I Don't Know Where to Begin . . .
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!
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!
Comments
Also, who is going to provide the treatment? If they are on PTD, they are not monitored through probation.
I don't have a problem with it, except for the fact if they aren't successful on their PTD, then the case is re-opened and the DA is now looking at a very old DWI.
That's some stellar management at work.
Calvin A. Hartmann
What is snooks going to do when one of the people she puts on pre-trial diversion gets liquored up and causes a fatality?
As for Lykos being a defense attorney, that is not at all what this new policy is about. This action is driven by budget issues, 100%. If (almost) nobody goes to jail for this, then thousands of days of jail time will be saved. Maybe each person would only have spent one or two days each, but if you multiply that by hundreds of offenders a year, you get a lot of days. That means lots of beds being taken up on a cumulative basis and extra guards and temporary beds to be hired and used. Or extra inmates housed in private jails in Louisiana. All of which cost millions of dollars a year and puts us out of stem with the Texas Commission on Jail Standards and makes us build new jails that get voted down in bond issues.
This is a budget decision, and a direct result of Lykos coming from the county offices. This indicates direct collusion with the commissioners to make policy based on dollars, which can in some instances be an unfortunate, but unavoidable, necessity.
Most first timers are one-timers though. So I think it's a good policy, as long as it does not include the kid driving through a house, and I don't believe it will.
I also disagree whole-heartedly with your stance on Watkins. He has the balls to do what Rosenthal refused to do--recognize that the system is flawed and take steps to correct past and future wrongs. Instead, Rosenthal actively destroyed DNA evidence. If that makes the Dallas County DA's office a de facto PD office, then Harris County's DA's office has historically been judge, jury and executioner. I'd rather have the Constitution respected and the rules followed if that means a DA is likely to acknowledge flaws in the system instead of ignore them. And Dallas didn't have our crime lab issue, to top it off. You're behind the curve on that issue.
Word of warning: people write like they talk. That's how people first figured out who I was. And if it writes like Bubba Joe 6 Pack and it talks like Bubba Joe 6 Pack . . .
A pre-trial diversion is an agreement with the prosecution that they will drop the charges before they are ever officially brought to the court. This allows the accused to seek an expunction of the arrest and it cannot be used against the accused in any future proceeding.
The result of course is that each subsequent DWI is a "1st Offense," warranting another mandatory pre-trial diversion under her proposed program. It creates an endless cycle, unless the accused is arrested for their second before the first is expunged.
Did I miss something or is this potential scenario accurate?
What fucking article did you read?
"...first time DWI defendants and that they will not even be arrested."
Ummm, so how do we sign them up for PTD if we never bring them in?
Great point about the ALR's, I don't think DPS will give a shit about the disposition if they didn't blow.
AHCL: I'm telling you man, I'm not Clint. At the risk of protesting too much, however, I'll let it drop. You should be aware that there are those of us in the community who may not like Lykos much, but feel she's a damn sight better than any of the alternatives that ran, and that some of her ideas (although not original to her) are headed in the right direction. This is one of them.
It will be a DWI revolving door under this poorly thought out plan. I guess that's why we have hundreds of DWI deaths a year. Whats a couple hundred more? Maybe this is a good program for domestic violence cases too! They also take up jail space.
If this were really about jail space, this program would be used for less serious offenders who also spend the weekend in jail. Maybe a good program for some DWI offenders or for the thousands of people arrested for driving without a licenses or those caught with a joint.
Patty's idea is to release drunk drivers and divert them into treatment. What do the police do? Drive them home? Call a cab? Tell them to report to Patty's office on Monday morning?
I guess the courthouse can be turned into a big drunk holding cell where the cops just drop them off, and DA's getting the drunks to sign pre-trial diversion contracts. No Defense lawyers necessary since no charges are filed. Don't hold them longer than 24 hours or charges have to be filed. Those contracts will really be enforcible.
Then who does the supervision? Remember the courts and probation officials aren't involved because there are no charges. I guess a new social work division will have to be created in the DA's office.
Come on Patty. This plan needs work. If you want to expand Pre-trial diversion to DWI's OK, but it has to be done the way pre-trial diversion has always been done. Charges first, lawyer submitting an application with realistic plan of treatment, paid for by the defendant. Signed contract with appropriate admissible confession, adequate enforcement with the judges involved to insure that the screw-ups are punished.
That plan may work if done in very limited 1st offender, no accident cases on a trial basis, especially if the police have no objections.
The basic problem Patty has is lack of experience as a trench prosecutor and doesn't even seek input from her staff who would recognize these problems. Open mouth insert foot.
The only real question is how they can prevent the guy from losing his license, although I'm guessing that process is begun upon being charged. The cop on the scene doesn't revoke a license, just reports the DWI to the folks who get that process started.
I'm not one to give Lykos credit where it isn't due, but this ain't exactly rocket science.
Sincerely,
Not Clint
You just have absolutely no idea how much I'm kicking myself for dumbass ways right now. Geez, if I'd only known that I would be blowing a chance to sit down and talk history with Lykos, I never would have started this blog. Oh, the humanity . . .
Supporter for Pat,
Thank you for giving us yet another enlightened insight into the internal workings of a Lykos' supporter's mind.
Or lack thereof.
Nice way to protect the community, Pat.
But my real question is if the arrest is expunged after a PTD, will we ever see it in JIMS later?
People know I am a DA, and no one has told me they like this idea. To a person, anyone who has said anything has done so with a "what in the hell is she thinking" tone.
Ask yourself how many subsequent DWI you see that have been on probation already?Wow, you are good at this. Yes, everyone there on a subsequent DWI had a first DWI. You're a quick one.
Kinda like legislating from the bench, or the 6th floor, as the case may be.
In addition, the Leg refused to pass a bill that would have restored deferred adjudication for DWI. Lawmakers clearly want prosecutors to prosecute DWI cases and make a record of drunk driving.
By adopting deferred prosecution, Lykos has put up the white flag, signaling to those that drink: you get one free pass, be sure to use it. It's a bad idea by a terrible policymaker.
Will these people even need lawyers to get their Pre-Trial Diversion or is simply being arrested enough to qualify? Just sign on the X...........
If they do need lawyers you can be certain no one will by paying an exorbitant fee to a "DWI lawyer". Why pay $10-$15k for Trichter when a $100 appearance fee will be enough to sign up for the PTD they are entitled to?
When does the guy who hit the officer's vehicle last week get to sign up for his PTD? He didn't actually hit the officer, someone else did. Is his crime victimless and worth a PTD?
On the plus side, misdemeanor prosecutors can finally focus on cases that really matter like possession of marijuana or driving while license suspended. Those stupid DWI's were just clogging up the dockets!
. . . even if it's happening at the hands of Pat Lykos. If the Harris County voters disagree, well . . . you do have elections there, don't you?
I don't mind Pre-Trial Diviersion as an available remedy on some cases, but that's not what Lykos says in the article. She is talking about the wholesale use of it on ALL first time DWI cases. It brings more problems to the table than she could have imagined. And we are unfortunately a damn long ways away from the next election.
1) The first DWI arrest is rarely the first time the offender has driven drunk. It was simply the first time they were CAUGHT. In every respect, these offenders are endanging the lives of truly innocent citizens each time they choose to drive while their mental or physical faculties are impaired.
2) The second arrest for DWI following a successfully completed pretrial diversion will have to be treated as a FIRST OFFENSE or Class B Misdemeanor DWI. A second conviction, which should really be a third, will only be a Class A Misdemeanor, and so on. The Legislature has established a very well reasoned and workable enhancement process for repeat DWI offenders. This new pretrial diversion program will totally screw that process up not only for Harris County, but every other county in the state which should be able to rely on the intent of the Legislature being followed as it relates to the prosecution of repeat DWI offenders.
As an elected prosecuting attorney in a surrounding county, I can state unequivocally that Lykos will not score any points with other prosecuting attorneys throughout the state who swear to uphold and enforce the law as given to us by the folks in the pink granite building over in Austin.
What happens when an illegal is "arrested" under Patsy's DWI amnesty program?
If one were inclined towards conspiracy theories, one might opine that this is a brilliant move. Run this policy for a couple of years and all the DWI specialists will be out of business in short order, then Draconian measures will be re-instated. I'm not quite willing to go that far, but I do think it makes for interesting issues with we defense attorney's trying to sell what we can do for our clients. First time DWI offenders are often among the most affluent (i.e. most able to afford good representation). If you can get what is essentially a dismissal from a $200 lawyer, why look further?
Second, I have some contention with the premise that if the person fails at pre-trial diversion, the case is simply re-opened and the prosecutor is at a disadvantage as the case is no quite old (ref. Anon 7:21) Back when I was at the office (insert old f*rt joke here) before you could recieve pre-trial diversion, you had to sign a judicial confession to the offense prior to the deal being put in place. In other words, bust the deal, admit the confession, case over. (yeah, I know, involuntary plea, involuntary statement. Hey, there's always SOMETHING to litigate).
Finally, I always was a little ticked at all the annonymous comments. I didn't realize there were so many steps to getting "recognized" as it were on the blog. Therefore, this will post as "annonymous", but for the record, I'm
Jeff Hale
So if you got another DWI the court would know.