Breaking News- Judge Rosenthal Finally Dismisses Russell- Federal Litigation in Harris County Over Felony Defendants

 

The Honorable Lee H. Rosenthal, United States District Court Judge for the Southern District of Texas has dismissed Cause No. H-19-226; Russell v. Harris County; In the United States District Court for the Sourthern District of Texas.  The case was dismissed August 31, 2023.  This will bring to close the litigation seeking to "force" Harris County to simply release defendants in felony criminal case proceedings.

This litigation push started in Houston in another case called Odonnell v. Harris County.   In that case, Judge Rosenthal forced the county to adopt a simple release system for misdemeanor cases that has lead to an average of an 80% failure to appear rate over a two year period of time.

After their "success" in the Odonnell case, the same activists filed suit in Dallas County (the Daves case) seeking to extend the Odonnell ruling to felony cases as well.  Also, the activists filed suit in Galveston County (the Booth case) and they filed a new suit in Harris County regarding the felony courts (the Russell case).

This litigation began to turn against the plaintiffs and Judge Rosenthal's position as a result of the Daves case.  When Daves was appealed to the 5th Circuit Court of Appeals, the initial panel decision refused to extend the Odonnell ruling regarding misdemeanor judges to the district court judges.  The panel also noted that they would have come to a different conclusion on the misdemeanor judges than the conclusion of Judge Rosenthal but were bound by it since it had been affirmed by the 5th Circuit.  Thereafter, a motion for rehearing en banc was granted and the full 5th Circuit reconsidered the opinion and they reversed Judge Rosenthal's conclusion on the misdemeanor judges and held that any judge setting bail could not be sued under a claim under 42 U.S.C. Sec. 1983.  The en banc opinion held that any judge setting bail was a state actor for the purposes of setting bail and could not be sued in such a claim.  The 5th Circuit then remanded the case to the trial court in Dallas to make certain findings on the issues of whether SB 6 mooted the litigation and to reconsider the issue of whether the federal court should abstain under Younger since the Sheriff and other minor players were the only parties remaining.  The trial court made the findings and sent the case back to the 5th Circuit en banc for final disposition.  The trial court recommended that SB 6 did moot the litigation, but recommended that Younger abstention should not be granted.

The final opinion issued by the 5th Circuit en banc dismissed the Daves case saying that both Odonnell and Daves should never have been filed in federal court to begin with.  The court of appeals held that the federal court should have abstained.  Also, the court dismissed the case as moot.  Daves is currently pending on a pedtition for cert. before the United States Supreme Court.  The response by the county is due 9/1/2023.

In the Russell case, the plaintiffs sued the sheriff, the county and the district court judges.  After the 5th Circuit reversed Odonnell and said that the judges could not be sued in such litigation, Judge Rosenthal dismissed the district court judges.  However, the case has remained pending against the Sheriff and the County.

After the final opinion by the 5th Circuit in Daves, Judge Rosenthal ordered the remaining parties in Russell to brief the issue of mootness and abstention.

Today, Judge Rosenthal finally acknowledged the ruling in Daves.  In reading the Memorandum Opinion, it is evident that she does so reluctantly.  Judge Rosenthal appears to plead with the Supreme Court to step in.  She states in the memorandum, "Unless the United States Supreme Court steps in, this court is bound by Daves I and Daves II.  This case must be dismissed.  Final Judgment will be entered separately."

Judge Rosenthal argues strongly that the core ruling she made in Odonnell was upheld throughout all the different appeals (where her orders were reversed).  She also ignores the fact that the 5th Circuit stated directly in its last opinion that Odonnell should have never been filed in federal court.  It is hard to reconcile her argument that she was correct even though she kept getting it wrong and was reversed repeatedly and finally the appellate court went so far as to say the case should never have been filed.  Ouch!

Judge Rosenthal dismissed the case as moot.  She could not bring herself to address abstention.  Instead, she claimed "The court also, in what appears to be an advisory opinion given its conclusion that the case was moot, overruled Odonnell's holding on Younger abstention."

Judge Rosenthal just could not bring herself to follow that part of the opinion.  Since she dismissed the case as moot she did not address abstention.

If you would like to see Judge Rosental's Memorandum Opinion CLICK HERE.

If yuou would like to see Judge Rosental's Order of Dismissal CLICK HERE.

Commentary-  Judge Rosenthal's vision of the constitutional requirements mandated for bail which ties the hands of judges and prevents them from addressing gang members, career criminals and organized crime has been completely rejected by the appellate courts.  The untold damage that Judge Rosenthal has imposed on Harris County continues.  The reason for this is that although Judge Rosenthal has dismissed Russell, her vision of bail on misdemeanor courts remains and the county has shown no inclination to do anything about Odonnell even though it has been reversed by the court of appeals in the Daves case.  It will take years to undo the damage done to the Criminal Justice System by Judge Rosenthal's miopic view of criminals rights trumping the rights of victims which has jeopardized public safety.  It is good to see sanity return to this area.  It appears that unless the United States Supreme Court takes the case, this type of litigation will be improbable in the 5th Circuit going foward.  This would be a good thing.

Some might speculate that Judge Rosenthal intended these cases to create a kind of legacy for her that would stand for years to come.  The reality is that a legacy has been created, but it is much different than what was intended.  It is a legacy of opinions being reversed numerous times and a legacy of creating arguments and taking positions that were not only rejected by the appellate courts, but which received a strong rebuke.