My goodness, the Harris County Criminal Justice system is taking a beating in the attempt to oust a one term District Attorney. No one is being spared the wrath of those that want her out, including me. And you too if you are, in the words of Murray Newman, an ordinary old voter and not a piece in the “cog” of the criminal justice system.
I woke up this morning to coffee and the charge that I was but an ignoramus. A well meaning one, one that tries to be informed, but an ignoramus nonetheless because I’m not a part of the 5%. Which, truth be told, is probably closer to 0.1% of the population because only DA’s and criminal defense lawyers have the true ability to discern what is best for the other 99.9% when it comes to who should be in charge of the criminal justice system. On Twitter, I’m told by an anti-Lykos supporter that I am biased because I dare to write about both sides in this race, not just spew forth hatred towards DA Lykos.
I digress.
As the title says, this post is about DIVERT, the program instituted by DA Lykos to try to remove from Harris County the title of number one in drunk driving fatalities. And for all practical purposes, it seems to be working to me. But remember, I am but an ignoramus. Well meaning, sure, but an ignoramus that simply doesn’t know better and hasn’t a clue about the “true facts” about DIVERT. Never mind that 14 out of 15 criminal court judges support the program (and we’ll talk about that 15th one in a bit). Never mind that the Texas Senate Committee on Criminal Justice lauds its success in reducing recidivism (see pages 23-24 out of 115). The detractors of DA Lykos maintain that it is illegal and, in the words of challenger Mike Anderson, gives offenders a “free pass”.
I’ll leave the charge that it is “illegal” to the 0.1% that could challenge it in court if they so choose. I will only say that the program started August 1, 2009 and it seems to me that that is sufficient time for one of the 0.1%’rs to have challenged it if they wanted to but what do I know. Ignoramus that I am.
No, I’m going to stick with what I do best and that is to find the truth, pass it on, and let you decide what to do with it. In that light, there have been several charges, rumors, and much innuendo about the program. As I said in this post when I filed a Public Information Act request,
I’ve had people say that one famous person in particular has received preferential treatment, that the program is used to let influential people off and not used as described above for first time offenders, and that one judge that is against the program publicly recuses himself from cases so that his friends can be accepted into the program in other courts.
Let’s use facts to assess the truth of those rumors using the information I received from my PIA request, something you could also do and something those 0.1%’ers surely could have done.
Preferential treatment
The case of the famous dude getting preferential treatment: NOT TRUE. In fact, I knew this wasn’t true even before I filed the PIA because the information on Houston Texans’ receiver Jacoby Jones is sitting publicly available on the Harris County District Clerk’s website, which I pointed out to a Lykos detractor. Unfortunately, the detractor didn’t believe the information on the website because they “knew for a fact that Jones’ case had been dismissed after 90 days”. They knew this “for a fact” because several ADA’s currently in the office had told the detractor at the time and were upset about it. For a fact.
Except, as I mentioned, it isn’t “a fact”. Here is the timeline on Jacoby Jones:
- Charged with DWI in Cause # 1514287 on March 16, 2008
- DIVERT Agreement on September 20, 2009
- Monthly supervision with good reports
- Memorandum of Agreement signed March 31, 2010
- Case dismissed April 1, 2010 (at this point Jones had pending case 746 days with good behavior/reports)
- Memorandum required:
- Maintain interlock on vehicle until September 20, 2010
- Continue to report monthly until September 20, 2010
- Waiver Statue of Limitations on original offense
- One of the conditions was that he speak publicly about DWI
- Release from Memorandum of Agreement September 20, 2010 (365 days from DIVERT, 918 days from offense)
Now, if the detractors can spin that into a “know for a fact” 90 day special treatment issue, more power to them. But those are the facts, Jack.
Influential people, non-first time offenders, racial bias, etc.
To answer this one, I asked for a set of general statistics so that we could see the big picture of the program from its inception through November 30, 2011. Below are the numbers.
1. The total number of referrals/requests: 5,925
2. The race/ethnicity of each defendant requesting entry:
|
Blank |
9 |
0.2% |
|
Asian |
228 |
3.9% |
|
Black |
613 |
10.4% |
|
Indian |
10 |
0.2% |
|
Unknown |
44 |
0.7% |
|
White* |
5008 |
84.7% |
|
Total |
5912 |
3. The total number of defendants accepted: 3,919
4. The race/ethnicity of each defendant accepted:
|
Blank |
6 |
0.2% |
|
Asian |
161 |
4.1% |
|
Black |
401 |
10.2% |
|
Indian |
8 |
0.2% |
|
Unknown |
33 |
0.8% |
|
White* |
3309 |
84.5% |
|
Total |
3918 |
5. The average time served under the program by race/ethnicity of each defendant accepted:
|
Blank |
364 |
|
Asian |
365 |
|
Black |
363 |
|
Indian |
368 |
|
Unknown |
363 |
|
White* |
364 |
|
Average |
364.5 |
6. The median time served under the program by race/ethnicity of each defendant accepted:
|
Blank |
364 |
|
Asian |
364 |
|
Black |
364 |
|
Indian |
364 |
|
Unknown |
364 |
|
White* |
364 |
For this purpose, as is Census Bureau practice, White includes Hispanic. On the surface, Blacks seem to be under represented: the 2010 Census shows that Blacks account for 18.9% of the population in Harris County. It could be that Blacks just don’t drive drunk as much as the rest of the population or it could be that Blacks do not like the DIVERT program. In either case, there doesn’t seem to be any indication that any ethnic or racial group is receiving preferential or biased treatment under the program. And the numbers are clear that when the DA’s office says one year, they mean one year. Just the facts.
About that 15th Judge
One judge, Judge Bill Harmon, maintains that the DIVERT program is illegal and refuses to allow defendants in his court to participate in what, to me, the ignoramus, is a very good option for first time offenders. That is, if the overarching goal is to reduce drunk driving in Harris County. But does he really prevent EVERYONE in his court from participating?
On the surface, yes. He has not allowed a single defendant to enter the DIVERT program directly from his court. But what about cases that originated in his court but were subsequently transferred to other courts? Since the inception of the DIVERT program through November 30, 2011, there have been 36 DWI cases moved out of Court at Law #2 and sent to other courts. Of those 36, 25 resulted in Convictions in the other courts, 8 show as Dismissed, and 3 show as “Reformed”. Sorry, but one of the blogging lawyers will have to help you with “Reformed” as I have no idea what that means.
Of the 8 dismissals, two of the defendants were offered entry into the DIVERT program at their request. One of the two, lawyer Kevin Krist (Cause # 1738256, February 16, 2011), had his case transferred out of Court # 2 on March 9, 2011 “per Judge Harmon – personal conflict”. Mr. Krist ultimately declined the offer when the DA’s office refused to waive a requirement that an ignition interlock device be placed in his vehicle on August 9, 2011. Probably a good move on his part because on October 7, 2011, the case was dismissed for lack of evidence.
The other case is more interesting for this exercise. The case involved Morgan Bourque (Cause # 1663435, February 26, 2010). Mr. Bourque was a prosecutor in Montgomery County at the time. On April 22, 2010, Judge Bill Harmon transferred the case to Court at Law #4 by Agreement. On the very same day, Mr. Bourque entered a Plea of Guilty and entered the DIVERT program. Now, someone that isn’t a part of the 0.1%, like me, would go, hmm. Isn’t that interesting. They sure got a lot done in the time it took to walk from Court #2 to Court # 4. But then again, I’m just a 99.9%’er. BTW, Mr. Bourque’s case was dismissed on April 21, 2011 – one year, just like the DIVERT agreement specified.
Again, if Judge Harmon thinks that this program is illegal, why doesn’t he challenge it in court? Just curious.
Thus ends my foray into the DIVERT PIA. But not into this race, for sure. I’ll remind you once again that I don’t have a dog in this hunt, I just want voters to have the information they need to make the best decision for the people of Harris County. Stay tuned next week for a recap of an interview that I did yesterday that I think you will find very interesting. Or not, depending on if you are a 0.1%’er or a 99.9%’er.
Very impressive research. I am not suprised about judge #15. These idiots inject politics into the criminal justice system and the 99{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} end up paying the price tag for their fun and games.
Objectivity over subjectivity. Excellent analysis David.
Who’s the ignoramus now?
Merry Christmas
David you know I’m a huge fan of you and big Jolly Politics because you are open minded and fair on your assessment of issues.
My opinion and comment:
Why is Harris County law any different than in the other 253 counties? The State Legislature passes the laws and punishment/penalties. Harris County continually changes the law/punishment/penalties to their own liking. I’m sorry, I don’t recall anything in Texas Penal Code Chapter 49 that says “except in Harris County” where they make their own punishment. I understand courts have some leeway on “probation” but not erasing the “conviction”. If ADA Lykos does not like a law or the standardized punishment set by the state then she needs to battle the Legislators to change it.
As a Texas Law Enforcement Officer, who happens to have been certified as a NHTSA instructor for Texas Peace Officers on Standardized Field Sobriety Testing, I think our laws are, and should be, strong for a reason. I’ve worked too many fatal accidents where body parts of the driver and innocent people had to literally be scrapped off the roadway – just because of someone being intoxicated and behind the steering wheel of a vehicle. It takes 2, 3, even 4 hours just to file a Class B misdemeanor criminal offense of DWI already in Harris County – this is because of the bureaucracy and that is a deterrent for regular patrol officers to even attempt to pursue the criminal offense – because they will be out of service a large percentage of their shift.
The problem isn’t only with ADA Lykos, it is with the system. Groups like MADD are great political alias for politicians to stand on stage with. But actual enforcement doesn’t trickle down to the street officers unless MADD or other groups give grant (STEP) money to pay for specific enforcement, usually around certain holidays. In my opinion we’re not tough enough on DWI enforcement and the punishment.
I also understand society can op for changes – there was a time where horse thieves and forgers were hung. Until the “state laws/penalties” are changed, we should have fair and equal enforcement – as written and standardized by the State.
The success rate is inflated because of the screening process that prohibits anyone who might fail from being accepted into the divert program. Everyone on divert has zero arrests (not convictions, arrests), no history or indications of alcohol abuse (I.e. The people who could actually benefit from a treatment program are excluded because they might relapse or fail thus skewing the success rate numbers), and is wealthy enough to afford the conditions of divert (and a good enough lawyer to make sure they stay on divert). There are many other factors taken into consideration, but suffice it to say that if there is the slightest chance that you might fail, you will not be accepted into the divert program.
As to the legality of divert, not a single defendant or defense lawyer will oppose it because in the end divert is to their benefit. What makes it illegal is the fact that a participant must enter a plea before the court to 30 days, which finding of guilt is deferred until the completion of divert. If you mess up, you automatically get the conviction and 30 day sentence (after a hearing, I assume). The LEGAL pretrial diversion is a similar contract between the DA and a defendant, but no plea is entered before a judge (the DA just agrees to dismiss if conditions are met, if not, the case starts from scratch as if there was never any contract). Divert acts effectively like a deferred adjudication (plea to the court with sentence hanging overhead) rather than a pretrial diversion (contract with the state with no court involvement or determined sentence). The laws of Texas do not allow for deferred adjudication for dwi. The legal way to have handled divert would have been to just allow for pretrial diversion in dwi cases.
David, I might add another fan of the DIVERT program is Devon Anderson. She has several clients on DIVERT and I am sure being a very disobedient wife to Mike Anderson. You really can not make this stuff up.
Ted’s Conscience, Devon cas clients on divert because she is ethically obligated to serve her clients’ best interest, as am I. I too believe that divert is illegal, but if I have a client who qualifies and his legal defenses look non-existent, I am ethically required to look out for his best interest and consider divert for him. If I had a client charged with a horrible murder and the state offered to plead it down to something that is not a true lesser included offense or offered state jail time or probation (all of which would be illegal sentences), I’d advise him to take it. Even though the sentence would be illegal, it would only be overturned if the state appealed (which they presumably would not do since they offered the illegal sentence to begin with).
Another thing to consider: a lawyer is required to convey all plea offers to his clients, failure to do so can result in trouble with the state bar. The client is the only one who can make the decision whether or not to accept a plea – and a lawyer’s failure to allow a client to do so can also result in trouble with the state bar. Basically, thus lawyer can only advise a client, but the decision of whether or not to accept divert rests solely with the client. What I’m saying is that Devon has no choice in the matter no matter how you want to spin it.
Ex ADA,
So you are saying Devon can not send DWI clients eligible for DIVERT to someone else, lawyers do that everyday? So when Devon granted Judicial Bypasses was it because it was the best thing for her client?
Ted’s Conscience Hooper, lawyers don’t do that every day. In fact, i dont know of a single instance of a lawyer pawning a client off on someone else to avoid allowing him to plead to an illegal sentence. Should she stop representing people charged with DWI altogether because the HCDAO engages in illegal sentencing that is beneficial to a select group of individuals? Any criminal lawyer can explain, as I did in my previous post, why divert is illegal. Any criminal defense lawyer will also tell you that they would never speak out against divert, but would advise the appropriate client to take it in spite of the illegality (myself included) because it can greatly benefit the small percentage of people who qualify.
Personally, I have no idea whether or not she granted judicial bypass. Nobody should know because by it’s very nature it is confidential. Even if she did, that has nothing to do with divert, which is the subject of this blog post. I’m not trying to say that I support Devon or her husband, Mike (because again, this post is about informing people about divert, not the DA race).
Ex-ADA- Mike Anderson, so all the other Judges in Harris County are wrong and you are right? You have thousands of years in legal experience in the elected Judges who support DIVERT. You really want to make or defend this argument, because all those wealthy voters on DIVERT are going to be voting against you, I see Jacoby Jones doing a commercial for Pat.
Not Mike Anderson, sorry. The fact that I’m a defense attorney should’ve given that away. Frankly, the judges in HC do plenty of things not permitted by the legislature (which is not necessarily a bad thing), divert included. The judges in other counties accept pleas for obstructing a highway on dwi cases (illegal sentence because not a true lesser of dwi) with dwi probation conditions. This is illegal, but at least the defendant gets the tools necessary to avoid future dwi charges.
As a defense attorney I’m all for divert, regardless of the fact that it’s technically illegal. I’d prefer pretrial diversion, but I’ll take what I can get.
The other problem with divert is all those ineligible can ONLY plead to 30+ days in jail (no probation). This means that prosecutors have no discretion and people who need serious help with alcoholism (since these people are ineligible for divert) do not even have the option of getting the help they need through probation programs.
Divert is great for those who qualify. The collateral consequences for everyone else charged with dwi are unjust.
Not Hooper, sorry. Your statement about DIVERT being illegal gave it away that you are Mike Anderson. It is the exact same statement on your web site. Your defense of Devon gives it away too. Mike, you are the only person other than Harmon who says it is illegal. To begin, your rhetoric is ignorant because no court or the state legislature has ever said DIVERT is illegal…just you two. DIVERT is a very strict program and only for those with no criminal history. It is an excellent chance for a person to straighten up their life. This program gets help for the very wealthy drunks who, in the past, slipped through the system time and time again and eventually committed mayhem on our roads after their expensive lawyers exempted them from punishment. DIVERT is a huge success and it is a very poor campaign issue for an opponent of Pat Lykos. Please keep arguing it though!
Ted’s Conscience, ask Troy McKinney, Gary Trichter, or any other of Houston’s top DWI lawyers why divert is technically illegal – they will reiterate what I said. Also, look at the example of “obstructing a highway” pleas in DWI cases for other examples of technically illegal sentences that judges allow all the time (and for good reason). I’m not calling it a bad program, just outside the guidelines set by the legislature.
None of my posts knock Lykos or promote Mike Anderson. I do, however, point out why Devon, myself, and just about every other defense attorney in Harris County goes along with divert despite its illegality.
Frankly, I agree with Lykos’s decision to not prosecute the majority of trace cases. I disagree with her blanket policy of never filing them; however, because there are a handful of cases where it would be appropriate to file for trace amounts of cocaine. Taking away all of a prosecutor’s discretion in any circumstance can often lead to an unjust result simply for the sake ofmpolicy. I also disagree with Mike Anderson’s stance on the matter because the majority of trace cases are a waste of time.
I was trying to keep my posts factual and informative for those who don’t grasp why divert is technically illegal without turning this into a political stance for any candidate. I figured this was appropriate since the title of the blog post is “Harris County DA’s DIVERT, Facts, not rumors or innuendo”.
To sum it up:
1. Divert is great for those who qualify.
2. Eligibility for divert is so restrictive that success rates are horribly skewed since you will only be accepted if you are all but guaranteed to succeed.
3. Because a defendant must plead to the judge with a pending sentence (rather than simply signing a contract with the DA’s office without judicial involvement), divert is in effect a deferred adjudication which is prohibited by law for dwi in Texas.
4. Absent a plea to the court and judicial involvement, divert would be a perfectly legal pretrial diversion.
Mike, LMAO you participate in illegal activity, state rests!