Post by WaTcHeR on Apr 29, 2006 13:30:15 GMT -5
04/29/2006 - For 10 years, El Paso authorities used peace-officer bonds to speed up the release of persons in warrantless-arrest cases. Although the practice is on hold, critics contend it is illegal, because it bypasses the magistrate hearings they say Texas statutes require for all arrestees.
Now it's up to the Texas Office of the Attorney General (OAG) to decide whether El Paso District Attorney Jaime Esparza can revive the bail procedures he instituted in 1994 as part of the District Attorney's Information Management System, known as DIMS.
On Feb. 1, Esparza asked the OAG for an opinion on whether El Paso police can set bail for misdemeanor and felony arrestees and whether the sheriff can accept in the county jail those arrestees who have not first appeared before a magistrate. Esparza supplemented his opinion request with an April 20 letter brief to the OAG, offering arguments in support of his position that the bail practice is legal. [See the brief.]
"DIMS is a fair, legal process, and it's time-tested, because we did it for 10 years," Esparza says in an interview.
El Paso solo Sam Snoddy, an attorney for the plaintiffs in a number of civil rights suits that challenge the bail practice, disagrees. "This DIMS is as illegal as it can be," Snoddy says.
OAG spokesman Tom Kelley says Attorney General Greg Abbott has 180 days from the time a request is made to issue an opinion. Esparza says he's not expecting an opinion until sometime this summer.
The city and county of El Paso operate DIMS under an interlocal agreement, according to Esparza's Feb. 1 opinion request. Esparza contends that the bail practice used in DIMS increases the effectiveness of law enforcement and saves taxpayers money, because arrestees do not have to sit in jail waiting to see a magistrate. A majority of the arrests made in El Paso County are warrantless, Esparza says, but adds that cases involving murder, intoxication manslaughter and some other offenses do not go through DIMS.
Under DIMS, assistant district attorneys screen each case shortly after police make a warrantless arrest, to determine whether to prosecute the individual, Esparza says. In the past, if the ADAs decided to prosecute an individual, the sheriff set the bond amount based on a bond schedule approved by the El Paso County Council of Judges, Esparza says.
But El Paso County Sheriff Leo Samaniego ended the DIMS bail practice on Nov. 5, 2005, and refuses to accept anyone in the county jail who has not first appeared before a magistrate.
"I'm not going to accept anybody until they've been before a magistrate and a magistrate determines probable cause and sets the bond," Samaniego says. There is no need for the DIMS bail practice, because El Paso has magistrates readily available, he adds.
El Paso City Attorney Charles McNabb says police officers often have to search for a magistrate. McNabb says the sheriff has a magistrate available at the jail during daytime hours and the city has a magistrate who works a late-night shift Monday through Friday. But magistrates are not readily available during evening hours or on weekends, when most arrests are made, he says.
El Paso's municipal judges are elected and maintain private law practices, so they are available when police officers can find them, McNabb says.
He says the city favors the DIMS program, because it gets police officers back on the street quickly. "With DIMS, the booking process takes one or two hours," he says. "Without DIMS, it takes eight to 10 hours."
Critics of DIMS say when the magistrate process is bypassed, indigent defendants don't have a chance to request appointed counsel to represent them until long after the criminal proceedings against them have commenced.
Jerome Wesevich, litigation coordinator for Texas RioGrande Legal Aid in El Paso, says Abbott faces a critical decision on the issue.
"This is not just about El Paso," Wesevich says. "This is being pitched as a statewide model."
Wesevich is one of the attorneys who joined the American Civil Liberties Union of Texas in filing a brief with the OAG to oppose the use of peace officer bonds.
The Texas Task Force on Indigent Defense is studying the El Paso DIMS system and is considering recommending DIMS as a model program, according to an Oct. 21, 2005, letter that task force director James Bethke wrote to Esparza. The Legislature created the task force in 2001 as part of the Fair Defense Act, which is designed to improve the defense of indigents in criminal cases.
Bethke says in an interview that El Paso County is one of three counties that the Public Policy Research Institute (PPRI) at Texas A&M University is looking at for the task force. The other two counties that PPRI is studying are Harris and Bexar, he says.
Later in his letter to Esparza, Bethke expressed hope that as the benefits of peace officer bond programs are realized, more counties would follow El Paso's lead.
Esparza, a former assistant district attorney in Houston, says he patterned DIMS after the way Harris County processes cases.
Bill Delmore, chief of the Legal Services Bureau in the Harris County DA's Office, says the Harris County intake process is like the El Paso DIMS program in that both use a bond schedule to determine bail amounts.
But Delmore says DIMS differs from the Harris County process in an important way. Delmore says Harris County files a complaint charging an arrestee with an offense in the court that ultimately will hear the case. The court directs the clerk to set the bond according to the bail schedule, pending the arrestee's initial appearance before a magistrate. The magistrate can deviate up or down, depending on the circumstances of the case, he says.
Under the DIMS program, prosecutors don't immediately file complaints in court because the arrestees bonded out before seeing a magistrate, Delmore says.
Esparza says his prosecutors typically file a complaint the day after an arrest.
Williamson County District Attorney John Bradley says his county also patterned its filing system after Harris County's direct filing system.
When any arrest is made in Williamson County, Bradley says, the arresting officer books the arrestee in the jail. The officer must complete an affidavit to state the probable cause for the arrest if there is no warrant, Bradley says. Within 24 hours of the arrest, he says, a magistrate reviews the officer's affidavit to determine if there was probable cause, sets bond for the individual and reads him his rights.
"I would say over 90 percent of the counties in Texas take something like that as their approach," Bradley says. "Having a police officer make a bond decision, while authorized, is a fairly unusual process in Texas today. I'm not saying there is anything wrong with it."
But Abilene solo Randy Wilson, president of the Texas Criminal Defense Lawyers Association, says he has concerns about the DIMS bail practice.
"I've got a real problem with an ADA and a cop there and no neutral party," Wilson says.
Wilson says police and prosecutors are notorious for overcharging on an offense. It's not unheard of for a person who has been arrested following a fight to be charged with attempted murder, he says.
However, part of the dispute over the DIMS bail practice centers on who actually set the bonds.
Esparza maintains that the sheriff set the DIMS bonds prior to Nov. 5, 2005. "Every single one of those bonds is stamped approved by the sheriff," he says.
Samaniego's name stamp appears on a copy of an Aug. 8, 2003, bond that Esparza provided to Texas Lawyer.
But Samaniego is adamant that he never set bonds and was never requested to do so by Esparza or any other attorney for the county. "Everyone knew that the ADAs were setting the bonds," Samaniego says.
The sheriff isn't the only one who has taken that position. "I don't think there is any question that the ADAs set the bonds before Nov. 5, 2005," Wesevich says.
Anna Perez, an El Paso assistant county attorney who represents an assistant district attorney in one of the civil rights suits filed over DIMS, says the ADAs did not set the bonds and were merely "mouthpieces" in the bail-setting practice, meaning the ADAs merely relayed the bond amount according to the bond schedule and that the sheriff set the bond.
While Samaniego says he didn't participate in the DIMS bail practice, he approved the bond schedule used to determine the bail amounts, Perez contends. The sheriff's office essentially set the bond at the same time it accepted an arrestee's bond as reasonable and took the individual's money, she says.
According to a brief that Christine Pacheco, the chief legal adviser to the sheriff, filed for Samaniego on April 10 with the OAG, the sheriff did not sign the city-county interlocal agreement on DIMS, and no counsel representing the county ever advised him in writing that he would be responsible for setting bonds on warrantless arrests made under the DIMS program. [See the brief.]
Esparza says the DIMS bail practice could not continue as it had in the past after Samaniego said he was not setting the bonds, because ADAs don't have authority to set the bonds.
But Esparza contends El Paso has "taken giant steps backward," because the sheriff is requiring police officers to obtain a warrant after the fact from a magistrate for each warrantless arrest. The arrestee also must appear before the magistrate before being booked, Esparza says.
In the DIMS program, arrestees have bonds set when they are booked into the jail and can be released within a short time, but it now takes much longer, Esparza says.
Practical Impact
A number of provisions under the Texas Code of Criminal Procedure are at issue in the debate over DIMS.
In a brief filed March 30 with the OAG, the ACLU and other public interest groups argue that Code of Criminal Procedure Article 14.06 requires peace officers to present every person arrested without a warrant to a magistrate "without unnecessary delay, but not later than 48 hours after the person is arrested." According to the groups' brief, the magistrate before whom the arrestee appears must immediately perform the duties required in Article 15.17. At the Article 15.17 hearing, the magistrate determines whether there was probable cause for a warrantless arrest, informs the arrestee of the accusation against him and of his rights, including the right to retain counsel or to request an appointed counsel. The magistrate also sets bail.
The groups argue in their brief that one practical impact of the procedures under DIMS has been that people who qualify for pretrial release without paying a bail bond have been less likely to be released, because peace officers do not have authority to issue personal bonds.
"Consequently, under DIMS, arrestees who could not afford to post peace officer bonds were held in jail at county expense for several days after magistration before the magistrate would consider their request to reduce the peace officer bond or substitute a personal bond," the groups wrote in their brief.
Another problem, the groups contend, is the DIMS bail practice delays magistrates in advising arrestees of their rights.
Esparza argues in his Feb. 1 opinion request to the AG that it's lawful for municipal police officers to set reasonable bail for misdemeanor and felony arrestees pursuant to Code of Criminal Procedure Articles 17.05, 17.20 and 17.22 of the code.
Article 17.05 provides that a peace officer can take a bond from a defendant if authorized by Article 17.20 or Article 17.22.
Article 17.20 authorizes peace officer bonds in misdemeanor cases. But the ACLU and the other groups argue in their brief that the authorization under Article 17.20 is limited to situations in which no magistrate is available.
The groups argue further that Article 14.06 requires an arresting officer to take the person arrested before a magistrate "without further delay, but no later than 48 hours after the arrest." The authority to fix and take a pre-court bond in a misdemeanor case does not relieve the officer of the duty to take the arrestee before a magistrate, the groups contend.
"You can't construe laws where they're not consistent with each other," Wesevich says.
Esparza contends that Article 17.22 authorizes peace officers to set bond for felony arrestees. But the public interest groups argue that the statute empowers peace officers in limited circumstances to set bond for felony arrestees but not until a case is pending before a court. No case is pending in a court when an arrestee goes through the DIMS process.
But Esparza argues in his April 20 brief that Code of Criminal Procedure Article 17.033 further supports a conclusion that it's lawful for municipal police officers to set reasonable bail for misdemeanor and felony arrestees. As noted in Esparza's brief, Article 17.033 entitles a person who is arrested without a warrant and who is being held in jail to be released on a bond, without a magistrate determining probable cause. Under Article 17.033, a person in jail for a misdemeanor is entitled to release within 24 hours after an arrest on a bond of no greater than $5,000. If the offense is a felony, Article 17.033 provides that the person is entitled to release within 48 hours after being arrested, and the bond can't exceed $10,000.
Esparza further argues in his April 20 brief that Article 17.05 limits the persons authorized to set bail and that a peace officer is one of those persons.
In an interview, Esparza says the DIMS bail practice benefits the arrestee, who has an option for early release, and the county, which doesn't have to house the arrestee for as long. "The taxpayer gets a break because we're able to move more cases," he says.
Snoddy contends that one of his clients, Mark James Bittakis, spent 11 days in the El Paso County Jail after getting caught up in the DIMS program.
Bittakis alleges in his first amended complaint in Bittakis v. City of El Paso, filed Oct. 31, 2005, in the U.S. District Court in El Paso, that the DIMS program violated his civil rights and is unconstitutional. Defendants in the suit are Esparza, the city and county of El Paso, Assistant District Attorney Lisa Clausen and El Paso police officers Krandell Chew, Laura Canonizado, J. Nevarez and Raul Prieto.
Bittakis, a former U.S. Air Force pilot who works for a defense contractor on Elgin Air Force Base in Florida, alleges in his complaint that El Paso police arrested him on a drug charge at El Paso International Airport in January 2005, after a Transportation Security Administration investigator found a package containing "a white substance" in his luggage. As noted in the complaint, police determined in a field test that the substance was cocaine, although Bittakis repeatedly told them it was laundry detergent.
An assistant district attorney found probable cause for the arrest and set a $75,000 bond for Bittakis, and police booked him into the county jail, Bittakis alleges in the complaint. Although Bittakis was "herded" before a magistrate with a number of other inmates — the complaint doesn't state when — he was not given an opportunity to tell the magistrate that the substance was laundry detergent, Bittakis alleges.
A Texas Department of Public Safety lab determined the substance was not cocaine on March 4, 2005, according to the complaint.
Snoddy says Bittakis spent 11 days in jail, because he didn't know the telephone numbers of his family members and didn't know any lawyers in El Paso. Bittakis stored phone numbers in his cell phone, which police took away from him, Snoddy says.
Bittakis is seeking more than $1 million in compensatory damages and an unspecified amount of punitive damages against the defendants. He also is seeking a declaratory judgment that DIMS violates the Texas Constitution, U.S. Constitution and state law, because persons arrested without warrants are not taken before a neutral magistrate.
Jennifer Callan, an assistant city attorney who represents the city of El Paso, says the city is immune from Bittakis' suit. "We don't have any policy, practice or custom in place that violates his constitutional rights," Callan says.
Perez, who represents Clausen in the case, says Clausen also is protected by law from the suit because she did not do anything that was outside her scope of authority.
Jo Anne Bernal, an assistant county attorney, represents Esparza and El Paso County, but declines comment.
Esparza says the problems Bittakis alleges would have occurred whether authorities handled the case as a "regular route" case or as a DIMS case. The substance found in Bittakis' luggage tested positive for cocaine in a police field test, Esparza says. His office declined the case after the DPS lab determined the substance was not cocaine, he says.
El Paso criminal-defense solo Duane Baker, attorney for the three police officers named as defendants in Bittakis' suit, says his clients acted reasonably after the field test indicated Bittakis had cocaine in his luggage. It was Bittakis' choice not to request a court-appointed attorney or to contact an attorney to get him released from jail, he says.
Snoddy says Bittakis spent $30,000 trying to resolve the problems stemming from his arrest for possession of laundry detergent. But the purpose of the suit, he says, is to have DIMS declared unconstitutional.
El Paso criminal-defense solo Jim Darnell says he considers the controversy over DIMS a non-issue. Darnell says arrestees probably got out of jail quicker and with lower bonds under DIMS than they did before the program started.
Notes Darnell, "If this thing gets thrown out, what you'll wind up with is everybody sitting in jail longer."
Now it's up to the Texas Office of the Attorney General (OAG) to decide whether El Paso District Attorney Jaime Esparza can revive the bail procedures he instituted in 1994 as part of the District Attorney's Information Management System, known as DIMS.
On Feb. 1, Esparza asked the OAG for an opinion on whether El Paso police can set bail for misdemeanor and felony arrestees and whether the sheriff can accept in the county jail those arrestees who have not first appeared before a magistrate. Esparza supplemented his opinion request with an April 20 letter brief to the OAG, offering arguments in support of his position that the bail practice is legal. [See the brief.]
"DIMS is a fair, legal process, and it's time-tested, because we did it for 10 years," Esparza says in an interview.
El Paso solo Sam Snoddy, an attorney for the plaintiffs in a number of civil rights suits that challenge the bail practice, disagrees. "This DIMS is as illegal as it can be," Snoddy says.
OAG spokesman Tom Kelley says Attorney General Greg Abbott has 180 days from the time a request is made to issue an opinion. Esparza says he's not expecting an opinion until sometime this summer.
The city and county of El Paso operate DIMS under an interlocal agreement, according to Esparza's Feb. 1 opinion request. Esparza contends that the bail practice used in DIMS increases the effectiveness of law enforcement and saves taxpayers money, because arrestees do not have to sit in jail waiting to see a magistrate. A majority of the arrests made in El Paso County are warrantless, Esparza says, but adds that cases involving murder, intoxication manslaughter and some other offenses do not go through DIMS.
Under DIMS, assistant district attorneys screen each case shortly after police make a warrantless arrest, to determine whether to prosecute the individual, Esparza says. In the past, if the ADAs decided to prosecute an individual, the sheriff set the bond amount based on a bond schedule approved by the El Paso County Council of Judges, Esparza says.
But El Paso County Sheriff Leo Samaniego ended the DIMS bail practice on Nov. 5, 2005, and refuses to accept anyone in the county jail who has not first appeared before a magistrate.
"I'm not going to accept anybody until they've been before a magistrate and a magistrate determines probable cause and sets the bond," Samaniego says. There is no need for the DIMS bail practice, because El Paso has magistrates readily available, he adds.
El Paso City Attorney Charles McNabb says police officers often have to search for a magistrate. McNabb says the sheriff has a magistrate available at the jail during daytime hours and the city has a magistrate who works a late-night shift Monday through Friday. But magistrates are not readily available during evening hours or on weekends, when most arrests are made, he says.
El Paso's municipal judges are elected and maintain private law practices, so they are available when police officers can find them, McNabb says.
He says the city favors the DIMS program, because it gets police officers back on the street quickly. "With DIMS, the booking process takes one or two hours," he says. "Without DIMS, it takes eight to 10 hours."
Critics of DIMS say when the magistrate process is bypassed, indigent defendants don't have a chance to request appointed counsel to represent them until long after the criminal proceedings against them have commenced.
Jerome Wesevich, litigation coordinator for Texas RioGrande Legal Aid in El Paso, says Abbott faces a critical decision on the issue.
"This is not just about El Paso," Wesevich says. "This is being pitched as a statewide model."
Wesevich is one of the attorneys who joined the American Civil Liberties Union of Texas in filing a brief with the OAG to oppose the use of peace officer bonds.
The Texas Task Force on Indigent Defense is studying the El Paso DIMS system and is considering recommending DIMS as a model program, according to an Oct. 21, 2005, letter that task force director James Bethke wrote to Esparza. The Legislature created the task force in 2001 as part of the Fair Defense Act, which is designed to improve the defense of indigents in criminal cases.
Bethke says in an interview that El Paso County is one of three counties that the Public Policy Research Institute (PPRI) at Texas A&M University is looking at for the task force. The other two counties that PPRI is studying are Harris and Bexar, he says.
Later in his letter to Esparza, Bethke expressed hope that as the benefits of peace officer bond programs are realized, more counties would follow El Paso's lead.
Esparza, a former assistant district attorney in Houston, says he patterned DIMS after the way Harris County processes cases.
Bill Delmore, chief of the Legal Services Bureau in the Harris County DA's Office, says the Harris County intake process is like the El Paso DIMS program in that both use a bond schedule to determine bail amounts.
But Delmore says DIMS differs from the Harris County process in an important way. Delmore says Harris County files a complaint charging an arrestee with an offense in the court that ultimately will hear the case. The court directs the clerk to set the bond according to the bail schedule, pending the arrestee's initial appearance before a magistrate. The magistrate can deviate up or down, depending on the circumstances of the case, he says.
Under the DIMS program, prosecutors don't immediately file complaints in court because the arrestees bonded out before seeing a magistrate, Delmore says.
Esparza says his prosecutors typically file a complaint the day after an arrest.
Williamson County District Attorney John Bradley says his county also patterned its filing system after Harris County's direct filing system.
When any arrest is made in Williamson County, Bradley says, the arresting officer books the arrestee in the jail. The officer must complete an affidavit to state the probable cause for the arrest if there is no warrant, Bradley says. Within 24 hours of the arrest, he says, a magistrate reviews the officer's affidavit to determine if there was probable cause, sets bond for the individual and reads him his rights.
"I would say over 90 percent of the counties in Texas take something like that as their approach," Bradley says. "Having a police officer make a bond decision, while authorized, is a fairly unusual process in Texas today. I'm not saying there is anything wrong with it."
But Abilene solo Randy Wilson, president of the Texas Criminal Defense Lawyers Association, says he has concerns about the DIMS bail practice.
"I've got a real problem with an ADA and a cop there and no neutral party," Wilson says.
Wilson says police and prosecutors are notorious for overcharging on an offense. It's not unheard of for a person who has been arrested following a fight to be charged with attempted murder, he says.
However, part of the dispute over the DIMS bail practice centers on who actually set the bonds.
Esparza maintains that the sheriff set the DIMS bonds prior to Nov. 5, 2005. "Every single one of those bonds is stamped approved by the sheriff," he says.
Samaniego's name stamp appears on a copy of an Aug. 8, 2003, bond that Esparza provided to Texas Lawyer.
But Samaniego is adamant that he never set bonds and was never requested to do so by Esparza or any other attorney for the county. "Everyone knew that the ADAs were setting the bonds," Samaniego says.
The sheriff isn't the only one who has taken that position. "I don't think there is any question that the ADAs set the bonds before Nov. 5, 2005," Wesevich says.
Anna Perez, an El Paso assistant county attorney who represents an assistant district attorney in one of the civil rights suits filed over DIMS, says the ADAs did not set the bonds and were merely "mouthpieces" in the bail-setting practice, meaning the ADAs merely relayed the bond amount according to the bond schedule and that the sheriff set the bond.
While Samaniego says he didn't participate in the DIMS bail practice, he approved the bond schedule used to determine the bail amounts, Perez contends. The sheriff's office essentially set the bond at the same time it accepted an arrestee's bond as reasonable and took the individual's money, she says.
According to a brief that Christine Pacheco, the chief legal adviser to the sheriff, filed for Samaniego on April 10 with the OAG, the sheriff did not sign the city-county interlocal agreement on DIMS, and no counsel representing the county ever advised him in writing that he would be responsible for setting bonds on warrantless arrests made under the DIMS program. [See the brief.]
Esparza says the DIMS bail practice could not continue as it had in the past after Samaniego said he was not setting the bonds, because ADAs don't have authority to set the bonds.
But Esparza contends El Paso has "taken giant steps backward," because the sheriff is requiring police officers to obtain a warrant after the fact from a magistrate for each warrantless arrest. The arrestee also must appear before the magistrate before being booked, Esparza says.
In the DIMS program, arrestees have bonds set when they are booked into the jail and can be released within a short time, but it now takes much longer, Esparza says.
Practical Impact
A number of provisions under the Texas Code of Criminal Procedure are at issue in the debate over DIMS.
In a brief filed March 30 with the OAG, the ACLU and other public interest groups argue that Code of Criminal Procedure Article 14.06 requires peace officers to present every person arrested without a warrant to a magistrate "without unnecessary delay, but not later than 48 hours after the person is arrested." According to the groups' brief, the magistrate before whom the arrestee appears must immediately perform the duties required in Article 15.17. At the Article 15.17 hearing, the magistrate determines whether there was probable cause for a warrantless arrest, informs the arrestee of the accusation against him and of his rights, including the right to retain counsel or to request an appointed counsel. The magistrate also sets bail.
The groups argue in their brief that one practical impact of the procedures under DIMS has been that people who qualify for pretrial release without paying a bail bond have been less likely to be released, because peace officers do not have authority to issue personal bonds.
"Consequently, under DIMS, arrestees who could not afford to post peace officer bonds were held in jail at county expense for several days after magistration before the magistrate would consider their request to reduce the peace officer bond or substitute a personal bond," the groups wrote in their brief.
Another problem, the groups contend, is the DIMS bail practice delays magistrates in advising arrestees of their rights.
Esparza argues in his Feb. 1 opinion request to the AG that it's lawful for municipal police officers to set reasonable bail for misdemeanor and felony arrestees pursuant to Code of Criminal Procedure Articles 17.05, 17.20 and 17.22 of the code.
Article 17.05 provides that a peace officer can take a bond from a defendant if authorized by Article 17.20 or Article 17.22.
Article 17.20 authorizes peace officer bonds in misdemeanor cases. But the ACLU and the other groups argue in their brief that the authorization under Article 17.20 is limited to situations in which no magistrate is available.
The groups argue further that Article 14.06 requires an arresting officer to take the person arrested before a magistrate "without further delay, but no later than 48 hours after the arrest." The authority to fix and take a pre-court bond in a misdemeanor case does not relieve the officer of the duty to take the arrestee before a magistrate, the groups contend.
"You can't construe laws where they're not consistent with each other," Wesevich says.
Esparza contends that Article 17.22 authorizes peace officers to set bond for felony arrestees. But the public interest groups argue that the statute empowers peace officers in limited circumstances to set bond for felony arrestees but not until a case is pending before a court. No case is pending in a court when an arrestee goes through the DIMS process.
But Esparza argues in his April 20 brief that Code of Criminal Procedure Article 17.033 further supports a conclusion that it's lawful for municipal police officers to set reasonable bail for misdemeanor and felony arrestees. As noted in Esparza's brief, Article 17.033 entitles a person who is arrested without a warrant and who is being held in jail to be released on a bond, without a magistrate determining probable cause. Under Article 17.033, a person in jail for a misdemeanor is entitled to release within 24 hours after an arrest on a bond of no greater than $5,000. If the offense is a felony, Article 17.033 provides that the person is entitled to release within 48 hours after being arrested, and the bond can't exceed $10,000.
Esparza further argues in his April 20 brief that Article 17.05 limits the persons authorized to set bail and that a peace officer is one of those persons.
In an interview, Esparza says the DIMS bail practice benefits the arrestee, who has an option for early release, and the county, which doesn't have to house the arrestee for as long. "The taxpayer gets a break because we're able to move more cases," he says.
Snoddy contends that one of his clients, Mark James Bittakis, spent 11 days in the El Paso County Jail after getting caught up in the DIMS program.
Bittakis alleges in his first amended complaint in Bittakis v. City of El Paso, filed Oct. 31, 2005, in the U.S. District Court in El Paso, that the DIMS program violated his civil rights and is unconstitutional. Defendants in the suit are Esparza, the city and county of El Paso, Assistant District Attorney Lisa Clausen and El Paso police officers Krandell Chew, Laura Canonizado, J. Nevarez and Raul Prieto.
Bittakis, a former U.S. Air Force pilot who works for a defense contractor on Elgin Air Force Base in Florida, alleges in his complaint that El Paso police arrested him on a drug charge at El Paso International Airport in January 2005, after a Transportation Security Administration investigator found a package containing "a white substance" in his luggage. As noted in the complaint, police determined in a field test that the substance was cocaine, although Bittakis repeatedly told them it was laundry detergent.
An assistant district attorney found probable cause for the arrest and set a $75,000 bond for Bittakis, and police booked him into the county jail, Bittakis alleges in the complaint. Although Bittakis was "herded" before a magistrate with a number of other inmates — the complaint doesn't state when — he was not given an opportunity to tell the magistrate that the substance was laundry detergent, Bittakis alleges.
A Texas Department of Public Safety lab determined the substance was not cocaine on March 4, 2005, according to the complaint.
Snoddy says Bittakis spent 11 days in jail, because he didn't know the telephone numbers of his family members and didn't know any lawyers in El Paso. Bittakis stored phone numbers in his cell phone, which police took away from him, Snoddy says.
Bittakis is seeking more than $1 million in compensatory damages and an unspecified amount of punitive damages against the defendants. He also is seeking a declaratory judgment that DIMS violates the Texas Constitution, U.S. Constitution and state law, because persons arrested without warrants are not taken before a neutral magistrate.
Jennifer Callan, an assistant city attorney who represents the city of El Paso, says the city is immune from Bittakis' suit. "We don't have any policy, practice or custom in place that violates his constitutional rights," Callan says.
Perez, who represents Clausen in the case, says Clausen also is protected by law from the suit because she did not do anything that was outside her scope of authority.
Jo Anne Bernal, an assistant county attorney, represents Esparza and El Paso County, but declines comment.
Esparza says the problems Bittakis alleges would have occurred whether authorities handled the case as a "regular route" case or as a DIMS case. The substance found in Bittakis' luggage tested positive for cocaine in a police field test, Esparza says. His office declined the case after the DPS lab determined the substance was not cocaine, he says.
El Paso criminal-defense solo Duane Baker, attorney for the three police officers named as defendants in Bittakis' suit, says his clients acted reasonably after the field test indicated Bittakis had cocaine in his luggage. It was Bittakis' choice not to request a court-appointed attorney or to contact an attorney to get him released from jail, he says.
Snoddy says Bittakis spent $30,000 trying to resolve the problems stemming from his arrest for possession of laundry detergent. But the purpose of the suit, he says, is to have DIMS declared unconstitutional.
El Paso criminal-defense solo Jim Darnell says he considers the controversy over DIMS a non-issue. Darnell says arrestees probably got out of jail quicker and with lower bonds under DIMS than they did before the program started.
Notes Darnell, "If this thing gets thrown out, what you'll wind up with is everybody sitting in jail longer."