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.