More questions and concerns about the DIVERT program

While I support the concept of pretrial diversion in DWI cases - the DIVERT plan unveiled by the Harris County District Attorney's Office yesterday is an unworkable, coercive and (possibly) illegal plan that may do more harm than good.

The problems begin with the eligibility requirements for the program.

A DWI defendant must sign a contract with the District Attorney's Office in which he or she swears that they are a citizen of the United States or a permanent resident alien. The DA's position is that those who are here without the explicit permission of los federales are breaking the law just being here. While that view might win the votes of the Know-nothings and Minutemen, the simple fact is it is not illegal to be here without the permission of los federales. It is illegal to possess forged papers. it is illegal to employ a non-citizen here without permission. The person may have entered the country illegally - but that is not an on-going criminal act. Equal protection applies to everyone in the United States. There is no provision in the Bill of Rights that limits its protections to citizens or permanent resident aliens.

The program is only available to first offenders. The guidelines state that no one with a prior Class A or B misdemeanor or any felony arrest, conviction, diversion, intervention or deferral is welcome. In the contract, the applicant must swear that he has "never been arrested for an offense punishable by confinement in a county jail, or state penitentiary, other than in this case." The applicant must also swear that he has never had a criminal record history expunged by any court.

The problem? Article 55.04 of the Texas Code of Criminal Procedure states that:

A person who acquires knowledge of any arrest while an officer or employee of the state or any agency or other entity of the state or any political subdivision of the state and whwo knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates or otherwise uses the records or files.

A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.

An offense under this article is a Class B misdemeanor.

It would seem to be a clear violation of the law for a prosecutor to use expunged information in determining whether a person was eligible for the program.

A person whose criminal history record has been expunged is able, according to the law, to swear under oath that he or she was never arrested, charged or tried for that particular criminal offense (with the exception that if asked in a criminal proceeding, the person may only state that the matter was expunged). The purpose of the expunction, presumably, is to place the person back in the position they would have been in had the wrongful arrest never taken place.

The requirement also makes a mockery of the most precious presumption in the criminal justice system -- that the accused is innocent unless proven guilty beyond all reasonable doubt.

The applicant is also required to pony up the following:

1. An application fee of $200;
2. Restitution (if any);
3. A monthly supervision fee of $60;
4. District Attorney's Office fee of $160;
5. The cost of installing an interlock device (with a camera) in their automobile (a minimum of $75 a month);
6. The cost of an in-home alcohol monitoring device (if required);
7. All costs for counseling, treatment and education;
8. All fees for urinalysis;
9. The cost of an identification card;
10. The cost of a literacy assessment; and
11. Fees for appointed counsel (if unrepresented).

These fees could easily top $3,000.

The applicant will be required to sign a "judicial confession" that will be filed with the clerk of the court during the pendency of the diversion. The applicant must also waive his rights to a trial by jury in the case. In essence, the applicant will be entering a plea of guilty to the court and the court will "take it under advisement" during the term of the diversion contract. At the end of the contractual term, the state will file a motion to dismiss the case.

The differences between the DIVERT program and deferred adjudication are very slight and ministerial. On a deferred adjudication, the defendant enters a plea of guilty or no contest. The judge then states that he finds sufficient evidence of the defendant's guilt but he will defer a finding until such time as the defendant completes or violates the terms of his probation. In the DIVERT program the "plea" is filed with the court but, presumably, not presented to the judge who agrees to reset the case. Either way there is a record of a plea other than not guilty.

One of the more troubling provisions of the contract is the lowering of the state's burden of proof to terminate the agreement. Per the terms of the agreement, the state must only show the court probable cause to believe the applicant violated the terms of the agreement. Keep in mind that probable cause is a very low standard of proof -- it's what the police have to have in order to place an individual under arrest.

Should the court find probable cause to believe a violation occurred, the court would then proceed to adjudicate guilt (based on the applicant's confession contained in the agreement) and assess punishment. Nevermind that in a motion to revoke probation or to adjudicate guilt, the state must prove the alleged violation by a preponderance of the evidence.

The agreement goes on to state that upon completion of the DIVERT program, the defendant may not file a motion to expunge his criminal records (pertaining to the DWI arrest) for a period of two years and that the Harris County District Attorney's Office would not oppose such a motion. The agreement, however, provides no guarantee that any other law enforcement agency would not oppose an expungement. The entire thrust of the program is (supposedly) to give first-time DWI defendants a second chance but the DA's office can't even guarantee that outcome.

Why the disclaimer? Is it because the Harris County DA's Office didn't consult with the Texas Department of Public Safety before implementing this program? Is it because they didn't consult with anyone in the state legislature to make sure the program is not an illegal attempt to make an end run around the prohibition of deferred adjudication for driving while intoxicated offenses?

There are numerous other questions about and problems with the DIVERT program. One concern is the participation of the judges. Last week representatives from the Harris County District Attorney's Office met with Harris County criminal judges to "discuss" the DIVERT program. As part of the program, the minimum offer for a first-time DWI will be 30 days in the county jail and a $750 fine. My question is if a person accused of driving while intoxicated chooses to plead to the court without an agreed recommendation, will that judge consider the entire range of punishment as he is required to do by law? Would the judge consider a sentence of less than 30 days? Would that judge consider a fine less than $750?

In other words, was this ex parte meeting designed to "get the judges on board" or was it just a presentation of the program?