Bexar County Jail detained a man for 5 extra months. There's no clear answer to why
On Jan. 10, 2019, Cody Demond Flenoury, 32, tried to steal three tins of Sunny Sea sardines and a package of Mrs. Freshly’s Delicious Deals Honey Buns.
But instead of successfully shoplifting, Flenoury punched an employee attempting to stop him. He was arrested, tried, jailed and then lost in the system.
He served more than a year in various locked down treatment and detention facilities before his final sentencing of “time served” on Feb. 3 of this year.
The court order for his release was sent to his jailers, but nothing happened.
Despite the fact that he should have been released and had accrued 563 days inside — Flenoury wasn’t released that day, nor the next.
Ultimately he served more than five months longer than he should have in Bexar County Adult Detention, according to court records. He was discovered in a review of cases by the Sheriff’s office this summer, according to people with knowledge of the case.
“The incident regarding inmate Flenoury is currently under review,” wrote Adelina Simpson, a spokesperson for the Sheriff’s office in a statement to TPR. “The civilian clerk who handled the documents for inmate Flenoury is no longer employed with the Bexar County Sheriff’s Office.”
The statement raises many questions about how an inmate could be unjustly held for five months, but no interview with Bexar County Sheriff Javier Salazar or a jail representative was provided despite TPR's repeated requests over two weeks.
After this story ran, the Bexar County Sheriff's office announced it was hiring an outside consulting firm Detain Inc, to give a "top to bottom" assessment on what it was doing in the jail space. Salazar acknowledged the staff had made a mistake and that possibly technological upgrades were necessary at the jail, which he described as possibly "relying too much on paper systems."
"I don't want to leave it to where one employee has a bad day and you know, misses a piece of paper, and then all of a sudden, somebody is incarcerated for five months, I don't want us to get to that point, we need redundant systems," he said.
It’s unclear if Flenoury was an anomaly or if others have been left in jail who should be out during a time where being confined is marked by danger from a pandemic. Salazar said jail administrators had begun "scrubbing" lists of inmates each day to ensure those who shouldn't be in there, aren't.
Flenoury — a young, homeless, mentally ill and addicted man — slipped through the cracks of a county jail system that is known by inmates, defense attorneys and judges to be stretched to its limits and bogged down in its own bureaucracy.
“Yeah, it's horrible. It's absolutely horrible,” said Michele Deitch, a distinguished senior lecturer of criminal justice policy at the University of Texas, describing Flenoury’s unjust incarceration.
“It's awful for that individual who should have been released when he was ordered to be released. And it is a really dramatic problem for the agency, because of the impact if that is not just an isolated individual circumstance. If it is something that actually is more widespread, it's going to be having a tremendous impact on the size of the population,” she said.
Restrictions from the governor's office and legislature on who could be released without a cash bail have kept many people behind bars who would have otherwise been out ahead of their trial. Salazar has often spoken out about it to the public and privately complained to other elected officials.
“COVID has wreaked havoc on law enforcement and detention facilities,” said Bexar County Administrative Judge Ron Rangel.
Rangel said the jails are carrying water for Texas prisons who stopped taking people to keep their own numbers low, as well as programs intended to keep people out of jail that have reduced their numbers to remain safe or closed altogether.
“Looking at it in a holistic manner, jail’s are the bottleneck,” said Rangel.
The overcrowding caused by the pandemic, executive policies and legislative changes have also led to overcrowding and precipitated high infection rates for inmates and staff. The crowds make it even harder for jails to contain the disease.
“It becomes an extremely dangerous environment if you can't separate people. And that's one reason we have to keep those numbers well below 85%,” said Deitch.
Bexar County Jail had 4,512 people in it Oct. 1. That’s 88% full.
Releasing inmates in a timely manner not only benefits the individuals, but the overcrowded and understaffed jail system as well.
The jail is struggling to release those people arrested before trial in a timely fashion as well as to process court orders to release people who have served their time, according to court documents and interviews with several defense attorneys, judges and experts. Some interviewed said the problems started before the pandemic.
“I know they're dealing with a whole bunch of issues. They have to deal with COVID and quarantines and this and that. It's not an easy job. But for the life of me, I can't see why it takes so long on some of this stuff,” said John Rightmyer, a San Antonio defense lawyer.
Another attorney, Louis Martinez, agreed, saying things take exponentially longer than they used to just a couple years ago. When getting clients released pre-trial he said a process that at times would take as much as 36 hours, now takes three to five days.
“You expect when you get to deal with the government, that there's going to be some red tape, there's going to be some bureaucracy,” said Martinez, who has served the area for 19 years. “But the delay in getting people released right now is longer than I've ever seen it before.”
Martinez recently brokered a deal for a man who was accused of family violence charges while in a treatment center for another charge. Martinez advised him to plead guilty so he could get out on probation.
Despite having a court order to release the man, the process dragged on. He was forced to call each day. Initially, he was given no explanation. It became clear that the jail believed the court order was not enough and that they also needed a note from the substance abuse facility his client had been in.
According to Martinez, once the treatment facility had released his client to the Bexar County Jail, it felt its job was done and did not believe it needed to send additional paperwork.
Regardless of having an order from a judge, and despite calling everyday, Martinez said it took two weeks to get his client out.
“These are basic human rights issues. If you hold somebody for an extra two weeks, how do you quantify the impact you've had on this person's life?” he said.
The Bexar County Jail said the inconsistencies in the case of Martinez's client were on the state’s side, not theirs.
“It appears that the state department may have had inconsistencies on their end regarding the documents for inmate,” said a spokesperson for BCSO. “However, the day that we received the documentation to lift the hold from the state department, was the same day (Martinez’s client) was released from our custody.”
Martinez wondered aloud what would have happened if his client hadn’t had a lawyer.
Colin Hobbs, another defense attorney in San Antonio, said the only way to know if your client got out when he or she was supposed to was “to continuously call the jail and keep track of it.”
This is a big ask for court-appointed lawyers representing indigent defendants — or people who can’t afford a private attorney. These attorneys are often in court all day, have heavier case loads, and, he said, don’t get paid much.
“Constantly calling the jail to check on release is a lot to ask especially when the court isn’t going to be paying you for that time because the case is already closed,” Hobbs said.
An estimated 80% of people arrested in Bexar County qualify for indigent defense, according to the county administrative judge.
If the process requires prodding from a lawyer — or for those people without someone on the outside to do it — the likelihood of negative outcomes increases.
“I've had cases where directives were sent over. And the next day, two days later, sometimes three days later, we're calling the sheriff's office and asking, 'you know, is this in the system yet? No, like, No, we can't find that directive, or we don't have that from the court,' ” Martinez said.
When he checks with court staff, he hears the opposite.
“There doesn't seem to be a sense of urgency and getting people together and processing, get them out. Just kind of happens when it happens,” Martinez said of jail staff.
If there is any time to feel urgency, he said, it should be when you’re getting them out — not only because it is their right but also because the county is liable for their treatment. And a jail is a dangerous place to be on its best day. With COVID-19, it is even worse.
According to the Equal Justice Initiative, the incarcerated are five times more likely to be infected with the disease. Another study said the death rate was higher too.
“It spreads like wildfire inside,” said Deitch, who published a study of COVID deaths in Texas custody earlier this year.
“And also you're dealing with populations that are extremely vulnerable in terms of their medical conditions,” she said.
It is unclear if Flenoury escaped COVID while in the Bexar County Jail. He, like many others inside the detention center, lacked funds, legal savviness and the empathy or attention of those on the outside.
“I ain’t giving you shit,” Flenoury yelled at the 23-year-old assistant manager of Family Dollar when he was confronted about stealing the sardines back in 2019. He then punched the manager in the face, according to police records.
When he was given probation, he violated it by not showing up for his PO and drug testing one month. He was arrested for criminal trespass another time.
He got kicked out of a residential treatment facility for his mental illness and drug abuse, where he had been interred instead of jail.
“Concerns for the safety of staff and peers exist at this time due to level of aggression displayed by the defendant,” wrote a community supervision officer on Dec. 10, 2020, in court documents.
All of this is to say the system offered some ways of avoiding jail time, and Flenoury didn’t take them. Court documents paint a picture of a young, troubled man.
While justice isn’t a popularity contest, it is not hard to imagine the man might not have endeared himself to his lawyers — some of whom may not have spoken to him much.
Flenoury’s court records show that throughout the course of his more than two years of adjudication for the crime, he had three court-appointed lawyers. None of the lawyers responded to TPR’s messages.
So the impact that those extra five months inside had on Flenoury remain a mystery. TPR was not able to locate him.
By not releasing him, Bexar County may be liable for his unjust imprisonment.
“I would assume that there would be liability for, for the sheriff for holding this individual for the and ultimately for the county commissioners who fund the jail and would have to pay any judgment,” said Deitch.
Two weeks after getting out, Flenoury was arrested again for criminal trespass, likely for sleeping on private property. His lawyer in this matter — who didn’t wish to be named — said he had no way to get in touch with the houseless man and had only spoken to him briefly before sentencing. He suggested without irony that the best way to find him would be to wait for him to be arrested again.
If Flenoury is arrested again, and his lawyer hears his story, the case against Bexar County may be found and filed. And while the estimated cost of his overstay was around $9,000, a civil award will undoubtedly be more.
As for the rest of the 4,500 people in Bexar County Jail, it isn’t clear what impact the delays will have. Each day someone is inside it costs taxpayers for the room and the inmate another day before they can rebuild their lives.
“There's nobody in any station in life who is immune from being a victim of circumstance or having a bad day and winding up in jail,” said Martinez. “This touches enough people from enough walks of life, that I think it's something we all need to be concerned about.”
Update: This story was updated to reflect comments made by Bexar County Sheriff Javier Salazar after it published.