San Mateo County courts are violating bail laws, complaint alleges

Being unable to pay bail or being unnecessarily detained before a case is heard deeply impacts defendants and their families and they can lose job opportunities, housing and even custody of their children as a result, organizers said. 

“It’s such a sterile and bureaucratic process that affects so many of our lives. The way the court is structured, it's designed to be sterile,” Participatory Defense Organizer Charisse Domingo said. “The intent of our complaint is to really break open the courts and be like, ‘your decision you make within two minutes every day is causing havoc.’” 

The court has no comment on the complaint, Communications Officer Dan Radovich said. 

Judicial officers like judges and commissioners in San Mateo County often set bail without finding out a defendants’ financial status or making a finding that pretrial detention was necessary to ensure community safety, according to the complaint. 

It cited 26 such instances from 2022-24 from three separate San Mateo County court commissioners which DeBug says violates Humphrey, the 2021 Supreme Court ruling, including one example when a defendant’s bail was set at $15,000 after the commissioner learned he would be unable to afford it and prosecution agreed to his release.  

The complaint also cites the findings of independent court watchers from Stanford University, who found 36 instances of alleged misconduct from five commissioners over a month-long period in 2023. 

Proper enforcement of the Humphrey ruling is so key because the individuals undergoing arraignment are still supposed to be presumed innocent under the law, said Rose Mishaan, a lawyer representing Gerald Kowalczyk —  a man allegedly unlawfully detained pretrial in San Mateo County. 

“Before Humphrey, there was such a practice of imposing bail amounts that people who were indigent couldn't afford. It was so standard,” Mishaan said. “It’s forced courts to think about when they are imposing pretrial detention, and under what circumstances.” 

The Kowalczyk case, which predates DeBug’s complaint, is being appealed to the California Supreme Court to address questions of when and whether courts could ever set unaffordable money bail, according to its opening brief. 

In 2021, Kowalczyk — an unhoused man with a criminal record — was detained on a bail of $75,000, which he couldn’t pay, for trying to buy a hamburger with found credit cards. According to the case’s opening brief, after asking for a bail reduction, he was ordered to be held without bail. 

“It came out of that frustration with courts not following Humphrey,” Mishaan said. “The goal is for the court to follow the California Constitution.” 

To address concerns that San Mateo County courts aren’t following the law, DeBug and the Civil Rights Corps are asking for a full review of detention decisions of anyone incarcerated pretrial and removal of any judicial officer who violated the law from handling further arraignment hearings, and further education regarding bail decisions, among other requests. 

Five individuals have died while awaiting trial in San Mateo jails since January 2023, making the situation one of dire importance, DeBug organizers emphasized. 

“For us, we’re exposing this because of the dire consequences this has on families whose loved ones are sitting in jail. It’s really an issue of death and life,” Participatory Defense Organizer Victoria Sarait Escorza said. “It sort of calls for accountability on judges.” 

Another piece of their complaint argued that ineffective Private Defender Program lawyers were represented to defend indigent clients, suggesting that evidence points to these attorneys failing to make the competent arguments necessary for pretrial release or advocate for affordable bail.

This drew ire from PDP lawyers, The Mercury News reported, finding that private text messages between attorneys referred to DeBug members as “f—ers,” “scum bags,” and “not to be trusted.”

That revelation is frustrating, organizers said, raising questions about how attorneys feel about their clients and signifying there’s far more work to be done. 

“What's so wrong about what we're doing, trying to help people have to have access to better?” Participatory Defense Organizer Lourdes Best said. “Why should we be called a scumbag or of no portfolio? Is that what people feel about our communities?” 

Ultimately, courts need to be aware of just how detrimental pretrial detention — either enforced intentionally or by default, if defendants cannot afford bail — is on individuals, Participatory Defense Organizer Jamilah Rosales-Webb said. 

“When people are held in jail, pretrial, they're losing a lot,” she said. “They’re losing jobs, they’re scrambling for money, if they need to pay bail, they’re losing their housing, some are losing custody of their children, some are losing their spots in rehabilitation centers.”