I have to admit that I was pretty much caught off guard to read this article from the Houston Chronicle today announcing that your friend and mine, Patsy Lykos, had decided to create Pre-Trial Diversions for first time DWI offenders.
Now, I know that I am now a defense attorney and should probably be dancing in the street over any type of program that gives wholesale leniency towards a type of crime, but this policy decision deserves a pretty critical look, if you ask me. Now, I know that the Chronicle was practically gushing in it's article, but that's to be expected. After all, Lykos did support them in their efforts to have the Press Shield Law passed (becoming one of about, uh, two District Attorney's in the State to actually support it). In doing so, she bought the Chronicle's love forever, so expect this type of ass-smooching to continue for some time.
As a side note, the term "Journalistic Integrity" has officially become an oxymoron in Houston, but I digress.
First a little background on Texas DWI law as it now stands. Driving While Intoxicated, even a first offense is one of the very very few crimes in the State of Texas that a Defendant cannot receive a Deferred Adjudication. You can receive probation, but the conviction is going to be final. Many people from the Defense Bar and elsewhere have railed against this as being a direct result of over-lobbying by Mother's Against Drunk Driving (MADD, for those of you who have been living in a cave for the past 30 years).
Perhaps so. I'm not really entering into that debate right now. I'll let people who practice DWI law handle that aspect.
The bottom line, however, is that the Texas Legislature dictates that there is to be no Deferred Adjudication for DWIs. The prosecutors have no discretion in that matter, unless they want to reduce that charge to something else or dismiss it. They are pretty stuck with pleading it to a probation or jail time, or take the case to trial.
That is, until Patsy came in with her new program and began (for the first time in Harris County history) an actual policy of doing Pre-Trial Diversions on all first time DWIs.
A pre-trial diversion is an unofficial probation that if a person successfully completes their "probation" the case is completely dismissed and then can be expunged off the person's record as if the DWI never happened. No conviction. No record. A pre-trial diversion is even better than a Deferred Adjudication.
If you don't like judges who "legislate from the bench", how do you feel about an ex-judge legislating from the D.A.'s office? Her message of creating a pre-trial diversion policy is pretty much subverting the intent of the legislature (whether you agree with them or not).
Since Lykos failed at winning a Statewide Office in 1994, I guess she just decided to make herself the Senate, House, and Governor on this particular issue.
Another issue I have with Lykos' new policy statement is that it is an across-the-board policy. All first offender DWIs get Pre-Trial Diversion? Really?
Okay, so the thirty year old guy with a spotless record who gets stopped for speeding and blows a .09 I can live with.
How about the 25 year old kid who crashes his car into the side of a house and blows a .24? Are we still feeling that this is something that needs to be completely wiped off of somebody's record?
Her policy of giving Pre-Trial Diversions to all first time DWIs is the definition of "reckless and negligent" (where have I heard that term before?). It is overbroad and it sends a clear message that the best place to drive drunk for first timers is Harris County, Texas.
Good job there, Snooks.
And my third and final issue with Lykos' policy is that once again she is (yet again) misrepresenting the facts to sell her agenda. The reality of first time DWI cases is that it is extremely rare that a person actually goes to jail on a first offense. They can be ordered to treatment and get all of the benefits that Lykos is now touting as somehow only being available under Pre-Trial diversion.
In addition, to sound tough to her pro-law enforcement crowd, she decided to give a stern warning: "Lykos warned those who did not abide by the program, or were arrested for other charges, would face maximum sentences."
Um, yeah, a person who screws up a pre-trial diversion is basically having their case brought back to life. They will still have the right to take their case to trial and be absolutely no worse off because they failed at pre-trial diversion.
Awhile back, one of my commenters criticized me for not being able to make up my mind over whether I thought Lykos was either a defense attorney in disguise or an over-zealous "win at all costs" prosecutor. My answer to that criticism is that I can't make up my mind until Lykos decides who in the hell she wants to be. She's like a windsock that is basing her policy decisions on whatever will be the most politically advantageous to her.
If she's trying to be a media darling, she is going to be following in the footsteps of Dallas County District Attorney Craig Watkins, who is doing every thing he can to turn his office into a pseudo Public Defender's Office.
If she's back to pandering to her Republican base, she's trying to be Johnny Holmes.
The bottom line is that Pat Lykos is a joke of a politician with no substance and integrity. The job of the District Attorney is to represent the State of Texas in enforcing it's laws and to ensure that Justice is done. A good District Attorney does that job regardless of whether or not the media is kissing his or her ass or if the public loves them.
I'm reminded of what my favorite author, Cormac McCarthy said when interviewed by Oprah on an issue: "You work your side of the street and I'll work mine."
I don't think the elected District Attorney should be acting as a Defense Attorney.
Oh, and as an addendum, I would be remiss if I did not mention the final quote of the article in our "Well, No Sh*t" Department, where Lykos finally admitted that she doesn't think of herself as "warm and fuzzy".
I know we can all sleep easier knowing that she doesn't believe herself to be a chain-smoking Teddy Ruxpin.
NOTE: Since posting this article a couple of hours ago, the Chronicle has modified their original article, including taking out Lykos' moronic quote about not being "warm and fuzzy". So, I guess you folks that read the article before the Chron changed it to protect their gal will just have to vouch for me!