Bail, Pressure and Plea Deals: The Backdrop to Todd Mensing’s Capital Trial Win

Before State of Texas v. Johnson ever reached a jury, the defendant had already spent close to a year in the Harris County jail, unable to post bond on a capital murder charge. Texas law allows bail to be denied outright in capital cases. Even when it is set, the amount often runs beyond what most defendants can pay. That reality shaped the case Todd Mensing, a board-certified Houston trial attorney with AZA Law, ultimately took to trial on a pro bono basis alongside criminal defense lawyer Christian Capitaine.

Research on Harris County’s separate misdemeanor bail reforms, tied to the O’Donnell consent decree, offers context for why pretrial detention matters beyond the jail time itself. The Prison Policy Initiative found that after the county reduced its pretrial misdemeanor detention rate from 47 percent in 2015 to 22 percent in 2021, the conviction rate on those cases dropped 54 percent, while dismissals and acquittals rose from 31 percent to 68 percent. Detention itself, the data suggest, pushes defendants toward plea deals on cases that might otherwise end differently.

Capital cases sit outside that reform, since bail can be denied entirely, but the underlying pressure is similar, and more severe given the stakes. A defendant facing a capital charge and a year in county jail has every practical incentive to accept a plea to a lesser offense if one is offered. In the Johnson case, Mensing’s client did not testify, and the trial ended with a jury deadlocked eight to five toward acquittal. That triggered a mistrial and the district attorney’s decision not to retry.

That result broke a 75-0 run for the Harris County District Attorney’s Office in capital murder trials. It is a rare instance in which the pressure to plead did not determine the outcome of a capital case.