Sunday, August 2, 2009

Here and There

I was talking to a friend of mine whom I went to high school with yesterday about the difference between our old hometown and the cities where we now live. As most of you know, I'm from Bryan/College Station, and although the towns have grown exponentially since I made my first appearance back there in 1972, the place still has a very small town feel about it.

In Houston, there are murder cases that don't ever make the newspaper. By contrast, this story from my beloved Bryan/College Station Eagle is one of the top three stories on their web page at this writing.

It's kind of refreshing, actually.

20 comments:

Anonymous said...

Totally random, but a great comment about the DWI program on the Chron editorial page:

This program faces several very large hurdles, both legal and practical, before it can be successfully implemented. To begin with, even if the program has been "vetted" with some state legislators this does not count for much legally. Neither does the 'support' of county judges. The appellate courts will have to rule on a plethora of sticky issues before this type of deal can be considered "well settled" law. Thus, I would hope for a limited initial application which would provide "test" cases for the appeals court to rule on --- before we see a mass of these deals made. Of course, Lykos may be planning on sticking the appeals court with a 'sour apple' (i.e. if hundreds/thousands of these deals are signed before the appeals court rule, would they *dare* rule against it?).
********
Even more importantly, defendants may find that the DA's ability to "keep the conviction off their records" is rather limited. Despite the DA's protestation, this program does indeed seem very much like deferred adjudication. Even if the state courts agree with Lykos there is no guarantee that the Federal government will. Generally, if a person signs a document admitting guilt they are considered to have been "convicted", no matter whether they do jail time or classes. Can Lykos *guarantee* that the Feds, insurance companies, etc. will not still count these cases against people? People who sign up for this 'deal' had better have a nice, long talk with their attorney before doing so, because it almost certainly will have language that ensures that if the DA can't deliver the defendant is simply 'stuck.'

Rage Judicata said...

The appellate courts will have to rule on a plethora of sticky issues

How so? Anyone who enters does so "voluntarily." Sure, it may be somewhat coerced, but they choose to plead instead of go to trial, so if they violate the terms of deferment it's just like a normal probation/deferment program. In other words, the only ones who could complain to an appellate court have waived any and all complaints by entering the program.

The only way to challenge it would be through some sort of "concerned citizen" lawsuit or a mandamus proceeding designed to force the DA to prosecute instead of defer, on the grounds that the lege has removed all deferred options for DWI.

And as much complaining as you folks are doing, none of you care enough to actually do anything about it.

Anonymous said...

"And as much complaining as you folks are doing, none of you care enough to actually do anything about it."

Can't a comment even be made without the asshole contingent rearing it's ugly mug? Christ you are annoying.

Anonymous said...

Rage reminds me of that kid in Jr. high who nobody paid any attention to and would stand around yelling look at me, look at me. I previously suggested you read the definition of his moniker and give him the appropriate value. Please don't respond to his yelling look at me. I will never comment on him again, he is simply not worth the effort.

Rage Judicata said...

Rage reminds me of that kid in Jr. high who nobody paid any attention to and would stand around yelling look at me, look at me.

Except in every thread where I comment, you clowns ignore the issues and do nothing but call me names and question me personally.

That's OK, I'm a big kid and it's obvious you do it because you have nothing substantive to add.

I will never comment on him again, he is simply not worth the effort.

You promise?

Seaton made that promise to me once, but he didn't live up to it.

The word verification for this post was 'snival.' Close enough to what you folks to do mention.

Eeyore said...

Rage, I dont mind your point of view, so keep it coming. But, where I see there to be appellate issues possibly in the future are going to be once the year deferred is done, and then the 2 year waiting period is over when these Defendants file for expungement.

Let's say that DPS decides that in their eyes this is actually a deferred by definition (which is prohibited by state law for DWI) because of the plea that is made by the Defendant(where is a normal PTD the case is just put off without a plea)and they decide to now start opposing these civil expungement cases.

These would then get appealed by saying that the DA called it a PTD(even though it walks and talks like a deferred) so it falls within the definition for being allowed to be expunged. DPS says no way are they going expunge these records since a guilty plea was made. By then we will have 3 years worth of these so-called PTD's run through the courts and a lot of Defendnats out of a lot of time and money that may not be able to get the golden apple they were promised, all because this DA is trying to change what a PTD actually is.

Does that make sense?

Anonymous said...

Rage, the word verification was STOP POSTING and blog on your own blog.

Anonymous said...

Not everywhere is the bloodbath that is Houston. That's why I left. Even though I tried murder cases for a living, and was hypervigilent, it wasn't enough to save a friend.

The random murders and shootings finally got to me. You can arm yourself, be alert, but there will be times you or your family are surprised, and quite possibly, end up dead.

Wrong place at wrong time kind of stuff. I just decided to change the lowest common denominator in my life-crime equation and move elsewhere.

You know who.

Rage Judicata said...

and then the 2 year waiting period is over when these Defendants file for expungement.

This is handled in advance by the contract. I haven't read it, but if it says "this applies only to your criminal record as relates to the HCDAO, and the DPS and feds, or anyone else, may consider it a conviction for their purposes..." it's a done deal.

and they decide to now start opposing these civil expungement cases.

I guess I can see the DPS opposing it. I was talking about the defendants themselves waiving any complaint. For their purposes, the DPS wouldn't have to oppose the program, they could just treat you like you've been convicted for licensing purposes. A criminal record and license issues are two different things. There needs to be a ton of coordination in the future, and getting the lege to authorize this in the face of MADD and other special interest groups will be impossible. No legislator on either side of the aisle has the balls to go to the mat with MADD.

may not be able to get the golden apple they were promised

That part is still handled by the contract.

all because this DA is trying to change what a PTD actually is.

This program certainly has the potential for being a wolf in sheep's clothing.

I'm for a diversion program. But this one does not seem to be the way to go about it.

OUTRAGED said...

Anon 3:34, your assessment is correct.
In addition, whether or not Lykos or the Chronicle or even a significant segment of the public disagrees with a particular law is insufficient to change it. Do Lykos and the Chronicle feel there should no longer be three (3) branches of government?
If a law becomes outdated or unpopular there are appropriate channels to effect it's change. Lykos has merely circumvented the state legislature's intend by calling DUI deferred adjudication (which is specifically prohibited by state law) DUI pre trial diversion. Admittedly, there is no true expulsion of the record with her DUI PTD and therefore there is no true pre trial diversion. In essence Lykos has simply renamed something that is prohibited for personal gain. This is tantamount to calling a whore a lady of virtue or Lykos a prosecutor.....it just doesn't make it so no matter how many times you say it.

PREDICTION:
If the California State Legislature legalizes marijuana in the state of California, look for Lykos to legalize pot in Harris County shortly thereafter. Lykos prefers the Chronicle's support rather than the Texas State Legislature's; after all Pat is not only above the law she IS the law in Harris County.

Anonymous said...

Did you see the love affair between the Chronicle and Lykos continue on Sunday. The Chronicle was questioning the implementation of the DWI PTD program but concluded with a we love Lykos and her innovative approach to law enforcement. How many times did I hear JBH say the best way to test a law and see if it is a damn fool decision is to enforce the law. Well the law was tested and I have not seen the general public rise up in protest. Will the public rise up in protest or join with the Chronicle?

Anonymous said...

Anon 9:57 I agree with Johnny's wisdom but your query begs the question: Does Pat have the authority to rewrite or enact laws in Harris County that are in direct conflict with existing Texas state law? Whether or not a damn fool result occurs with the enforcement or whether or not the public protests is a non-issue.

Anonymous said...

Having recently received a copy of the purported draft agreement for DWI diversion, I was very impressed with the form of the agreement - impressed in a negative way, however with its substance - that is, that the HCDAO, apparently in coordination with the Comical, has drafted what,in my opinion, is a highly questionable and unenforcable "legal" document. Those who have regularly contributed to this blog and discerned the probable defects, apology for being repetitive is offered.

1) To my knowledge, there is no current statute for pretrial diversion (a/k/a pretrial intervention)except by inference. See, e.g. TEX.CODE CRIM. PROC.,art. 102.012, 102.0121; TEX.GOV'T CODE, sec. 76.011. The former statute addressing diversion was essentially merged with the deferred adjudication provision, TEX.CODE CRIM. PROC., art. 42.12, sec.5. Pretrial diversion, however, as pure "prosecutorial" discretion historically meant that the prosecutor either held the case in abeyance for a prescribed period of time and if the accused remained "clean", either charges were not filed, or if filed, they were dismissed. However, to be enforceable as to fees, reporting to community supervision, etc., the involvement of a judge necessarily was required. The form with which I was provided has no provision for a judge's approval. The "dog and pony show" handout which I received reflects a timeline of case received in court, screened by DA, arraignment offer made, report to probation, report to defense counsel, accused enters DIVERT.

2) It has beeen said that if it walks like a duck, talks like a duck, it is a duck. A similar assertion has been leveled at taxes. The HCDAO putative "pretrial diversion" program now joins that duo - if enforcebale, this is a clandestine deferred adjudication program. As such the representations as to expunction are unenforcable after two years except as to HCDAO because of TEX.CODE CRIM.PROC, art. 55.01 (a)(2)(A)(1)-statute of limitations is tolled during pendency of the charge, TEX.CODE CRIM. ROC., art. 12.05(b), and the pleading will not have been dismissed because of false information, mistake, etc. [(a)(2)]. Further, if found to be in essence deferred adjudication, TEX.CODE CRIM.PROC, art. 55.01(a)(2)(B) will also operate as an expunction bar.

3) Collection of fees ostensibly requires a specific statute and court approval. Without court approval as to the various fees (see, 102.012, supra), none of the fees would appear legal. If there was court approval, however, the deferred adjudication circle would seemingly be closed though, and possibly similar accusations against the judge could be made (see #6, infra)as well as a "void" plea.

4) The agreement attempts to bind the judge to granting of bail, issuance of a warrant, proceeding to adjudication without a determination of voluntariness of the agreement, etc.- obviously, this is a separation of powers problem.

5) The agreement denies the accused those rights guaranteed under TEX.CODE CRIM.PROC., art. 26.13. Further it converts an "intention" into a de facto nolo or guilty plea.

6) Bad faith on the part of the HCDAO - this agreemennt patently and knowingly attempts to extend rights to an accused in violation of the laws - expunction law, deferred adjudication law (no deferred for DWI case - TEX.CODE CRIM.PROC., art. 42.12, sec. 5 (d)(1)(A) in an attemept to secure a "plea" from that defendant, yet deny rights to an accused under 26.13, supra, and those under 42.12, sec. 5. As such does such bad faith give genesis to a 42 U.S.C. sec. 1983 lawsuit against the HCDAO, or does such bad faith give genesis to a grienvance or even possibly a removal proceeding against the DA? I guess only time and the imagination of the defense bar will tell.
[It is hoped the mispellings are few - spell check was unavailable].

Seer said...

What will other prosecutors do when someone you "divert" drives drunk in our county and kills a family?

Ron in Houston said...

Man, it's simply amazing how the comments go off into folks own worlds.

I appreciated the irony Murray. Maybe once the kid gets older you can move.

Anonymous said...

For the record, I love Rage and look forward to his comments! Rage reminds me of the guy on the moview The Ugly Truth. You may not like what he has to say because he speaks the truth!

I think all of this with the dwi program is confusing, but I do appreciate the willingness to try new things. So I hope that the kinks get worked out.

STOP HATIN' ON RAGE!

Anonymous said...

Removal of a public official (e.g.district attorney) may be sought because of incompetency, offical misconduct, or drunkenness. See generally Chapter 87, Local Government Code for those interested.

OUTRAGED said...

Anon 12:23,
BRILLIANT summation.

Anonymous said...

What will other prosecutors do when someone you "divert" drives drunk in our county and kills a family?

Won't matter, if there's been no conviction. No conviction, for whatever reason, means no conviction.

Rage

Anonymous said...

I have just learned from my investigator that Rage is the abandoned "Son of Troll". This would explain his inability to engage in appropriate social interactions and his failure to comprehend higher learning skills. Rage's world is black and white and void of abstract thought. So in light of these findings we need to cut the sorry bastard a little slack.