Victims wait as courts face unprecedented COVID-19 delays

BySarah Rafique KTRK logo
Saturday, December 19, 2020
50,000 cases backlogged as COVID-19 delays Harris County court
A 13 Investigates analysis found more than 50,000 felony cases are waiting for trial in Harris County - a backlog that's grown by more than 15,000 cases during the pandemic.

HOUSTON, Texas (KTRK) -- An ABC13 Investigates analysis found more than 50,000 felonies are waiting for trial in the Houston area - a number that's grown by more than 15,000 cases during COVID-19 pandemic-related court shutdowns.

For crime victims, it means months of reliving the worst moments of their lives. A domestic abuse survivor recently told 13 Investigates her abuse started when her then-boyfriend beat and kicked her for hours and then "rubbed dog crap all over my face and body and wouldn't let me take a shower."

During the three years she was with the man, she said the physical abuse kept getting worse.

The woman finally hinted to sheriff's deputies at a community event that her boyfriend was abusing her, but she didn't share details.

She broke up with the man she thought she loved, but on July 4, 2019, she said she called 911 after he tried to break into her house.

The responding officer, Harris County Deputy Sandeep Dhaliwal, recognized her from that community event a year earlier. As she stood there in shorts and a T-shirt, the woman said the deputy pointed to the bruises all over her body from an incident just days before.

"That's when Sandeep showed up and said, you know, 'I don't want to come back here and take you out in a body bag. You need to do something now. Your life is worth more. I have a family and this is not how you treat someone that you love,'" said the victim, who 13 Investigates is not identifying since her case is pending. "I will always remember that."

She believes Deputy Dhaliwal saved her life.

The next day, her alleged abuser was charged with continuous family violence.

That was 17 months ago. Since then, her court case has been rescheduled 12 times. With every reset, she is left to face those terrifying moments, now recounted in diaries and her memory. During one incident, she said her alleged abuser drove her out of the city and told her she was going to die. He beat her for hours, as blood gushed from her head, causing a concussion, she recalled. He told her to dig her own grave. Another time, she said he put a gun in her mouth and told her to pull the trigger - that if she didn't, he could kill her and make it look like a suicide.

The woman's case does not appear any closer to a resolution than it was 17 months ago, when it was first filed. During that time, Dhaliwal was killed in the line of duty. It exposes possibly the biggest risk in this delay, that witnesses and their testimony will disappear as time goes on.

"Defense lawyers enjoy delay and it benefits those accused because witnesses disappear, they die, they forget," Harris County District Attorney Kim Ogg told 13 Investigates. "The longer we wait for a case to come to its ultimate conclusion through plea or trial the more exposure the public has."

The overall backlog of criminal cases in Harris County district courts sits at 47,224 pending cases as of November, including 4,602 family violence felonies, 800 murders, 3,931 serious assaults, more than 1,500 sex crimes against children and tens of thousands of other cases all waiting for a resolution.

The delay in trials doesn't just delay convictions in cases where the suspect is guilty. Robert Fickman, a longtime Harris County defense attorney who has worked with lawyers across Texas to study the impact of COVID-19, said it also delays dismissal and acquittals of individuals who have been wrongfully accused of crimes.

"In normal circumstance, delay can be good for the defense. But, our society forgets that the accused are presumed innocent. So while some of those 9,000 people in custody are guilty, they are not all guilty," Fickman said in a statement. "COVID delays, on top of Harvey delays, have kept some presumptively innocent people in jail for two years. This causes a lot of frustration for clients."

Cases were already backlogged due to Hurricane Harvey and have grown more than 35% during the pandemic.

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"We have officers telling us that they get laughed at on the way to the jail by the suspects, (like) 'Hey man, I'm just going to be out in a few hours and, you know, my case ain't going nowhere,'" Houston Police Department Chief Art Acevedo said.

Acevedo said if criminals know they can commit a crime without their case moving quickly through the court system, "there's really no incentive to move into a different direction."

"It's sad, it's scary and it makes me think that mine is never going to get resolved," the woman said.

'Frustrating for victims'

The domestic violence survivor 13 Investigates spoke with said after her alleged abuser was arrested, she learned he was a convicted felon. She couldn't understand why he was out on bond. Looking back, she also can't believe how long it is taking to get justice.

"I would have thought this would have been done a while ago," she said. "Every time (the case) gets reset, you're like, 'OK why?' I mean, what happens in these court hearings? You're reliving the trauma. You're reliving the things that happened to you that you're trying to move on and have a normal life. I don't understand why we can't keep on moving forward because it's just a backlog," she said.

The county projects more than 44,000 new felony cases to be filed this year - the highest number in more than a decade, Harris County District Courts administrator Clay Bowman told 13 Investigates in an email.

Cases are up 41% in Montgomery County, which has 3,564 cases. Liberty, Waller and Fort Bend counties also saw a 25% increase in cases during the COVID-19 crisis.

Although less than 1% of criminal cases in Harris County are tried in front of a jury, knowing they're taking place helps defendants and prosecutors move their other cases along as defendants accept plea bargains.

Before COVID-19, Harris County juries handled dozens of trials a month. During March through October, when in-person juries were suspended due to an emergency order by the Texas Supreme Court, only seven jury trials took place.

Harris County District Judge Kelli Johnson, of the 178th Criminal Court, presided over four of those trials.

"The backlog creates a very stark problem," Johnson said. "You cannot move it from point A to the end and so both sides are having to wait. They cannot wait for their day in court and so if they're wanting a trial by jury, they can't get it right now because we can only try so many cases."

Meanwhile, crime across the city is increasing so much that Governor Greg Abbott directed the Texas Department of Public Safety to help the Houston Police Department address a rise in road rage-related shootings across the area and support the Harris County Sheriff's Office with violent crime prevention.

Ogg said the "enormous" backlog of cases just adds to the growing number of criminal defendants whose alleged behavior goes unaddressed. Without a threat of finality to their cases, Ogg worries it is exacerbating the problem.

"It's frustrating for victims and dangerous for our community," Ogg said. "Every parent knows that if you have rules and fail to enforce them, that children will take advantage. I don't think anybody in the human race is much different than that. I think that the criminal element absolutely knows that there's a blockage, a stoppage and that they're taking full advantage of it and it's at the public's expense."

'Exhausting' pace as backlog grows'

The county has 22 district courts that handle criminal cases and despite the population growing to more than 4.7 million people, Johnson said there hasn't been a new district court created since 1985. The backlog was an issue before COVID-19, and it's only gotten worse.

"It just put everything in a funnel and just compacted it," Johnson said. "When it all hit, all of us criminal judges had just moved back into the criminal courthouse since the hurricane. We had not even hardly moved back in the building and so when COVID hit, we hit a brick wall."

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This fall, the county clerk announced jury selection would take place at the NRG arena, allowing more social distancing than a courtroom, which can only hold 21 people under current building capacity guidelines.

"With limited jury assembly operations starting up at NRG Arena in October 2020, our courts are a model of safe access to justice under the circumstances. But even these accommodations are laborious, expensive, and severely limiting in terms of the volume required to have a meaningful impact on the pending caseload," Bowman said.

Ogg said she is diverting as many non-violent offenders as possible to pre-trial programs or mental health or drug treatment centers. Still, she said the biggest threat to public safety is the backlog of cases involving violent crime.

She's advocating for judges to allow witnesses and defendants to testify remotely in serious cases to help speed up the pace for now while keeping everyone safe.

"We've got the ability for defendants to appear from jail. We've got the ability for witnesses to appear remotely. We can make that safe through the use of secured county facilities that can be routinely cleaned," Ogg said. "We can show the whole person when they testify and most importantly, there's precedence for this with child victims. In (those) cases judges do allow, at times, digital and remote testimony to protect the victim. And in this case, it's to protect everyone."

While there have been few jury trials, courts have been meeting mostly via Zoom video calls. Judges in most Harris County courts hold daily sessions to check in on the thousands of cases before them. Before COVID-19, those were all held in person and used as ways to move cases along. Now judges suggest the online sessions aren't always as productive.

Johnson, who has held the most jury trials during the pandemic, said Zoom does take away some of the connectivity and observations that the jury might have in person, saying it's more impactful to see the accused or hear a victim impact statement in-person. Still, she has allowed remote testimony in some instances. She reminded 13 Investigates that judges have to balance the necessity of moving cases with the rights of the accused to a fair trial and to confront witnesses.

Ogg said she will urge more judges to allow it more regularly.

"Whether it goes to trial, whether it gets dismissed, it's going to happen more readily if you have it set for trial and the feeling of that whole panel coming into the courtroom either may cause the State of Texas to dismiss that case, it may cause that person to rethink that plea offer. It may bring that case to go to a jury trial. All of that is more apparent when you have that there," Johnson said. "That's necessary, so it has been disheartening to me that we've not been able to do that as much."

Still, Fickman said there are some serious concerns around remote, online-only testimony.

He said an important aspect of cross-examining a witness is the ability to see their body language and facial expressions to read the witnesses verbal and non-verbal responses, as well as watching the judge and jury's reaction - all things he said isn't possible using video or audio alone.

"Zoom trials create the illusion of a fair trial, but they are not anything like a fair trial. I would refuse to participate in a zoom trial on any case of substance. I am not alone in that position," Fickman said.

Whenever courts fully open, the state will free up funds to put retired, or visiting judges, to work clearing cases in any spaces the county can find for them to work out of.

Johnson's cases have doubled since March. She has about 1,855 cases in her court right now, and that's on the lower end compared to other judges. Although she's trying to shrink the backlog by holding two dockets a day, where she sees multiple cases at one time, the increased pace is not sustainable.

"I'm only one person," Johnson said. "I can't keep it up. We're stopping on Jan. 4 because it is exhausting. You have to come in really early in the morning to do the hearings. You have to run back and forth when you're in trial. I mean, it's exhausting."

Fickman said one solution to the backlog is to do a better job communicating potential plea bargains with defense attorneys, rather than making an offer with no prior discussion.

"If the (District Attorney's Office) wants to move cases, it is not hard. They simply need to reach out to the defense bar and negotiate. I think establishing personal communications between the DA and defense counsel would help move cases," Fickman said. "...The client who is sitting in jail who receives a harsh offer has zero incentive to accept the offer. Not all cases merit harsh offers."

'Justice denied'

Acevedo said when there are tens of thousands of cases that aren't moving through the court system, it just adds onto the other challenges the community is facing and allows repeat offenders to avoid consequences, leaving everyone else to "pay the price."

"Justice delayed is justice denied," Acevedo said. "We have to have a system in place across the nation where accountability is certain, it is timely and it is fair and right now I'm not sure that we're meeting any of those parameters."

The victim we spoke with said she is relying on the court system to work quickly so she can move on with her life. In the 17 months since her accuser was charged, she said she's become stronger and more confident.

There are still days when something triggers her memory or she wakes up with night terrors. When she looks at photos from three years ago, she knows the battered woman in the picture is her, and yet she doesn't recognize her.

"That is not who I am anymore," she said.

Her case is set for another hearing next month, but prosecutors already told her to brace for it to be delayed again.

She doesn't know how many more months she'll have to keep looking at those photos and the stories of abuse saved in her diary as evidence before she can finally get justice.

GET HELP: If you need help getting out of a domestic violence situation, the Harris County Domestic Violence Coordinating Council has a full list of resources, including shelters, crisis centers and counseling, online. For immediate help, call the Houston Area Women's Center 24/7 hotline at 713-528-2121 or call AVDA at 713-224-9911. You can also click here to chat with an advocate online. If you are deaf or hard of hearing and need help, call 713-528-3625.

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