Will the real Pat Lykos stand up?

Who knew Harris County District Attorney Pat Lykos was down with Twitter. Here are a sampling of her tweets (and no, Mr. Anonymous, I had nothing to do with this)...

PatLykos

1. 1. How many prosecutors does it take to handle a felony court? Not as many as these bums want you to believe.about 1 hour ago from web
   2. Going to send Hannah to make the rounds and make sure everybody is working hard. These bastards will slack off if you let them.about 2 hours ago from web
   3. What's the matter, asshole, you don't like dogs? http://bit.ly/vxHTGabout 2 hours ago from web
   4. Grabbing a smoke before going back to building the best fucking DA's Office in the USA.about 3 hours ago from web

Sending a bad message

I saw a very disturbing sign in the window of a convenience store last night on my way back to the office. It was advertising a drink called Sipping Syrup. For those of you not familiar with the syrup phenomenon, I'm not talking about the yummy goo we pour on top of our pancakes.

Syrup, on the street, refers to a mixture of codeine (usually from cough syrup) mixed with a carbonated drink, such as Sprite or 7-up. The drink was popularized by Houston's own DJ Screw who produced mix tapes that slowed the music down to something less than a crawl.

The list of rappers and DJ's who have died as a result of sipping syrup include the afore-mentioned DJ Screw, Pimp C and Big Moe (all from the Houston area).

Just what we need, a beverage designed to look like an illegal narcotic. A massive disservice to our children - and all for a buck.

My bad

Contrary to the information relayed to me last night, Judge Don Jackson has NOT resigned. I offer my humblest apologies to anyone who was harmed, hurt or offended by the piece. In no way was it my intention to imply that Judge Jackson had done anything wrong and, again, I apologize to anyone who was offended.

As an aside, when asked, a courtroom official told me it was a "big mess."

Harris County criminal judge resigns out of the blue

The rumor mill is a-swirling down at 1201 Franklin with the sudden resignation of the Hon. Donald Jackson, the presiding judge of Harris County Criminal Court at Law No. 3. As no one has yet to confirm the reason for Judge Jackson's resignation, I have prepared a generic statement to explain the goings-on on the 8th Floor of the Harris County Criminal (In)justice Center.

"This is a very difficult time for my family and I right now. I would like to apologize to my family, my colleagues, my supporters and the citizens of Harris County for _______________ and any embarassment it may have caused. At this time I feel it best for my family and this court that I resign. I also want to thank all the people who have supported me through the years - without your hard work and dedication I never would have had the opportunity to serve the citizens of Harris County."

If there are any other elected officials in Harris County needing to make a quick exit from public life, please feel free to cut-and-paste this statement as necessary.

Court revives appeal filed after deadline

The Fifth Circuit Court of Appeals reversed itself yesterday and revived a death row inmate's appeal that had been denied for being filed one day late.

Keith Thurmond's attorney, Mr. Jerome Godinich (yes, that Jerome Godinich), blamed his late filing on the court's broken fax machine, a claim at which prosecutors scoffed. Ironically enough, one of Mr. Godinich's previous clients was executed when his appeal was denied because... drum roll, please... the appeal was filed one day late because of... here it comes... a broken fax machine.

When asked, Mr. Thurmond said he hadn't spoken with his attorney in months and figured the appeal was hopeless.

The Chronicle noted that Mr. Godinich was "one of the county's busiest court-appointed attorneys."

Harris County to ship inmates to other Texas counties

The Houston Chronicle reported today that Harris County is on the verge of entering into an agreement with four other counties to house Harris County inmates who have been convicted and are waiting transfer to the Texas Department of Criminal Justice and inmates who were convicted of state jail felonies but sentenced to misdemeanor time.

The Harris County Jail complex was built to house 9,400 inmates - the current jail population is a staggering 11,251 (as of August 10, 2009).

Currently the county is paying Louisiana $38 per person/per day to house 1,046 inmates who are serving misdemeanor sentences on state jail convictions. That figure doesn not include transportation or medical care expenses.

The contracts with Bowie, Dickens, Jefferson and Newton Counties calls for a payment of between $42.25 and $45 per prisoner/per day, including transportation and medical care expenses. All in all Harris County plans on spending $16.5 million to house up to 2,100 inmates for up to six months as a way of alleviating overcrowding.

Harris County Commission Steve Radack said that the county should be able to find additional space in other counties at bargain prices as the crime rate drops. No word on whether he made the comment with a straight face. Let's see, crime rate falling, inmate population in Harris County rising... what's wrong with this picture?

Here's an idea, Steve, instead of shipping inmates all over East Texas, why not put pressure on the Harris County District Attorney's Office to issue personal bonds on Class B misdemeanor drug possession cases? Then the officers can issue a citation with a promise to appear. Let's issue personal bonds (cite and release) people charged with driving on a suspended license.

“I think we'll get it into compliance, whether by sending out inmates to other jurisdictions, or building a massive new jail. If we started tomorrow to design a new jail, by the time you got it designed and engineered, it'd take three years. So, frankly, you're going to have to do something in the interim anyway. If you look at cost of a new facility, the cost of labor to run it, many times it's going to be cheaper to go to someone else who needs the income because they have overbuilt the capacity of their jail, and they need the money. They need to pay their bonds, their debt, and they're out looking.” - Steve Radack, Harris County Commissioner, Precinct 3

That's it, Steve. Let's just follow the money.

Just makes you want to say "hmmmm"

The Tex Parte Blog is reporting that Grand County (Colorado) coroner is investigating the death of Texas attorney Mina Brees this weekend. Ms. Brees was the mother of New Orleans Saints' quarterback Drew Brees and the sister of former Longhorn QB Marty Akins.

Ms. Brees bought herself some unfavorable publicity when she scooped up the expired assumed names certificates for several Austin and Houston restaurants earlier this year. The Texas Attorney General's Office began investigating Ms. Brees for possible violations of the Texas Deceptive Trade Practices-Consumer Protection Act as a result of letters she sent to restaurant owners offering to sell their assumed names back in exchange for a fee.

Just because it ain't smart, don't make it illegal

Washington, D.C. attorney Pepin Andrew Tuma was arrested last month for disorderly conduct after chanting "I hate the police." Mr. Tuma has admitted it wasn't the smartest thing he could have done at the time.

In expressing his belief that the justice system will see his conduct for what it was, Mr. Tuma has pointed out the dreaded "catch-all" charge that disorderly conduct is. Down here I think the actual "crime" is pissing off the officer.

Words, even hateful words, as long as they do not convey an explicit threat should not be criminalized. Ironically we all learn a verse in grade school that some of us seem to have forgotten over the years:

Sticks and stones

May break my bones

But words can't never hurt me.

Had Mr. Tuma threatened the officer, had Mr. Tuma threatened another officer or a member of the officer's family, then you have criminal activity. It is not, however, and should not be, a crime to express one's dissatisfaction with our criminal justice system. Instead of arresting Mr. Tuma for expressing his opinion, maybe it's time we look at why the police are hated.

What happens between the time young children are taught to respect the trust the police and the time they reach adoloscence and adulthood? At what point do the police look at a young black male as a threat? At what point does the utterance of mere words become a crime? At what point do a people feel more threatened by their so-called protectors?

More women being arrested for DWI

According to statistics, the number of women being arrested for drunk driving increased more than 28% across the nation between 1998 and 2007 while the number of men arrested decreased. What's more, women are more likely to be caught driving with children in the car.

Among the reasons cited for the increase are the increased pressures women are feeling at home and in the workplace, an increase in the amount of time women spend driving and an increase in uninhibited behavior by younger women.

A federal study indicates that women are drinking more today than ever before. Between 1993 and 2002, the number of women who consumed more than four drinks a day (considered a sign of alcohol abuse) rose from 1.5% to 2.6%. The number of heavy drinkers among 30-44 year old women more than doubled - from 1.5% to 3.3%.

In fact, the daughter of U.S. Supreme Court Justice Antonin Scalia plead guilty to a charge of driving while intoxicated with children in the car.

This increase means that a DWI lawyer is likely to have more female clients than in the past. This becomes important in a breath test case because the breath test machines used by law enforcement don't take into account the physiological differences between men and women.

When a person consumes alcohol, the alcohol looks for water in the body to settle. This is one of the reasons alcohol makes a bee-line to the brain. Since women have a lower percentage of water in their bodies than men, a woman's alcohol concentration will be higher than that of a man of similar stature. Women also tend to have less lung capacity which can affect the result of a breath test. The argument can thus be made that in a close case, the breath test machine overestimates the alcohol concentration in a woman.

In some cases that can be the difference between an acquittal and a conviction for life.

Remember to think before you post online

The ABA Journal ran a story on its website yesterday about Galveston County District Judge Susan Criss and the dangers of Facebook and other social media sites.

Judge Criss has a Facebook page and is known to respond to comments by her "friends" from time to time. I've even got a nice message or two from Her Honor. She said that in order to avoid the appearance of partiality, she will "befriend" any attorney who asks her.

In a talk at the ABA's Annual Meeting she reminded the attorneys in the room that what you put up on Facebook, Twitter, MySpace or a blog is out there for all the world to see. She recounted the time an attorney asked for a continuance due to the death of a family member -- the only problem was the attorney had been posting updates on Facebook about quite the rowdy weekend.

Just as I warn my clients to watch what they put up on their Facebook pages while a case is pending, we need to be careful what we put up for the world to see. Much like those pictures your client posted of his drunken weekend on the beach, your comments will linger in the ether of cyberspace long after you've forgotten what you were talking about.

Drunk driving case against Tarrant County judge dismissed

Christmas came early for Tarrant County District Judge Elizabeth Berry when the Johnson County Attorney dismissed the charges of driving while intoxicated with an open container. After already having a Johnson County judge order the results of Judge Berry's blood test suppressed, Johnson County Attorney Bill Moore filed the motion to dismiss today.

Moore said that without the blood test result he would be unable to prove the charges against Judge Berry beyond all reasonable doubt.

Judge Berry was stopped for driving in excess of 20 miles over the posted speed limit. The arresting officer noted an odor of an alcoholic beverage on her breath. He also stated she appeared confused and that he saw eight beer cans in the car.

Judge Berry refused to perform roadside coordination exercises and refused to blow into the breath test machine. She later refused to submit to a blood test leading up to the warrant for a forced blood draw being issued.

I find it curious that the County Attorney would dismiss a case simply because he had no chemical test. There are refusal cases tried in Harris County every day. Did Mr. Moore forget he had three ways to prove intoxication (as every prosecutor points out during voir dire)? Or was it the final act in a case of professional courtesy?

One year and counting...

One year ago today the first post appeared on this blog. Instead of introducing myself and my purpose in creating this blog I wrote about the need for personal bonds for those arrested in Harris County.

Over the past year, and 364 posts, I have delved deeply into drunk driving defense, Harris County's new DWI "pre-trial diversion" program, trial tactics and the sad saga of Samuel Kent. I have offered you my opinion on constitutional issues such as the prohibition on unreasonable search and seizure, confrontation rights and the right to remain silent. I have also shared with y'all my love of baseball and poker.

I also have quite an active reading list (though I don't surf around as much as I would like to) that includes my colleague Mark Bennett's excellent Defending People. Mark is a scholar and a gentleman who is always willing to share his knowledge and insights with anyone willing to ask. I'm also a fan of Miami criminal defense attorney Brian Tannebaum's Criminal Defense Blog. I love the screen shot from To Kill a Mockingbird, Brian. Another must read is New York criminal defense attorney Scott Greenfield's Simple Justice. And I would be remiss if I didn't also mention Grits for Breakfast, Life at the Harris County Criminal Justice Center, Cynthia Henley - Defender of the Accused, and the soon-to-be-back-from-hiatus Minority Report.

Now I guess it's time for a little bit about your author. I'm a 42 year-old (soon to be 43) criminal defense attorney in Houston, Texas. I am married to a very patient woman and we have two beautiful daughters. When not practicing law I run marathons and coach youth soccer. I'm a lover of the Constitution and a student of the Civil War. On the weekends you can find me outside with the grill. This is my fourth year in private practice and I can't imagine a better situation that being your own boss.

This past year has been a wonderful experience and I hope y'all have found it informative, interesting, humorous and irritating. I want to thank everyone who has read my blog or posted a comment. I may not agree with all the comments but I appreciate your spending a few minutes a day here.

New appointment system for capital cases in Harris County

A new day is dawning in Harris County when it comes to appointments in capital cases. On Tuesday, a panel of judges introduced a sweeping reform of the manner in which attorneys are appointed to represent indigent defendants charged with capital murder.

Through the creation of a database called the Fair Defense Act Management System, judges will be able to view an attorney's misdemeanor and felony case load before assigning a capital case. Harris County officials hope to avoid future situations in which an attorney accepts more appointed cases than he can handle competently (see "It all adds up to incompetence").

“Do I think sometimes there are folks who are innocent of crimes who are convicted wrongly? Absolutely. This is a great stopgap.” -- Harris County District Clerk Loren Jackson

The creation of this new database is another example of what new Harris County District Clerk Loren Jackson has brought to the table since taking over the office in January. Mr. Jackson has spent his time in office working on ways to use technology to make the flow of information in the District Clerk's office more efficient and more manageable.

Another prosecutor leaves Lykos & Co.

So yet another prosecutor in the Harris County DA's Office is exiting 1201 Franklin and entering the world of private practice. The latest to depart is Carvana Hicks Cloud who, in a parting shot, told the Houston Chronicle's Lisa Falkenberg that the Lykos administration lacks diversity in the leadership roles.

[N]umbers provided by the DA's human resources department show 46 of the 300 prosecutors are minorities, about 15 percent. In February 2008, the Chronicle's Brian Rogers reported 44 of the 262 prosecutors were minority, or about 17 percent.

Ms. Cloud was transferred from the Public Integrity division to Intake shortly after Ms. Lykos took over the office. She claims the move was politically motivated as she was a public supporter of Ms. Lykos opponent in the general election, former HPD Chief C.O. Bradford (who presided over the mess at the HPD Crime Lab).

Of course politics was behind the transfer. One would have to be incredibly naive to think that a newly elected official wouldn't remember who came out publicly for her opponent. Had Bradford won the election, there would have been plenty of Lykos' supporters being moved around.

It's the nature of the beast, folks. If you want to do and say what you wish without consequence - go work for yourself.

I wonder if ethics is in the syllabus

Forty-five professors at Texas Tech have signed a petition protesting Chancellor Kent Hance's hiring of disgraced former Attorney General Alberto Gonzales to a teaching position at the university.

Mr. Gonzales, who resigned from office in a cloud of controversy after the Justice Department fired nine Assistant US Attorneys and after his (less than truthful) testimony about surveillance programs run by the National Security Agency.

"I've been in the situation room. I've been in the Oval Office to talk with the president of the United States. I think I provide a perspective that very few people teaching at Texas Tech University can provide." - Alberto Gonzales

Mr. Gonzales is slated to teach a seminar class with fifteen students this fall entitled Contemporary Issues in the Executive Branch. It is not known at this time if Mr. Gonzales' attorney will be on hand to advise the former AG whether or not to answer students' questions.

I just wonder if he'd take points off for a student answering a test question with "I don't recall."

Pardon near for boxing great Jack Johnson

This past week Congress took a big step in correcting a lingering wrong - a pardon for the first black man to hold the Heavyweight Championship in boxing - the Galveston Giant, Jack Johnson.

Jack Johnson won the heavyweight title from Tommy Burns in 1908. He defended the title against the "Great White Hope" Jim Jeffries in the "Fight of the Century" in Reno, Nevada in 1910. Johnson won when his opponent failed to answer the bell for the 15th round. Afterwards, Jeffries said "I couldn't have hit him. No, I couldn't have reached him in a thousand years."

Johnson ran afoul of the law when, in 1912, he took his white secretary/girlfriend across state lines. Johnson was charged with violating the Mann Act. Judge Kennesaw Mountain Landis (who later suspended Shoeless Joe Jackson and his "Black Sox" teammates for throwing the World Series), found that Johnson took her secretary across state lines for "immoral purposes." Johnson was convicted and sentenced to a year and a day in prison. After living on the lam in Europe for several years, Johnson eventually returned to the States and served his sentence.

The resolution will now make its way to President Obama who has the opportunity to restore Jack Johnson's name.

Death of a bill

In the most recent biennial session of the Texas Legislature, a bill commissioning an institute at Sam Houston State University (a school with one of the premier criminal justice programs in the nation) to develop best practices in both live line-up and photo-array identifications, died on the floor after a fight to defeat a voter ID bill.

The proposed legislation would have required law enforcement agencies to follow the institute's findings in developing their own written procedures governing how line-ups would be conducted.

Researchers say it is important that the officer presenting the lineup not know details of the case or who police suspect, so as not to consciously or unconsciously influence the witness.

It's also important to specifically warn the witness that the perpetrator may not be among the photos shown or among the suspects presented in a live lineup.

So why would anyone object to a law that would require law enforcement to use the best scientifically proven techniques?

In the last 15 years, 39 Texas convictions were overturned by DNA evidence. All six Harris County convictions overturned hinged upon false eyewitness identifications.

Back in March, I wrote a piece that incorporated six safeguards The Justice Project called for regarding eyewitness identifications. Those safeguards are:

• Law enforcement agencies should document lineups or photo arrays by providing the photos used in a photo array or a photograph of the live lineup as well as all dialogue and witness statements made during the procedure.
• Law enforcement agencies should inform eyewitnesses, prior to viewing a live lineup or photo array that the accused may or may not be in the lineup. Eyewitnesses should not feel compelled to make an identification.
• Lineups and photo arrays should be composed "fairly." The report calls for fillers to be selected based not on their resemblance to the accused but, instead, on their resemblence to the description provided by eyewitnesses.
• The person conducting the lineup or photo array should not know the identity of the accused. Having a "blind" person conduct the lineup reduces the chances of the officer influencing the results of the lineup or photo array.
• Law enforcement agencies should avoid exposing eyewitnesses to multiple viewings of the accused.
• Law enforcement agencies should consider using sequential arrays instead of traditional arrays. In a sequential array, an eyewitness views one individual at a time which prevents the witness from making an identification through process of elimination.

Gary Blankinship, president of the Houston Police Officer's Union, claims credit for killing the bill in Badge and Gun, the union's official publication. This claim despite the fact the bill made it through both a House committe and the (all) powerful Calendar committee before dying on the floor.

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.

"First the punishment, then the trial"

On September 1, 2009, law enforcement officers in Texas won't have to worry about niceties such as the Fourth Amendment should a suspected drunk driver exercise his Constitutional right to refuse a breath test. He will be able to order a blood draw without the hassle of a warrant.

No more need to demonstrate probable cause. No more need to persuade a judge to sign a warrant. No more annoying criminal defense attorneys litigating the Fourth Amendment.

As the law stands today, a police officer may request a sample of a driver's breath or blood if there is probable cause to believe the motorist is driving while intoxicated. The motorist is free to decline the officer's request and risk having his driver's license suspended. The law authorizes a forced blood draw in the event there was an accident and another person with either killed, is expected to die or suffers a serious bodily injury.

If the driver refuses the officer's request for a breath or blood test, the officer may force the driver to submit to a blood test if a judge (at the county court level or higher) signs a warrant authorizing the blood draw. Those warrants, however, are subject to litigation regarding their validity.

Come September 1, an officer may require a motorist to submit to a blood test in any accident in which anyone is injured, regardless of the severity (or lack thereof) of the injury. In addition, any judge or magistrate (which would include municipal court judges) who is a licensed attorney, will be authorized to sign a blood warrant in a DWI case.

These changes, along with prosecutors forcing defendants into pretrial diversion programs in Harris County, just serve to illustrate the erosion of constitutional protections for those suspected of driving while intoxicated.

What's the deal, Roger?

NFL Commissioner (Judge, Jury and Executioner) Roger Goodell has spoken and Michael Vick has been (conditionally) reinstated to NFL-playerhood. Mr. Vick will be allowed to sign with a team and play in their final two preseason games but he will have to sit out at least the first five games of the regular season.

While Mr. Vick's conduct off the field may have been reprehensible, there are players on teams' rosters who did far worse. Mr. Vick gave up the richest contract in NFL history, was in federal custody for 23 months, lost two years in the prime of his career and had to declare bankruptcy.

This conditional reinstatement just adds insult to injury. How many teams are willing to take a chance on signing him without knowing for certain he'll be able to play in the upcoming season?

Mr. Vick paid a very steep price for his misdeeds and I daresay that 23 months under federal supervision trumps Donte Stallworth's 24 days in the county jail and probation for killing another person. Ray Lewis was present for the stabbing death of an individual in Atlanta - he was never punished by the NFL. Leonard Little was convicted twice of DWI -- including one case in which he killed someone. He was never punished by the NFL.

Why is Vick facing the ire of the commish? Is it because he lied when the commish asked him what was up with the hubbub in Virginia? Was it because he didn't admit to the commish that he was involved in the dog fighting operation? Hey, Goodell, wake up! You're an attorney and you know damn well that Vick's attorneys would have (or at least should have) told him not to admit to anything.

Presumed innocent?

I'm a defense attorney. I'm supposed to believe that we are all innocent unless proven guilty beyond all reasonable doubt. That's what I say when I walk into the courtroom.

That's what I say even when I know that my client was too drunk to drive.

And I believe it when I say it.

I'm not defending my client's actions, I'm defending our constitutional rights by putting the state to its burden.

Then why is it so hard to say it when the alleged wrongdoer is a police officer? Why am I so willing to believe what I read in the paper about his alleged misdeeds? Why does the same mechanism that starts ticking off possible defenses, explanations and excuses when a client sits down across from me shut down when the alleged wrongdoer is a police officer?