Vacuum at the top

Earlier this month, after less than a year in office, Harris County District Attorney Mike Anderson died from cancer. He had been out of the public eye since May when he announced he was suffering from cancer and was taking a leave of absence.

In the meantime, former state district judge Belinda Hill, the First Assistant District Attorney, became acting DA. And, over the last four months there has been a complete vacuum on the Sixth Floor at 1201 Franklin.

Organizational chart for the Harris County District Attorney's Office

The theme of Mr. Anderson's campaign seemed to be "I'm not Pat." He advanced few ideas on how to fix the perceived problems in the DA's office. Apparently just being one of Johnny Holmes' "boys" would be enough to cure the office's ills.

Aside from his decision that we need to lock up more folks for possession of drugs in amounts so small that there isn't enough to conduct confirmatory tests by an outside lab, he set out to kill Pat Lykos' illegal DIVERT program.

But no one wanted to do away with pretrial diversion for DWI cases - since the program reduced the number of cases taken to trial (and the number of not guilty verdicts rendered by Harris County juries) - so he got rid of the element that made the program illegal.

Under Ms. Lykos' scheme a defendant wishing to enter the program had to enter a guilty plea in open court that could then be used against them should things go south down the road. That made the plan deferred adjudication under a different name - something that is barred by state law. So the Anderson administration did away with the plea and gave the program a new name.

But when questions arose regarding who was eligible and who wasn't and what defendants would be required to do as a condition of their "probation," there was no one around to answer them. No one was in charge. With Mr. Anderson out of the picture, no one wanted to step up and take any heat for unpopular decisions.

And so the program, which in reality is nothing but a contract entered into by a defendant and the DA's office, found itself in a tug-of-war with the judges, the prosecutors and defense attorneys. Judges decided who could apply. Judges decided whether or not to allow cases to sit on their dockets for a year while the defendant fulfilled the terms of the contract.

All because no one was willing to take charge. And let's be honest about it, no one believed that Mr. Anderson would be returning to his office. It wasn't a situation in which Ms. Hill was just keeping a seat warm. She was, for all intents and purposes, the unelected chief prosecutor in Harris County.

State law dictates that if an officeholder dies less than two years into his or her four-year term that a special election must be held at the time of the next general election. This means that Gov. Rick Perry will have to appoint someone to be the interim District Attorney until next November when the voters of Harris County will select someone to fill the rest of Mr. Anderson's term.

Rumors have it that Gov. Goodhair has shopped the position to various folks who have been prominent in the Harris County criminal (in)justice system but that no one has expressed any desire in serving as the temp. It looks like Belinda Hill will get the nod by default. But whatever's going to happen needs to happen fast because so long as no one's in charge confusion will continue to reign at  1201 Franklin.

RIP, DIVERT

On August 1, 2009, then-Harris County District Attorney Pat Lykos rolled out her new DWI program - DIVERT. The purpose of DIVERT was to convince first-time DWI offenders to accept an intensive probation with drug and alcohol counseling in exchange for dismissing their cases.

Of course there was one big problem - the program was an illegal attempt to get around the state's prohibition against deferred adjudication for drunk driving. In the pre-DIVERT days a defendant had a couple of choices on a drunk driving case: he could plead guilty, pay a fine and apply for an occupational license; or he could choose probation and keep his license. If a defendant stood his ground he knew there was a good chance his case would be dismissed or, if he went to trial and lost, that he'd be put on probation.

Ms. Lykos and her minions didn't like those scenarios so they dreamed up a plan in which a defendant would enter a guilty plea before the judge in exchange for being enrolled in a pre-trial intervention plan. If the defendant didn't like that option he could either choose 30 days in the county jail or a year on regular probation.

Eventually every judge but Bill Harmon in County Criminal Court at Law No. 2 went along with the scheme and suddenly no one was challenging stops and roadside exercises anymore. Fewer cases were dismissed and more folks were under the watchful eye of the county probation department.

But no more.

The incoming District Attorney, Mike Anderson, promised to do away with DIVERT upon taking office. He knew the program was illegal.

This week the DA's Office sent out e-mails to all attorneys who had clients signed up for drug and alcohol evaluations as part of their application for DIVERT announcing that no further screenings would be conducted. If you were already in a DIVERT program the DA's Office would honor its promise under Ms. Lykos but, if you were not already enrolled, forget about it.

I am glad the program is over. Prosecutors are going to have to make some difficult decisions on marginal cases involving first-time offenders once again. We will return to the days when we actually litigated traffic stops in DWI cases.

Of course there are casualties of this change. There are motorists who were charged with driving while intoxicated who were on the waiting list for their drug and alcohol screening so they could enroll in DIVERT. Through no fault of their own their appointments weren't scheduled until after January 1. They were promised they would be enrolled if they met the criteria, but now, because of the change in administration, that promise was yanked from them.

The program screwed defendants from the beginning and continues to screw them after it was tossed in that great ash bin of history. Good riddance, DIVERT.

You can call it what you will, but it's still illegal

You may remember Ruben Trejo, he's the former HPD sergeant who collided with a school bus on his way to work -- with an alcohol concentration of .176. On Friday, Mr. Trejo pleaded guilty to driving while intoxicated, paid a $500 fine and was placed into the Harris County District Attorney Office's pretrial intervention program (DIVERT).

Trejo, who has retired from the department, was allowed to the Harris County District Attorney's pretrial intervention program in which defendants plead guilty to DWI, but the verdict is deferred for a year. If the defendant completes all the requirements in the program, there is no conviction but the initial arrest remains on record.

What's wrong with this picture, you ask?

When a defendant opts for deferred adjudication in a criminal case, she enters a plea of guilty before the court, the judge then states that he finds enough evidence to find her guilty but that he will withhold a finding of guilt for a period of time (the length of the probation). Once the defendant completes her probation the criminal case will be dismissed and she will be eligible to file a petition for nondisclosure.

The problem is that deferred adjudication is not available for anyone charged with driving while intoxicated in Texas - even though it is available to a person charged with murder. The Houston Chronicle article points out, in plain English, why the DIVERT program is illegal.

Calling it pretrial intervention doesn't change that fact. Once the defendant enters a plea of guilty on a DWI case, there is nothing the judge can do (legally) other than record it as a conviction and sentence accordingly. As soon as the judge states she is deferring a finding of guilt, we're talking about deferred adjudication.

Diverting from the law

According to the Houston Chronicle, the Harris County DA's DIVERT program is the greatest thing since sliced bread when it comes to dealing with DWI. The article points out that more than 3,000 people have signed up for the program and that 1,431 people have completed it. There have also been 413 people who have been unsuccessful.

Of course the DA's office thinks the program is working great -- that's over 3,000 DWI cases that they didn't have to worry about trying. That's over 3,000 DWI cases in which they have a signed confession from the defendant and a guilty plea before a judge. That's over 3,000 under court supervision because of an allegation that someone was intoxicated while driving. That's over 3,000 cases in which the prosecutor doesn't have to worry about the legality of a stop, of the administration of roadside coordination exercises or the results of a breath or blood test.

We have no way of knowing in how many of those cases there were questions about the stop, the arrest or the testing of the driver. We have no way of knowing how many folks threw up their hands and chose not to fight their case because of a promise their case would be dismissed.

There is one judge at the Criminal (In)justice Center who sees the problem with DIVERT and is unwilling to turn a blind eye.

Critics, including a Houston judge, say the program is illegal because it circumvents 1980s legislation that prohibits deferred adjudication for DWI defendants. Deferred adjudication is a form of probation that allows a defendant to maintain a clean record. 

"Of course it's illegal," said criminal court-at-law Judge Bill Harmon. "But nobody cares." 

Harmon has presided over criminal proceedings for 22 years as a state district judge and four years in the misdemeanor courts. 

"The No. 1 thing that the Code of Criminal Procedure says that you can't get deferred adjudication for is driving while intoxicated," he said. "And court-ordered supervision after a plea of guilty is deferred adjudication."

Judge Harmon is right. If DIVERT were a true pretrial diversion program there would be no guilty plea before the court. A true pretrial diversion plan is an agreement between the District Attorney and a defendant that the defendant will do certain things in exchange for his case being dismissed. If the defendant messes up, the deal is off and the case proceeds as normal - with the possibility that the defendant admitted guilt in his application for pretrial diversion.

In DIVERT, the defendant is taken before the judge and enters a plea of guilty to the charges. The court then resets the case for about a year in advance and the person goes on "probation." Should there be a problem, the person is brought back before the court and given the choice of 30 days in jail or withdrawing the plea and re-entering a plea for probation. That's the problem with entering that guilty plea.

As I've stated before, DIVERT is nothing but deferred adjudication by another name and an attempt by the judges and prosecutors in Harris County to get around the state's ban on deferred adjudication for driving while intoxicated.

Diverted from justice

While I was sitting in a courtroom at the Harris County Criminal (In)justice Center the other morning I couldn't help but listen in on the proceedings at the bench.

It seems that a woman who was charged with driving while intoxicated chose to enter the DIVERT program. As part of her "probation" she had an ignition interlock device installed in her car. It appeared that there were a few incidents in which the device detected alcohol levels greater than .02 on her breath. Someone (the DA's office, the probation department, pretrial services?) wanted to terminate her participation in DIVERT.

The judge looked at the printouts and asked the woman a few questions before telling her attorney that he would allow her to withdraw her plea, enter a new plea and leave her on probation instead of sentencing her to 30 days in jail. The attorney asked the judge what he was supposed to do.

The attorney pointed out that the pretrial diversion agreement was between the defendant and the DA's office. The judge pointed out that she had entered a plea of guilty in exchange for 30 days in jail as part of her entranced into the program. Per the contract, the 30 days was probated.

The attorney said he didn't think the DIVERT program was even legal.

The judge told the attorney that he had raised concerns about the legality of the program on prior occasions and that he made no attempt to hide his concern about defendants entering pleas of guilty as part of the program.

Keep in mind that these were just allegations that she had consumed alcohol while on probation. There was nobody present to testify that the device was working properly on the days in question. There were no maintenance or calibration records. There was no expert to testify that the interlock device was reliable. There was no one to testify as how the little box even works. How does it clean itself after a blow? What is the scientific basis of the box? How does it calculate an alcohol concentration?

It's a little box with a tube.

But the defendant was boxed in. She had already plead guilty. She was, to put it bluntly, screwed.

I have written many times about my concerns with the DIVERT program - and those concerns have to do with the practice of the defendant entering a guilty plea before the court. As I have stated before, DIVERT is not a pretrial diversion, or intervention, program; DIVERT is deferred adjudication for first-time DWI offenders. The program is not legal and it is questionable whether anyone who participates will be able to expunge the arrest from their records.

One lump or two?

Oh, the hypocrisy of those limited government folks never ceases to amaze. As Grits for Breakfast reports, Teabaggers in Smith County (that would be northeast Texas, for those of y'all not in the know), have come out in favor of (yet another) referendum to build a new jail.

Nevermind the fact that voters in Smith County (hardly a liberal stronghold) have said "thanks, but no thanks" on four previous occasions. Nevermind the debt the construction project would impose on county coffers.  Nevermind the fact that it costs Smith County less to house a few inmates in other counties than it would to pay for a new jail. Nevermind that the majority of folks being housed in jails across this state are being held for nonviolent crimes.

In other words, nevermind the fact that the Teabaggers proclaim themselves to be champions of limited government. The same folks that tell the world we need less government, not more, have no compunction about lobbying for restrictions to be placed on the constitutional rights of those accused of criminal activity. The same folks that tell the world we need less government, not more, have no compunction about creating new crimes or harsher penalties because of one bad incident that occurred. The same folks that tell the world we need less government, not more, have no compunction about allowing the police to intrude more and more into the lives of ordinary citizens -- whether it be through "back-dooring" our e-mail or cell phone communications or fondling people boarding planes.

You want to reduce the cost of incarcerating our fellow citizens? How about personal bonds for folks charged with minor nonviolent offenses who have no prior criminal record? How about allowing police officers to issue tickets for possession of trace amounts of marijuana instead of hauling someone off to jail? How about more pretrial diversion programs for folks without criminal records? How about reducing bonds so that defendants don't have to sit around in jail until their cases are disposed of?

The problem with those ideas, though, is that they're logical.

A rose by any other name (is just as thorny)

Oh what tangled webs we weave...

Harris County District Attorney Pat Lykos came out with the DIVERT program for motorists accused of DWI who had never been in trouble with the law before. The idea behind the program was to move DWI cases off the courts' dockets by allowing citizens charged with DWI to enter into a program that could lead to their records being expunged if they were successful.

Of course we have no idea whether anyone's record will be expunged because DIVERT is more akin to deferred adjudication (which the Legislature doesn't allow for DWI's) than pretrial diversion.

Here's how Peggy Ficak of the Houston Chronicle's Austin Bureau describes the program:

In Harris County, District Attorney Pat Lykos' office allows one accused of drunken driving for the first time to plead guilty to the DWI offense and get a strict probated sentence in which he receives treatment, performs community service and abides by other conditions, including a lock on his auto ignition that tests for alcohol use before he can drive. If he completes the program successfully, the conviction can be wiped from a motorist's record. That also allows the offender to avoid the surcharge.

"You've got to have a carrot to motivate these people, and you've got to keep the costs down," said Judge Jean Spradling Hughes, of Harris County Criminal Court at Law No. 15. "It doesn't ruin the rest of their life" the way a DWI conviction can, she added. 

The program "allows one accused of drunken driving...to plead guilty to the DWI offense..." There's the problem in a nutshell. When a defendant accepts an offer of deferred adjudication to a criminal offense he or she either pleads guilty or no contest to the judge. The judge then states that there is sufficient evidence to find the defendant guilty but that the court will defer a finding of guilt pending the completion of a period of probation. Should the person complete the probation successfully, the charge is dismissed and the person may apply for an order of nondisclosure. Should the person not complete the probation successfully, the court will enter the conviction and sentence the defendant. In other words, deferred adjudication is a contract between the court and the accused.

Pretrial diversion, on the other hand, is an agreement between the prosecutor and the accused that the prosecutor will dismiss the case should the accused complete his term of probation, or whatever else was agreed upon in the contract. Should the accused fail to keep up his end of the bargain then the case will proceed as normal. Most importantly, no plea is entered before the court and, therefore, there is no finding that there is sufficient evidence to convict the accused.

Sometimes the cure can be worse than the ailment

The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy; to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. -- Texas Constitution, Art. II

Texas State Senator John Whitmire recognizes that there is something wrong with the manner in which Texas handles motorists accused of drunk driving. He understands that the surcharges imposed by the Department of Public Safety are onerous. He gets that motorists don't want a DWI conviction on their records because of the surcharges or because it may cost them their job.

What he doesn't get, apparently, is the separation of powers clause in the Texas Constitution. Sen. Whitmire is upset because different counties handle DWI cases differently. In Galveston County, it's not unusual for a motorist accused of drunk driving to plead guilty to obstruction of a highway. In Harris County, a person accused of DWI who has never been in trouble with the law before can enter the DIVERT program and (cross your fingers) have the matter expunged after completing their probation (more on this later). Get pulled over in Fort Bend County and if the case is not dismissed, plead guilty or go to trial.

Sen. Whitmire wants to put together a "working group" to figure out how to ensure that DWI's are handled the same across the state. No word on whether that working group will include defense attorneys or not.

My question, however, is who cares if Tom Green County treats first-time DWI's one way, Cameron County treats them another way and Jefferson County treats them a different way. No one questions why for so long capital crimes were handled one way in Harris County and, seemingly, another way across the rest of the Lone Star State. No one seems concerned that every county has a different policy toward pretrial diversion on nonviolent offenses such as shoplifting or possession of minor amounts of marijuana.

In Bexar County, District Attorney Susan Reed dealt with a backlog of cases by allowing first-time drunken-driving defendants who meet certain parameters to plead instead to a charge of "obstruction of a highway – intoxication." Defendants must undergo treatment and abide by conditions, including locks on their vehicles.

Reed said her goal was to get to offenders quickly and impose strict requirements because she believes that is the way to keep people from repeat drunken driving: "It's really got teeth in it for trying to stop the behavior." Besides avoiding the surcharge, she said, the absence of a formal DWI charge keeps people from possibly losing their jobs over the matter.

Whitmire voiced concern that allowing such a charge would hide a defendant's first drunken-driving offense, allowing him to avoid enhanced penalties if he offends again.

"We're losing a record of what that person's actual offense is," he said. -- Houston Chronicle (7/8/2010)

Allowing defendants to plead to a different charge? Really? C'mon, Senator, you are well aware that it happens every day in courthouses across this state and across the country. That's why it's called a plea bargain. Why the concern when it happens in a DWI case? The records will still indicate that the person was arrested and charged with driving while intoxicated regardless of what the person actually pleads to.

Here's an idea for you, Senator. Why not allow deferred adjudication for those accused of DWI? Even with a nondisclosure order, law enforcement (and prosecutors) will know about the prior arrest and can treat any subsequent offense accordingly. Allowing those accused of driving while intoxicated to clear their case without a conviction, without a license suspension and without the onerous DPS surcharges can move dockets -- if judicial economy is what we're really concerned about.

Law and order: Rockport

I was down in scenic Rockport yesterday handling an appeal of a case involving the holder of a CDL. Due to the infinite wisdom of our state legislators, if you hold a CDL in Texas, you cannot get that ticket dismissed in JP or municipal court through defensive driving or deferred disposition. However, should you appeal your plea or conviction to the county court, you can get the case dismissed through one of those avenues.

What's even more absurd it that in a county like Aransas County (Rockport is the county seat), the county attorney's office handles all misdemeanors -- including traffic cases. So I dealt the the county attorney on my client's ticket while it was filed in the JP court and, as we were unable to come to a mutual agreement, we pled no contest, posted an appeal bond and appealed the conviction to the county court. And who would I be negotiating with in County Court? None other than the county attorney.

To his credit, the Aransas County Attorney, Mr. Richard Bianchi, realizes this little "dog and pony" show the legislature has created is an incredible waste of time and money for the courts, defendants and attorneys. He is trying to find a way to steer CDL cases to the county court in the first place to avoid this absurdity. One way might be to offer pretrial diversions at the JP level, thus eliminating the need to appeal a plea.

We reached an agreement for my client to receive pretrial diversion and a dismissal. Then things got weird. We approached the judge and he informed my client that by entering into the agreement he was pleading guilty to the underlying charge but that the case would be dismissed if he complied with the terms of the diversion agreement.

Hmmm. Entering a plea with the judge deferring a finding of guilt until the terms of the agreement were satisfied. That's not pretrial diversion, that's a deferred. Of course since it's a Class C misdemeanor it doesn't matter -- but on a more serious offense it raises the question of whether the person is eligible for an expunction per the Texas Code of Criminal Procedure.

DIVERT = deferred adjudication

I overheard a little pow-wow with the prosecutor, defendant and defense counsel on a DWI case in Harris County Criminal Court at Law No. 3 on Friday. The judge asked the defendant for his plea in the case and the defendant responded "guilty."

The (visiting) judge then told the defendant he was being placed into the DIVERT program and that if he completed the terms of his probation the case would be dismissed.

Umm... not so fast.

As pointed out in a previous blog update ("New DWI program sounds more and more like deferred adjudication," September 14, 2009), the Texas Code of Criminal Procedure allows a judge to accept a plea of guilty or no contest but to defer a finding of guilt until such time as the defendant has completed the terms of a probation. Should the defendant complete the terms of the probation, the court will dismiss the charge -- should he fail to complete the terms of the probation, he would be found guilty and could face the maximum range of punishment allowed for that offense.

A person whose case is disposed of through deferred adjudication is not eligible to have that case expunged from his criminal history -- at best he is eligible for an order of nondisclosure which would prevent law enforcement agencies from releasing information on the case to anyone outside law enforcement or a handful of state and federal licensing agencies.

The Code of Criminal Procedure also states that deferred adjudication may not be offered on a DWI case.

I don't know who the defendant was and I don't know if what the judge did in his case will come back to bite him two or three years down the line, but this is further evidence that DIVERT is nothing but an attempt to skirt around the law.

New DWI program sounds more and more like deferred adjudication

So you still think Harris County's new DIVERT program for first-time DWI defendants is really a pretrial diversion and not deferred adjudication by another name? See this document released internally to Harris County prosecutors.

"After a DIVERT interview has occurred, if it is determined that a defendant is both eligible and an appropriate candidate for the program, an agreement will be tailored to the defendant with customized conditions of the program. If the defendant accepts the terms of the agreement, the defendant will be required to enter a plea of guilty to the offense of Driving While Intoxicated and agree to the punishment to be received in the event of a violation of the conditions of the program. As part of the agreement, the Defendant will waive the right to a jury trial, right to appeal from a finding of guilt and right to appeal from assessment of sentence."

Article 42.12, Sec. 5(a) of the Texas Code of Criminal Procedure states that a judge may accept a plea of guilty or no contest from a defendant and, if the judge feels it is in the best interest of both society and the defendant, the judge may defer a finding of guilt until the defendant has completed his probationary sentence. Sec. 5(c) states that if the defendant has not violated the terms of his probation and if the judge has not proceeded to adjudicate the defendant's guilt, the judge shall dismiss the the case against the defendant. This is the statutory definition of deferred adjudication.

Art. 42.12, Sec. 5(d) states that a judge may not grant deferred adjudication for the offense of driving while intoxicated.

Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure states that an expunction is not available to a person who was granted deferred adjudication under Article 42.12.

My reading of the DIVERT program procedures and the Code of Criminal Procedure leads me to believe that a person who completes the program will not be eligible for a expunction because that person entered a plea of guilty to DWI. Unfortunately we will not know until the first person files for an expunction at least three (3) years from now.

And if that isn't enough to make you wonder just what the hell is going on, there's this little gem from Page 2:

"If the defendant, after evaluation, chooses not to enter into the DIVERT program, the District Attorney agrees that any information directly or indirectly derived from the interviews or testing of the defendant during the DIVERT evaluation will not be used as evidence against the defendant in any criminal proceeding except for the purposes of impeachment, rebuttal, or cross-examination should the defendant testify or provide the court with information contrary to that provided in the evaluation process; or information learned from a source independent of the evaluation."

So there. DIVERT ain't about designing a treatment program for a person accused of DWI, it's about building a case against that person should they decide not to enter the program. If the purpose really were to treat people, the evaluations would be conducted by a provider not affiliated with Harris County so that thelimited physician-patient privilege afforded under Texas Rule of Evidence 509(b) would apply.

Cell phone users pose more danger than drunk drivers

A study from the Harvard Center for Risk Analysis claims that 6% of all motor vehicle accidents in the United States - some 636,000 a year - are caused by drivers talking on their cell phones while driving.

Dr. David Strayer of the University of Utah found that it is more dangerous for a driver to talk on his cell phone while driving than it is to talk to a front seat passenger. He said it didn't matter whether the driver was talking on a conventional phone or on a hands-free model -- because the degree of impairment was so great.

"When you're on a call, even if both hands are on the wheel, your head is in the call," said Janet Froetscher, president of the National Safety Council.

In a previous study, Dr. Strayer concluded that drivers talking on cell phones pose a greater hazard to other motorists than drunk drivers. His research indicated that drivers talking on cell phones exhibited slower responses than drivers dosed to a .08 alcohol concentration as measured by breath.

At any given time you are more likely to be on the road next to a driver talking on his cellphone than you are to a drunk driver. How safe do our drunk driving laws make you feel now? And if cell phone users are a greater hazard to the driving public, what is really behind the new "pretrial diversion" plan in Harris County?

Other voices on Harris County's new DWI policy

Here is some additional reading for y'all regarding the Harris County DA's new DIVERT program...

Mark Bennett, in his blog Defending People, questions what Pat Lykos and Company were thinking when they drew up this plan. Mark points out that the top brass at 1201 Franklin not only didn't consult with the defense bar, they didn't even consult with their own prosecutors.

As an aside, I'm not certain how I should feel about that reference to picking the "low-lying fruit" of the plan.

Murray Newman, who spends his spare time telling us about Life at the Harris County Criminal Justice Center, has a few questions for Assistant District Attorney Roger Bridgwater - some of which remain unanswered despite Mr. Bridgwater's meeting with defense attorneys and his appearance on "Reasonable Doubt."

Finally, Grits for Breakfast gives us an outsider's perspective of the new program and points out enough flaws for everyone to have one of their very own.

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?

Harris County defense bar's reaction to the new DWI diversion program

THE HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION’S STATEMENT REGARDING THE NEW DWI DIVERSION PROGRAM

The Harris County Criminal Lawyers Association stands united against the DWI Diversion program announced today by the District Attorney’s Office. What appears on the surface to be an act of benevolence is in fact an assault on the constitutional rights of all of the individuals accused of DWI.

This program will be forced on an unsuspecting and uninformed accused by way of an overly coercive plea bargain. Under the new program defendants will be offered the diversion program or alternatively 30 days in jail. Currently there are very few jail time offers to resolve a first time DWI. The action by the District Attorneys office is punitive and not in keeping with their duty to see that justice is done.

The diversion program forces defendants to confess and enter a plea of guilty that will result in jail time if they are unable to live up to the requirements of the program. The diversion program requires those participating to give up any and all protections provided by the US and Texas Constitution. This program is an affront to the adversary process and steps on the constitutional protections that all citizens enjoy.

HCCLA repeatedly asked to meet with the District Attorney about this program. Although the DA’s office arranged more than one meeting with the judges in private they refused to receive input from the defense bar. The entire defense bar was unethically excluded from this one-sided conversation.

Harris County rolls out new coercive DWI program

The Harris County District Attorney's Office informed members of the defense bar of the DA's new coercive DWI pretrial diversion policy this afternoon. Mr. Roger Bridgwater, formerly a state district court judge, laid out the details of the new "take it or leave it" policy.

Mr. Bridgwater stated that the impetus of the new policy was the high number of "alcohol-related" fatalities in Harris County and the alleged recidivism rate of defendants who chose jail time and a fine over probation. The DA's office is troubled by the fact that only 22% of those accused of driving while intoxicated are opting for probation when entering a guilty plea. In 2000, 48% of those pleading guilty to a DWI charge opted for jail time and 45% chose probation. By 2008, 65% of defendants were opting for jail time upon pleading guilty. Of course Mr. Bridgwater's analysis did not include looking at the basis for the stop, whether there was a breath or blood test, whether the case was "marginal" or any other facts about the individual cases.

Mr. Bridgwater made the claim that of the 40% of first time DWI offenders in 2004 who were placed on probation, only 11% were charged with a subsequent criminal act while of the 59% who chose jail time and a fine, 16% were later charged with another crime. There are a couple of problems with Mr. Bridgwater's analysis -- first, he did not provide the sampling size (how many drivers were actually arrested for DWI) and second, he did not provide the criteria by which he determined another crime had been committed. Are we talking about folks actually being found guilty of a subsequent offense or are we talking about innocent folks who were simply accused to committing a crime? I would argue that his statistics on this point are wholly without meaning.

Of the 5,616 people who plead guilty or who were convicted of DWI in 2004, 14% were charged with a subsequent criminal offense. Not convicted, mind you, just charged. Mr. Bridgwater seems to have forgotten that those accused of a criminal act are innocent unless proven guilty beyond all reasonable doubt. It's amazing how quickly that's forgotten once someone enters the 6th floor of the Harris County Criminal (In)justice Center.

As to the concern over "alcohol-related fatalities" in Harris County, something called the Houston-Harris County Office of Drug Policy released a report claiming that 30% of traffic fatalities in Harris County are "alcohol-related." These are the same meaningless numbers NHTSA tosses around when discussing the epidemic of drunk driving. No one has defined what "alcohol-related" means. Are we talking about accidents in which the person at fault was found to have been driving while intoxicated? Are we talking about accidents in which the person at fault was accused of driving while intoxicated? Are we talking about accidents in which the person at fault had consumed alcohol but was not impaired? Are we talking about accidents in which any person involved was intoxicated or under the influence of alcohol?

In Harris County, if a police officer detects the odor of an alcoholic beverage on a driver's breath, or if the driver admits to having consumed alcohol, that motorist is going to be arrested and taken to the county jail -- even though it is not against the law to consume an alcoholic beverage and then drive. It is only against the law if you have lost the normal use of your mental or physical faculties as a result of consuming alcohol.

Harris County D.A. Pat Lykos announced the new program in June at a speech at Rice University. Until this afternoon, no details about the program had been released through official channels. Apparently the hold up was coming up with an appropriate acronym for the program (after all, this is the government we're talking about). The new program is the DIVERT program - standing for Direct Intervention using Voluntary Education Restitution and Treatment. There is little about the program that is voluntary.

For those offenders deemed eligible for the program, their choice is to enter the DIVERT program, accept a jail term of 30 days, take an offer of probation (and a conviction) or to go to the judge without a recommendation from the state. For those not deemed eligible for the program, the choice is even starker -- 30 days in jail, probation or pleading guilty without a recommendation. So much for voluntary.

To be eligible, the accused must:

1. Be an adult first-time offender;
2. Be a resident of the State of Texas;
3. Be a US citizen or premanent resident alien;
4. Have no prior juvenile record;
5. Have no prior arrests for any felony or Class A or Class B misdemeanor; and
6. Be employed or in school.

A person may be excluded from the program as a result of:

1. Judicial veto (that means Judge Bill Harmon of County Criminal Court at Law No. 2);
2. A co-occuring disorder that would be detrimental to the person's ability to complete a probation (whatever that means);
3. Any pending criminal charge in any jurisdiction;
4. A co-occurring mental health condition that the Harris County probation department doesn't offer treatment; or
5. It being contrary to the best interest of the community.

Mr. Bridgwater envisions a defendant having 75 to 90 days to decide whether or not to apply for the program. Mr. Bridgwater apparently doesn't know how long it takes to get blood test results back. He apparently isn't aware that the number of blood tests is likely to increase as a result of legislation going into effect on September 1, 2009 that further restricts the Constitutional rights of those accused of driving while intoxicated. He apparently isn't aware of the general incompetence of the HPD crime lab.

This new program was rolled out to Harris County criminal judges last week in what would amount to an ex parte communication between the state and the judiciary. No one in the criminal bar was consulted while this program was being conceived and fleshed out. The impression I got from the "meeting" this afternoon was not that the DA's office was concerned about person who makes one mistake and is not eligible for deferred adjudication, but that the DA's office was upset that most DWI defendants are aware that probation is generally a bad deal. The DIVERT program is an attempt to coerce more people into supervision under the guise of pretrial diversion.

Another post will follow with the specifics of the DIVERT program.

Harris County pretrial diversion plan remains clouded in secrecy

Last week the head honchos over at the Harris County District Attorney's Office had a sit-down with the judges in the misdemeanor courts to explain how the DWI pretrial diversion program was supposed to work and to get input from the judges.

As I understand it, one of the 15 misdemeanor court judges made it clear that he would not sign off on any pretrial diversion in a DWI case in his court.

Interestingly enough, at no time did the D.A.'s office consult with defense attorneys to find out what questions and concerns the defense bar had with the sketchy proposal. If the plan hinges upon the signing of a contract, it stands to reason that there should be some give and take as to the terms. It appears as if those accused of driving while intoxicated will be presented with a "take it or leave it" offer -- otherwise known to law school students as a contract of adhesion.

As the thrust of the proposed plan (details to emerge tomorrow) seems to be to force defendants into the program by offering an unpalatable alternative (minimum 30 days in the county jail), one has to wonder who the beneficiary of the program is. Would the D.A.'s office be so secretive about the program if it were meant to benefit defendants?

I believe the Law of Unintended Consequences (otherwise known as "no good deed goes unpunished"), will dictate an increase (not a decrease) in the number of marginal cases that go to trial.

Setting the bar high

Yesterday, former U.S. Representative, and current Houston criminal defense attorney, Craig Washington took the state up on an offer of pretrial diversion on an aggravated assault case involving a deadly weapon.

On New Year's Day 2008, Mr. Washington fired three shots at a car after a confrontation in the parking lot of his Houston office. Mr. Washington said he feared for his safety while the teenagers claimed he fired at them without provocation.

Now if the Harris County District Attorney's Office is willing to offer a pretrial diversion on a aggravated assault case, what kind of misdemeanor case would not qualify a citizen accused for the program?

Post-script to Harris County's new DWI policy

After speaking with a source in the Harris County DA's office about the new DWI policy I was left wondering what would happen to those poor souls who were not eligible for pretrial diversion. Surely they would not be left to accept 30 days in the county jail or go to the judge without a recommendation.

According to my source, anyone who is deemed not eligible for pretrial diversion would receive the DA's "standard offer" for a DWI: a few days in jail, time served and a fine or 12-18 months probation.

My one remaining question is, with the new policy, will time served and a fine soon be a relic of the past?

New DWI policy leaves a lot to be desired

If rumors are to be believed, the new Harris County DWI policy going into effect on August 1, 2009, leaves a lot to be desired.

Apparently a citizen confronted with a first-time DWI will be offered pretrial diversion (if eligible) or 30 days in the county jail. The other option is to ask the judge for probation without a recommendation from the prosecutor.

For those unfortunate enough to pick up a second DWI, the choice will be 60-90 days in the county jail or asking the judge for probation without a recommendation from the prosecutor.

Said an unnamed source, "the plan is to force people into pretrial diversion."

The problem with such a "one size fits all" program is that one size doesn't fit all. There are no two identical drunk driving cases. The driving facts vary, the circumstances vary, the "results" of field sobriety exercises vary, breath test results or refusals vary. Such a program takes all discretion out of the hands of the prosecutors and reduces them to mere functionaries.

We've seen this scenario before - they were called the Federal Sentencing Guidelines and they hamstrung judges until the Booker decision.