Monday, August 31, 2009

Humor on the Elevator

Overheard today on the elevator:

ATTORNEY: Yeah, they didn't put anything [any courts] on the 13th floor, you know, because the 13th floor is supposed to be bad luck.

DEFENDANT: Shit, every floor in this building is bad luck.

Friday, August 28, 2009

The Judges' Club

The Houston Chronicle is reporting this afternoon in this article that all charges have been dismissed against Texas Supreme Court Justice David Medina's wife, Francisca Medina, in relation to arson charges which she was indicted on last year.

Now for those of you who don't recall, the indictment against Mrs. Medina stemmed out of the "Runaway Grand Jury" that had indicted both Mrs. Medina and Justice Medina despite the fact that prosecutors were not seeking an indictment at that time. If you recall, then-prosecutor Vic Wisner got lambasted (extremely unfairly) over the actions of the Grand Jurors (whom he could not control). I still believe that Vic's association with the Medina case (and the fact that Medina is a Republican) is what got him his walking papers from "rock solid" Republican "standard bearer" Pat Lykos when she took over in January.

Vic Wisner has got more integrity and trial talent in his little finger than the entirety of the Gang Who Couldn't Shoot Straight put together, so I can't see any other reason why Snookems and the Davidians wouldn't have kept him.

But I digress.

I'm not writing about the merits of Mrs. Medina's case, because I don't know anything about them. Cases get dismissed every day in Harris County with no newsworthy ramifications. I find nothing unusual about that whatsoever.

What I do find unusual, however, is the fact that Lykos and the Gang tried to slide one past the media and do the dismissal as quietly as possible. Charges against Mrs. Medina were dismissed yesterday, but it took the media until today to find out after somebody, somewhere apparently leaked the information.

Now, keep in mind that the Lykos Administration is so enthusiastic about tooting their own horn that they make Louis Armstrong look like a tone-deaf asthmatic. If past behavior were to be any indicator, it would seem that this would be a prime opportunity to the Republicans' favorite Golden Girl to be proudly announcing how she had "righted yet another wrong of the Rosenthal Administration".

But not so with this case. Perhaps Lykos wanted to keep it quiet so that there wouldn't be too much attention to the fact that she was dismissing a case against a fellow Republican judge's wife. Whether the dismissal be completely justified or complete cronyism, it certainly would violate Prong One of the Office's motto of "Look Good, Think Smart, and Win".

Lykos' fondness for judges and doing them solids is nothing unusual. Hell, just from her upper echelons of former-judges Hannah Chow and Roger Bridgwater, you could tell that she was fostering her own de facto Judicial Retirement system for herself and her buddies.

Additionally, she has been showing some extreme deference to the cases of judges accused of crimes under her Administration.

Again, while I'm not commenting on the facts of either the case against Judges Woody Densen or Don Jackson, I again find it interesting that the Gang didn't file charges on either one of them directly -- they presented the cases to Grand Juries to make them do the dirty work.

NOTE: For those of you out of the Criminal Justice System, the vast vast vast majority of all criminal cases in Harris County are filed when the crimes are alleged to have been committed. A person can be charged with the finding of Probable Cause by a Magistrate. It is only a very rare minority of cases that are actually taken "Direct to Grand Jury". Sometimes it is because of the fact that cases need some research with witnesses brought before them. Other times, it is because the case is such a toss up that prosecutors really aren't sure if the case would survive at trial.

But other times it is because a prosecutor (or elected D.A.) doesn't want to be the one directly responsible for the Indictment, or lack thereof. It's kind of the legal equivalent of avoiding getting any blood on your hands.

In the case of Judge Densen, my understanding is that the complaint of Criminal Mischief had been made against him a long time before there was any action on the case. It was only after the Complainants in the case had turned over their surveillance video of the crime to the media that Lykos had her prosecutors take the case into Grand Jury.

Republicans have often been accused of being the champions of the Good Old Boy Network, and Lykos has certainly lived up to that billing in her eight months at the helm.

But apparently, there's something even better than being a member of the Good Old Boy Network when it comes to Patsy.

That's being a member of Pat Lykos' Judges' Club.

Tyler Flood's Experience with the DIVERT Program

My friend and Officemate, Tyler Flood, was kind enough to share his recent experience with Pat Lykos' new, controversial DIVERT program. Tyler, who's criminal law specialty is DWI and other related intoxication offenses details how Bridgwater's "rehabilitation program" really is just a great opportunity for a DWI Defendant to risk getting betrayed and screwed over by the Gang Who Couldn't Shoot Straight.

Tyler describes his experience as follows:

I accompanied a client to a DIVERT interview a week and half ago and met Raymie Hairell-Sweat, the person in charge of this program at 49 San Jacinto. She was very professional and did an excellent job at calming my concerns about what questions would be asked of my client about the actual incident. I was concerned with my client making any admission that could later be used against him. I expressed my concern to Raymie that I didn’t want my client to have to go into details about the incident and she ASSURED me that the interview wouldn’t be that intrusive and that a brief statement of what happened would suffice, such as “I was arrested for DWI.” I was more impressed upon our exit that Raymie actually went to the interviewer and told her to be cautious about asking too many questions about the incident that the attorneys were there and are very concerned.

WELL…on another client, we just received an email from ADA Roger Bridgwater, stating, “It appears his needs exceed the ability of DIVERT.” A Rejection from the program! His SALCE scores weren’t even at the highest 5 mark. They were in the middle and they still rejected him. Mr. Bridgwater attached the interview and it is a complete de-briefing on the incident covering EVERYTHING about what happened, including how much the client drank, admissions of operating, basically everything they need to have a solid case at trial now. They first promised they wouldn’t ask intrusive questions and were not seeking admissions and now not only do they send me a rejection letter into the program but through the interview process they have just prepared themselves for trial at our $202 expense!

After calming down and reflecting, it all makes perfect sense…They claim DIVERT is about rehabilitation and treatment for those that struggle with substance abuse. They also say that they are going to have a ZERO TOLERANCE policy meaning one screw up, one reading of alcohol in the ignition interlock, one relapse, whatever you call it, that person is out of the program and on their way to jail.


The problem is that treatment and zero tolerance are contradicting strategies. Treatment is not about "no mistakes". Treatment commonly involves relapse. This presents a problem to the DIVERT program. It sets it up to have very low success rates. The DA’s office needs for it to appear successful. So how do we fix the problem? By now deciding to reject anybody who they think won’t make a zero tolerance policy. Rejecting everyone who truly needs and could benefit from REAL treatment. Reject anybody who may have a problem and then you’ll have higher success rates. From what I heard yesterday, there was a meeting and it was stated that half of all applicants are in fact being rejected. So much for across the board acceptance for first time offenders.

I was suspicious of this program before, and now I am just angry. I would caution every attorney and client considering taking it and I would urge the attorney’s presence at the interview when possible.

Thursday, August 27, 2009

Congratulations to Joey DeBruyn

Congratulations to my good friend, Joey DeBruyn, who is celebrating his 25th year with Harris County today.

Joey is the court coordinator in the 337th District Court under Judge Herb Ritchie, but I first met him many moons ago when I was the Felony Two in the 177th District Court under Judge Davies. Given the fact that we were both damn good lookin' bald guys with goatees, people were always confusing us with each other.

Joey is one of the best coordinators in the building. It doesn't matter if he is in the middle of the worst day of the year, he remains polite, professional and cheerful under all circumstances. In a job that is as hectic as a coordinator's, it's amazing he's still smiling after all this time!

Congratulations, my friend, on a job well done!

Wednesday, August 26, 2009

Judge Hatten's Birthday

Today is Judge Bill Hatten's 96th birthday, and a celebration will be held in the 176th District Courtroom at noon.

Judge Hatten was before my time as an elected Judge, but I had him once as a visiting Judge during a voir dire on a Robbery case I was picking in the 179th. It wasn't all that serious of a robbery case and I had decided that some humor in my voir dire would work well.

Unfortunately for me, I didn't realize that Judge Hatten was going to talk to the jury before I did. If I recall correctly, it was around the time of his 90th birthday when the trial occurred, and he mentioned his birthday to the jury panel, before launching into the problems with getting older.

In a deadpan voice, he told the jury panel:

The problem with getting older is that it's getting harder and harder to wake up in the morning.

I knew I was getting older when my hearing was going and I couldn't hear the alarm anymore. Then I would try to just look at the clock and see what time it was, but my eyesight started going and I can't see it anymore.

So, then I just started turning over and asking my wife what time it was, but now I don't have my teeth!

The jury erupted in laughter and there was just no following that act. It was hysterical.

Happy birthday, Judge.

Tuesday, August 25, 2009

Lisa Falkenberg's Column Today

I'm a little late on the draw on commenting on Lisa Falkenberg's column this morning about the actions of Judge Kevin Fine in a recent sexual assault trial.

I think it is a very good column and makes a very good point, and I say that despite the fact that I like Judge Fine, and Judge Fine has never been anything but kind to me (both as a lawyer and now as a Judge).

The problem is that sometimes when shifting into a new job position, one needs to learn that the role you used to play isn't the one you will be playing any longer. I can certainly sympathize, having shifted from a prosecutor to a defense attorney right around the same time that Judge Fine switched from defense attorney to Judge. Although I've been criticized for blogging like a prosecutor, I think that all of my clients would gladly tell you that once we're in the courtroom, I am able to put my past career entirely behind me.

I'm there to represent them wholeheartedly.

If I didn't do that, I would have a very short career as a defense attorney ahead of me.

In the trial case mentioned by Lisa in her column, it would appear that Judge Fine was having some difficulty in putting his past career as a member of the Defense Bar behind him.

And as Lisa aptly points out, he just can't do that.

It doesn't mean that Judge Fine is a bad person. I can attest that he is a very good person who is truly trying to make a difference in the Criminal Justice System. Unfortunately, it sometimes results in some unorthodox methods that lead to complications that should not be coming from the Bench.

In this case, a line was crossed, and major credit should go to prosecutor Ed McClees for standing up for the Complainant in his case. Lisa described it:

The question drew an objection from Prosecutor Ed McClees, who questioned the relevance in a tense exchange.

Objecting to a Judge (as opposed to Opposing Counsel) is a gutsy move, and not a lot of Prosecutors (or Defense Attorneys, for that matter) would have been brave enough to do so. A lawyer can quickly find himself in jail for objecting to a judge.

But Ed clearly understood the definition and parameters of his job, and he did the right thing despite potentially being held in contempt. In an Office that seems to rapidly be losing a lot of its Leadership, I think younger prosecutors can look to Ed as somebody who can lead them in the right direction and by example. It is very easy to stand up for something when you are surrounded by people. It's much more difficult to stand up alone at counsel table, which is exactly what Ed did.

Judge Fine was a very talented and brilliant Defense Attorney in the years he spent before becoming a Judge. I have no doubt that he has the potential to be a talented and brilliant Judge, as well. But I think he's going to have to let go of the past life to progress to the new one.

I have no doubt he would have passed along the same advice to me if I was still behaving like a prosecutor in his courtroom.

At least I hope he would.

Monday, August 24, 2009

'bout Damn Time

Brian Rogers long anticipated article regarding the departures from the D.A.'s Office hit Monday morning's edition of the Chronicle today, and it's a pretty good read. It's a shame that whoever is in charge of article placement couldn't have gotten it in Sunday's edition so that more folks could become familiar with the wonderful world of the Davidians.

Of course, as usual, Lykos is stating that there is no problem in a scene reminiscent of Sergeant Schultz from Hogan's Heroes. There was nothing unexpected about that.

It was nice to see that Leitner was back to lying on the record by denying a a communication problem within the Office:

“Channels of communication have always been open,” Leitner said. “Just because one person says something doesn't mean that's the universal way of the office.”

Yeah, the problem with that, Jimbo, is that it isn't just "one person" saying it. It's your whole damn Office, and you arrogant schmucks aren't listening to a one of them.

My prediction - wait until after November and you'll see that these departures are just the tip of the Iceberg.

Friday, August 21, 2009

Malicious Twits

Looks like the Fake Pat Lykos blogger has gotten the attention of Houston Chronicle legal blogger Mary Flood with this article on the Chron's website today.

Looks like Ms. Flood is as amused with Jared Woodfill's McCarthy-esque accusations of the "wild eyed Liberal elite" being behind the fake Twitter account as I was.

I did enjoy learning what Patsy's response was to the fake Twitter account:

"The fraudulent twitters appear to be the work of a malicious twit."

Should I respond with the "takes one to know one", or is it too obvious?

Nah. Too obvious.

As someone close to me would say "That's beneath you."

I'll let Snooks slide on that one.

Thursday, August 20, 2009

I'll Take "Vast Left-Wing Conspiracies" for $1,000, Alex.

Local Republican Chairman Jared Woodfill came to the screeching defense of the GOP's Golden Girl Pat Lykos today with a screaming attack on the practical joker who created a fake Twitter account last week on behalf of the District Attorney.

Now, for those of you who missed the short-lived practical joke, somebody (and no, it wasn't me, but I do think it was hysterical) created a profile purporting to be Pat Lykos and started sending out Twitter "status updates" on her behalf. The status updates were clearly satirical and literally had me doubled over with laughter. Some of the highlights from "Pat" included:

-"Grabbing a smoke before going back to building the best f*cking DA's Office in the USA."

-"Going to send Hannah (Chow) to make the rounds and make sure everybody is working hard. These bastards will slack off if you let them."

And my personal favorite (in response to this post):
-"What's the matter, asshole, you don't like dogs?"

Clearly whoever was the author of the fake account had a great sense of sarcasm and humor. I even have to admit when I saw that "Pat Lykos" was following my account on Twitter, I kind of freaked out. The whole site was Political Satire at its best, in my opinion. After reading the first post, no reasonable mind would have ever believed it was really Patsy doing the posting.

Apparently Chairman Woodfill disagreed. And he had alot to say about it. Most of his response was pretty damn stupid, too.

First of all, he blamed the "vile" tweets on "most assuredly, the liberal elite".

Holy Joseph McCarthy, Batman!

Jared, seriously, I doubt it was the "wild eyed left", as you call them. It was most likely a former prosecutor who is dismayed at the absolute hatchet job that your "standard bearer for DA" has done on the Office that they used to love. Odds are that former prosecutor is probably fairly conservative in most things, but I could be wrong about that.

Next, Woodfill goes on to describe the "rock solid" Pat Lykos as a "Republican Institution". Lykos may be rock headed, but I'm having a hard time seeing her as "rock solid", man. Her erratic behavior and her wild policy swings between denying probation for illegals, yet making mandatory Pre-Trial Diversions for DWIs don't exactly paint a picture of stability. If "rock solid" "standard bearer" Pat Lykos is your role model, it is no wonder that the Harris County Republican Party took such a kick in crotch during the November elections.

Let's face facts, Mr. Chairman. The only reason that Pat Lykos won the election in November was because her opponent, Clarence Bradford, carried more baggage with him than Imelda Marcos on a Roman Holiday. She didn't win the election as much as Bradford and his past scandals lost it. If you are going to be holding onto her as a reason for the GOP to rest on their "laurels", you may be in for another rude awakening in November 2010.

Oh, and by the way, all of those phenomenal "accomplishments" you list Patsy as having accomplished are things that were in play well before she and the Gang Who Couldn't Shoot Straight came to town.

The reality of the Lykos Administration is that it has reinforced every negative stereotype that the Republican Party has ever had to defend itself against: Good Old Boy Networks, Cronyism, Enemies of Diversity, and Arrogance.

You think Lykos is helping your Party? Seriously?

Monday, August 17, 2009

When We All Agree

If you read this blog and other legal blogs with any regularity, you have probably figured out that I'm often in the minority on a lot of issues when it comes to agreeing with my friends Cynthia Henley, Paul Kennedy, and Mark Bennett.

But today, I think the four of us are all in agreement in condemning the behavior of Andy Nolen, a local defense attorney in Harris County, Texas. Based on the research of Cynthia, Paul and Marky Mark, it appears that Andy has been creating a false "profile" on the internet to go about blasting other defense attorneys while praising himself. The trick he was pulling is pretty simple -- rate all these other attorneys with the lowest possible rating while giving himself stellar marks. It's about as grade school and immature of a stunt as one can pull.

It's unbecoming of freshman in high school, let alone an attorney with several years under his belt.

Let me just say this -- out of the four of us (me, Mark, Cynthia, and Paul), I'm the only one who was ever a prosecutor. I'm not saying that to brag. I'm saying to point out that I faced some very formidable opponents in my time. I never dealt with Paul on a professional basis, but I did deal with both Mark and Cynthia. I also dealt with the vast majority of the other attorneys that Andy Nolen decided to anonymously bash -- Wayne Hill, Dan Gerson, Joe Salhab, and Dane Johnson to name a few.

All of them are excellent attorneys who do honor to the Harris County Criminal Justice System.

I also dealt with Andy Nolen. His contribution to the reputation of the Defense Bar never held a candle to any of those he dared to insult.

I have said it before and I will say it again -- I believe Harris County to be home to some of the greatest prosecutors and defense attorneys in the history of Criminal Justice. It's an honor to walk amongst the Giants of Litigation that I've worked with for ten years now.

Andy isn't one of them.

And his actions have diminished the reputations of not just the attorneys he maligned with his fake reviews -- it diminishes us all.

He should be ashamed of himself.

But knowing him and the way he acts, he's probably too foolish to realize it.

Saturday, August 15, 2009

Barkings from the Lykos Lap Dog

There's a cute little letter to the editor from Hannah Chow today, defending the Lykos record on minority hires. It's in response to the Lisa Falkenberg article on Carvana a couple of days.

She is proudly touting the fact that the Office has hired 5 (count 'em, 5) more minorities than there were at the end of last year. This is truly a stunning step forward in race relations. Let's see, they've been in Office for 8 months and hired five, that's like about .75 minorities a month!

What she doesn't address in her article is why it seems that none of these minorities are actually moving forward in the Office in any meaningful type of way. Don't get me wrong, I am not advocating promotion based solely on race, but Lykos and the Davidians are clearly letting it be known that your best chance for promotion within the Office is if you are Caucasian.

I mean, come on, when they are citing that they have two minority Bureau Chiefs and they are talking about someone who is Asian and another who is American-Indian? Give me a break. Where is the representation from the African-American and Hispanic prosecutors? Is Lykos saying that none of them are worthy of promotion?

I can think of several example of minority prosecutors in the Office right now that would be excellent members of the upper echelons.

Not that I can fathom why they would want to entwine themselves with that group.

I'm sure the comments on this post are going to once again say I'm "race baiting" and advocating promotion for the sole sake of diversity. That's not what I'm trying to do. I just think that if Lykos was going to campaign on diversity and Chow is going to write letters to the Chronicle proclaiming her boss to be the greatest thing for race relations since Abraham Lincoln, then they ought to back it up with some meaningful moves.

Not the crap that they seem to be trying to peddle on a daily basis.

Monday, August 10, 2009

Patsy's Playhouse

Back in the olden days, as the Rosenthal Administration was crashing to the ground, one of the accusations often thrown around was that Chuck had run a "good old boy network".

Now, we all have a generalized idea of what that phrase means, obviously -- giving jobs to friends, ignoring charges against friends, and utilizing county money for personalized perks or silly and frivolous things, right? And given some of the decisions made by Chuck, arguing that there was no "good old boy network" at all is sometimes a difficult position to take. I do not, however, think it was nearly pervasive as the media made it out to be. Although there have may have been some personnel decisions made by him that raised some eyebrows, I never saw him refuse to file charges on anyone based on the fact that they were friends or political cronies. Perhaps I was too low on the totem pole at the time, but I'm just saying I never witnessed it personally.

That being said, that even if Chuck was guilty of utilizing the fabled "good old boy system", he apparently has nothing on Pat Lykos, who has seemingly turned the Harris County District Attorney's Office into her own personal playhouse with little to no shame about who knows about it.

During the past eight months, we've already discussed the little things Lykos has done to make the Office a better place -- not for the people who work for her or the citizens she was elected to represent -- but only for herself. Sadly, we aren't even a quarter of the way done with The Snookems Era, and we've already watched her stretch an extremely budget-strapped Office into her own personal playhouse by:

-making her prosecutors (including 1st Assistant Jim Leitner) accompany her to the basement to smoke while discussing death penalty cases (NOTE: Um, Patsy, that's still inside a public building and kind of sort of against the law. I'm just sayin' . . .)

-hiring a driver to escort her around town.

-having Hannah Chow strategically place water coolers throughout the Office.

-hiring political cronies and friends into top level spots (including one prosecutor from Montgomery County who apparently just stuck around long enough to get her retirement and is retiring at the end of this month. Thank you so much for your eight months of service to Harris County, ma'am.)

-hiring a speaker to come lecture her prosecutors and let them know that their primary objective was to make Lykos "look good".

Now, before I sound entirely too harsh about Patsy, I should point out the positives. She was able to send a message across the county that the D.A.'s Office didn't take DWIs all that seriously anymore, and let the Houston Chronicle know that the media would have a major influence in all decisions affecting criminal justice.

It seems to me that the one thing Lykos isn't doing from the 6th Floor is her job.

Right now, there is at least one Felony Court that is running short a Number Three prosecutor, which is absolutely unsustainable in Harris County. I've talked before about the job of a Felony Two -- the prosecutor in the court who tries 99% of all the murders and 100% of all the sexual assaults and aggravated robberies. It's the toughest job in the Office, and it can't be done without the assistance of a Felony Three, who handles the logistics of court every morning.

The idea of leaving a Felony Court shorthanded is absolutely inexcusable, especially when there are other felony courts that have four prosecutors. There is no rational explanation why one would be running with two prosecutors, unless Lykos and the Davidians are trying to kill the Two in that court.

Failing to keep your courts fully staffed is, uh, incompetent and negligent, Pat.

Now, I've never been an elected official, so I'm sure that Patsy and the Gang are very busy beyond my comprehension. It's a wonder that she has had time to chain smoke, quite frankly.

But apparently Lykos has found the time to redecorate her office and get the Office a dog.

While leaving her prosecutors flapping in the wind, Patsy has made time to have the wall that seperated her office from her secretaries removed and the carpet pulled up and replaced with hardwoods. She said the carpeting was making her sick.

Yeah, I'm sure it had nothing to do with the smoking or the smoke getting trapped in the carpet.

And, once she got her home away from home all squared away, she has entered into a project that will bring an Office Dog to 1201 Franklin as part of the Victim Witness Program.

Yeah, I'm not making that up. I'm not making this part up either -- they are calling the program "Paw & Order: SDU". The "SDU" stands for Special Doggie Unit.

Seriously, I'm not kidding.

And her prosecutors are overworked and underpaid. But hey, at least she got them a dog.

Lykos' stunning ability to avoid doing the actual job she was elected to do is just staggering. I'm reminded of when I worked for my dad when I was 16 years old and he would look at me being lazy and say "Would you do some work, please?"

Sunday, August 9, 2009

Addiction to Blogging

Apparently, Troy McKinney's recent foray into blogging has inspired him to start up his own blog at http://law4lunch.blogspot.com/.

As I've said before, and I will say again, Troy is a legal genius. I would strongly encourage you to check out what the man has to say. Check early and check often.

You might just learn something.

Friday, August 7, 2009

Troy McKinney on the DWI Pre-Trial Diversion Program

I recently asked my friend and legal genius, Troy McKinney, if he would mind taking time out of his busy schedule and sharing his views on the new Pre-Trial Diversion program. For those of you outside the criminal law field, Tory is one of the most knowledgeable minds in criminal law across the board, but has a specialty in DWI law. He is a nationally recognized attorney and I appreciate him very much for posting the following, well-researched and well thought out article on why the Diversion Program is a terrible idea.

Many have very mixed views about the DWI diversion or intervention program being initiated by the Harris County District Attorney's Office. Below are some of the problems I see in the formation and implementation of the program. While there is no doubt that some folks will benefit from getting a disposition that does not involve a full trial and does not result in a formal conviction, I fear that for far too many more it will be little more than a false promise crushing false hope. Whatever else this program does, it will solve very little for those who really need such a program -- either because they have a serious drinking problem or because a conviction will threaten their career. In large part, this program is more designed to fail than succeed.

1. It is important to know what this program is not. Despite its title as a "pretrial” intervention or diversion program, it is not a pretrial program. Indeed, the program expressly requires that trial begin. While there is plenty of statutory authority for a "pretrial” intervention or diversion program, there is no statutory authority that I have been able to find for a mid trial intervention or diversion program. Traditional pretrial intervention programs are just that: pretrial. Traditionally, if one breaches an agreement in a true pretrial diversion program, the case returns to court pretrial -- as though there has been no pretrial diversion or intervention. The closest authority I can find concerning a mid trial diversion program makes such programs illegal in DWI cases. Texas law has outlawed deferred adjudication in DWI cases for a quarter-century: since 1984. Statutory deferred adjudication works just like this program. The Defendant enters a guilty or no contest plea, waives all of his constitutional rights, agrees to a plea bargain and then rather than getting sentenced, gets the declaration of guilt deferred so long as he completes certain probation conditions. Every aspect of deferred adjudication matches this new program. Giving this program a name that sounds legal does not make it so. On its face it appears to be little more than an illegal deferred adjudication.

2. It is doubtful that this program will result in much, if any, rehabilitation of those with serious drug and alcohol problems. I asked leaders in the DA's office whether this program was patterned after any kind of accepted treatment model or whether they had consulted any recognized experts in creating this program. I was told no to both questions. For those people who have serious drug or alcohol problems, recovery is not usually a bright-line, never again, I am forever substance free process. True, long term recovery often involves relapses. There is no accepted or successful long term rehabilitation program that does not recognize that relapses must be dealt with as part of treatment. We all wish it was different, but it is not. Just ask Judge Lykos whether she would likely relapse if she had to stop smoking cold-turkey today -- a habit she has had for decades. Any honest answer would likely include some relapse. Yet, despite all of the recognition that relapse is part of the recovery process, this program assures that anyone who relapses and is either caught or admits it as part of treatment, will no longer get any treatment or rehabilitation. Instead, they are headed straight to jail for 30 days. Most of those with real substance abuse issues who could benefit from treatment will not join this zero-tolerance, go to jail program. The mantra being sold to the public that this program will reduce driving while intoxicated cases, is little more than a bill of goods. It is designed not to include and rehabilitate those who need it the most.

3. Most, if not all, of those who need a diversion program to save a career cannot participate in this program because the guilty plea requirement ensures that it will be treated like a conviction, regardless of whether it legally amounts to a conviction. There are already a half-dozen statutes on the books that require some professionals to disclose pretrial diversions. The federal government will treat this disposition as a conviction, just as it now does for deferred adjudications. Most employers will not see past the guilty plea: it will matter not that there was no finding of guilt or the case was later dismissed. Thus, those people who have almost any kind of government license, including lawyers, accountants, doctors, chiropractors, nurses of all kinds, licensed medical assistants of all kinds, pilots, bus drivers, chauffeurs, truck drivers, seamen, train operators, those involved in banking and securities, and just about anyone who drives a company car will get no benefit from this program because it is designed to ensure that it harms them just as much as a conviction. Thus, for those who suffer from a DWI conviction far out of disproportion to the norm, there is now less available to them than there was before. This is hardly progress.

4. One of the carrots being dangled by the District Attorney's Office is that two years following completion of the program, the person will (contrary what was reported by the Chronicle) be eligible to have the arrest expunged. Expunction eliminates all record of the arrest and prosecution and makes it a crime for any public official to use records of the arrest for any purpose. While I have no doubt that the Harris County District Attorney's Office will make good on its promise not to oppose expunction two years after completion of the program, I have no faith other law enforcement and government entities will do likewise. It is already very common for the Harris County DA's office to agree to expunctions because it is the right thing to do, just to have the Department of Public Safety or other entity oppose it. I can hear the opposition now: despite the title, this is really deferred adjudication and you cannot expunge a deferred adjudication. No one in the District Attorney's Office can ensure that expunctions following pretrial diversion in DWI cases will not be written out of the law by the legislature, just as they wrote deferred adjudication out of the law for DWI cases. Frankly, I think it is more likely than not to happen once MADD realizes that the real target audience for this kind of program, the hard core drinkers with real problems, are not going to be part of the program.

5. The program as currently written contains a component that appears to be illegal. The program requires a person to sign a document under oath stating that they have never before had any arrest expunged. The expunction statute expressly allows someone who has had an arrest expunged to deny that they were ever arrested – unless they are testifying under oath in a criminal proceeding. Whatever else this written agreement with the DA may be, it is not testifying under oath. The expunction statute makes it a crime for any public official who has knowledge of the expunction to use records of it for any purpose. Requiring someone to disclose that which they are allowed by law not to disclose is wrong. Using that information to exclude them from this program is just as much a use of the records as though they had hung on to them and not destroyed them in the first place. The DA's office is not free to ignore the law just to reach a result, especially when doing so is likely a crime.

6. Judge Lykos campaigned against silly policies that locked line prosecutors into making recommendations that they did not feel were appropriate to the case. Some of the leadership in the DA's office have told line prosecutors that they want to preserve their discretion and that they need not offer this program to anyone for whom they feel it is inappropriate. At the same time, however, the District Attorney's office is requiring that line prosecutors not offer less than 30 days in jail on a first offense DWI -- even though the statutory minimum is three days and even when that line prosecutor thinks a punishment of 30 days is too harsh and less than 30 days is appropriate. So much for trial court prosecutors’ discretion. So much for campaign rhetoric when it gets in the way of reaching a result. Some have suggested that some victim’s groups’ public acquiescence to the diversion program came coupled with the demand for 30 day minimums. If there was any such discussion, much less an agreement, formal or informal, the public has a right to know.

7. Many criminal defense lawyers are disturbed by the appearance of impropriety that has arisen from the DA's office's private meetings and communications with the judiciary (excluding the defense bar) that have resulted, according to DA Office leadership, in the judiciary's preapproval of the program's revocation process -- even though there is no statutory process for such revocations -- and that has resulted in convincing some judges to "go-along" with the minimum 30 day offers. There is not yet enough definitive information to claim that any ethical lines were crossed, but, at best, it sure smells awfully bad. I wonder how the District Attorney's Office would react if the defense bar met ex parte with judges to devise a plan for how the judiciary would handle future requests by the defense bar for something like discovery. Since it did not involve a current case, I am sure they would see no problems with it.

8. The revocation process likely denies everyone due process of law as it does not require the State to prove anything. It only requires a judge to find that there is probable cause to believe that there was a violation of the agreement. This probable cause standard is satisfied merely by an assistant DA saying that someone said the person did something wrong - regardless of whether it is true. "Trust me, I am from the government," ought to make everyone worry about this unbridled discretion that will certainly result in people who have not violated their agreement being found guilty and sentenced to 30 days in jail. While the defense bar was assured that we would get due process of law, the probable cause standard starting point makes few of us hopeful-- particularly since there can and will be no appeal from the decision to revoke the contract.

9. The evaluation process ensures that any competent lawyer will advise their client against participation in it. Before a formal agreement is reached, there must be a formal evaluation done by the probation department. Based on the results of the evaluation, a program will be recommended. The defendant can either accept or reject the proposed program. If the defendant rejects the proposed program, the case proceeds to trial. To date, however, the District Attorney's Office has not committed not to use the results of the evaluation against a defendant at trial. Without such a promise, no competent lawyer could recommend that their client participate in the evaluation process and write the DA's office a blank check to use against them at trial.

10. Around 50 percent of DWI cases that go to trial today result in acquittals. This program assures little more than that more cases go to trial. At a time when jail overcrowding is a serious problem in Harris County, this program does little more than ensure that more beds go to DWI offenders than serious felons. While there are some who will make it through this program, for the vast majority, this program is little more than a good, basic idea gone bad in implementation. For those who need it the most, it is a non starter because of its design. It is unfortunate that the DA's office sought no input from those who deal with thes cases from the defense side of the bar before rolling out a program that is more likely to fail than succeed and is likely illegal.

Wednesday, August 5, 2009

McAnulty & Knotts

Okay, I've been a bit remiss in my duties as Blogmeister.

I've been moving the past two weeks and not paying to attention to what was going on in the Chronicle, so I feel very bad for missing this article on the retirement of two incredibly talented (and legendary) investigators this week -- Dan McAnulty and Ron Knotts.

Now, out of the two of them, I gotta admit I knew Ron better, because we had the common ground of Aggieland to talk about, but the respect I had for both of them was immense. I don't think that I can rival the tribute to these great men that Brian Rogers did in his article in the Chronicle, other than to say that it was an honor to work with them both.

I've mentioned it time and again, but knowing the history of the people we are all working with is a huge part of the job that we all do.

Both Ron and Dan were Old School investigators who leave behind them a career that I think anybody who enters into law enforcement would be envious of. The funny thing about being a police officer is that nobody ever gives you credit for the crimes that you may have potentially stopped.

Given the job that these two men did for so many years, there is no way of ever calculating the crimes that they prevented through their diligent work.

I've talked about the fact that one of the hugest aspects of working as a Harris County Prosecutor was the opportunity to walk amongst Giants, and Ron and Dan certainly fit that description.

Guys, for all the intakes we worked together and all the times we just sat around and shot the, um, breeze, I'm proud to know and have worked with you both.

Congratulations on a well-deserved retirement.

Tuesday, August 4, 2009

Lisa Falkenberg's Column on Carvana

In case you haven't seen it already, make sure to check out Lisa's column on Carvana Cloud leaving the Office in today's Chronicle.

I love it that Lykos gets caught in a lie about the number of minorities in the Office. I also think its pretty damn interesting that she doesn't deny screwing over Carvana for political reasons. Hopefully Lisa's column today will make more citizens of Harris County aware of what the hell Lykos and her Davidians are doing.

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.