As the saying goes, you learn something new every day. Today I learned just how hypocritical a person could be when they want a political office very, very badly. It ain’t pretty, but it is the truth. First, let’s reset a bit.
Incumbent Harris County District Attorney Pat Lykos is being challenged in the Republican primary by former District Court Judge Mike Anderson. There are three basic planks to Judge Anderson’s campaign: (1) that DA Lykos wasn’t a prosecutor and therefore can’t lead the office; (2) that a new policy of not prosecuting drug cases in which there is not enough evidence to test twice is not a good thing; (3) that a new program called DIVERT, which targets first time DWI offenders in an effort to reduce recidivism, is illegal.
I’ve tried throughout this campaign to present both sides fairly. Whether I’ve succeeded or not primarily depends upon your candidate of choice. The Lykos supporters seem to accept that I’m doing my best to be fair, while the anti-Lykos brigade thinks that I’m pro-Lykos. Notice that I didn’t say “Anderson supporters” or “pro-Anderson brigade” because those entities do not exist. This campaign is all about whether or not you think Pat Lykos is mean or doesn’t act like a proper lady should, in your view.
In trying to be fair, I’ve filed several Public Information Access requests. After the first one, the anti-Lykos brigade accused me of being in a conspiracy with a friend who now works in the DA’s office, David Benzion. All subsequent requests have blind copied several people on the anti-Lykos brigade in a futile effort to preclude further “conspiracy” charges.
Which brings us to today’s PIA information, which is more information regarding the DIVERT program. Or, at least that was my intent when I filed the PIA. Specifically, I wanted to look at the State’s brief in several DIVERT appeals written by ADA Alan Curry, who has an impeccable reputation. I thought that you would like to see his reasoning as to why DIVERT was legal, then you could compare it to Judge Anderson’s reasoning as to why it was illegal and make a decision for yourself.
Judge Anderson bases his claim that the DIVERT program is illegal on an opinion out of the Fourteenth Court of Appeals written by Justice Martha Hill Jamison. That opinion was written for a case out of County Court at Law #2 Judge Bill Harmon’s court. Judge Harmon has refused to allow anyone to enter DIVERT because he thinks it is illegal. He has only recused himself from two cases, in which he knew the accused or their relatives and both ended up with DIVERT approvals, which I wrote about here. Judge Anderson’s website highlights this passage from the opinion:
The DIVERT Program, however, is not a part of the range of punishment for first-time DWI offenders. See Tex. Penal Code §I2.22 (governing Class 13 misdemeanors); 49.04 (criminalizing DWI).
ADA Curry, writing appeals for at least six cases out Judge Harmon’s court, makes the case that DIVERT is perfectly legal. His brief is not long but too long to copy and paste here. I would ask that you read at least pages 14-19 of the first brief listed below, Rochelle McNutt. All of the briefs contain the same argument.
First Court of Appeals (note, these are not on the court’s website, I had to file the PIA for them, scan them, and upload):
Fourteenth Court of Appeals (these are online, links provided)
- The State of Texas v. Eddie Gregorio Cortez
- The State of Texas v. David Loustanunau
- The State of Texas v. Jason Daniel Harper
- The State of Texas v. Trumayn Morcha Semba
Mr. Curry’s reasoning makes total sense to me – the appeals court said it wasn’t a part of the range of punishment, Mr. Curry agrees because it is a pre-trial diversion, which is totally legal. But I am not an attorney or a judge, so I’ll leave that to you and others to decide. What really bothered me as I read through these cases was the arrogance displayed by Republican Judge Harmon and the flat out hypocrisy of Mike Anderson. You’ll have to read at least one to see the arrogance but I’ll point out Mike Anderson’s hypocrisy for you.
Recall that I gave Judge Anderson high marks for his attacks on DIVERT at the DA forum in Clear Lake. Specifically, I said:
His consultant has obviously helped him sharpen his focus, putting it in terms of a drunk driver killing someone but the judge and jury would never know about a prior drunk driving incident if the guy had gone through the DIVERT program. That message scored big points with a lot of people attending.
Now, remember, Judge Anderson is basing his theory on DIVERT being illegal on Judge Harmon’s insistence that it is – he has said this many times in many meetings and forums. Now he is attacking it on a potential sob story about a drunk driver killing someone but no one will know about it because under DIVERT, the case is dismissed.
So what is Judge Bill Harmon doing? He is dismissing these cases. Each of the cases above have been appealed by the HCDAO because Judge Harmon has dismissed the charges because the defendants weren’t given DIVERT, which he will not allow. It is like a little kid taking his ball home because he isn’t good enough to play in the game.
And Judge Mike Anderson knows full well that this is happening.
The height of hypocrisy. Lock ’em up and throw away the key – unless it helps me get elected. Wow.
Don’t forget to mark your calendars – Thursday, May 3rd, at King Street Patriots headquarters. Come and see these candidates for yourself so that you can make the right choice.
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