94 days.
Bunin, the public defender, offered an explanation for the growing number of reoffenders on bond — a change in perception.
Prior to Harvey, and even the misdemeanor bail reform settlement, defendants would plead guilty more quickly because they were being held in jail, he said. They would be sentenced to prison and eventually released. Some of them would later commit new crimes, such as murder.
In 2020, Bunin theorized, people are still on bond at the time of a killing because of how much longer cases are taking to resolve.
The real challenge, Henderson said, will be how an array of public agencies, from the District Attorney’s Office to the Houston Police Department, decide to tackle the problem. The county’s proximity to natural disasters will only make matters worse.
“They have to figure out how to manage in these new realities,” Henderson continued.
Jim Bethke, interim director of Harris County Pre-Trial Services, which monitors people on bond, said his department is placing allegedly violent offenders on tighter supervision. He warned against assigning an increase in violence to any one factor. Many people, he said, were unable to access social services during the pandemic and that may be at least one contributor.
“We are taking this opportunity to expand the services offered and focus closely on providing supervision and support for individuals who are more likely to use violence,” Bethke said. “We recognize that there is a need for community safety while balancing the rights of people not adjudicated.”