A Tale of Two Cases

A couple of years ago, under the Chuck Rosenthal Administration, a specialized "team" was created that was specifically designed to assist in the investigation of automobile fatality cases -- those involving alcohol and otherwise. The group of prosecutors, under the leadership of Warren Diepraam, was called the Vehicular Assault Team (or VAT) for short. (NOTE: Personally, I found the alternative of Fatality Accident Review Team to be more appropriate only because of the acronym it created, but my idea never "officially" caught on).

Prosecutors would be sent out to make the scene of auto fatalities to advise and assist the police officers as they were investigating the case. Although it may seem like an automobile fatality case would be a relatively simple one to investigate, nothing could be further from the truth. The assistance of prosecutors was something that could definitely be used in the drafting of warrants and making charging decisions at the scene.

The team soon generated a little bit of controversy when the investigation of non-alcohol related fatalities were resulting in the filing of criminal charges (usually felonies). The most high profile of these being the case of a school bus driver who was charged with a manslaughter charge after accidentally running over a young student in a cross-walk. The bus driver was ultimately acquitted by a jury, but the outrage amongst the Defense Bar over charges being filed in the first place was very vocal.

The Defense Bar argued that not every accident that results in a fatality needs to be filed on as a felony criminal charge.

I couldn't agree more. Not every accident does.

But some accidents are caused by such negligent or reckless behavior that they do actually deserve charges being filed and a jury to decide what happens.

The trick becomes determining the fine line between tragedies and criminal acts.

Within the past two or three weeks, there have been some interesting developments within the VAT Team that make me wonder just who is making the judgment calls on that line.

Take for instance, the case of Jeri Montgomery, the 24-year-old lady who was convicted last month of criminally negligent homicide for causing a fatality while talking on her cell phone, and subsequently sentenced to 30 days in jail as a condition of her probation. We all know that talking on the cell phone (or God forbid texting) while driving is dangerous. But it isn't illegal (yet) and it doesn't make a driver Charles Manson.

However, a jury found the evidence presented by prosecutor Brent Mayr to be compelling enough to return a guilty verdict. A few days later, your friend and mine Pat Lykos was not just standing by the verdict, but doing a little name-calling on the side. According to Patsy, Miss Montgomery wasn't just a crook, but a "selfish and narcissistic" one at that. (NOTE: By the way Pat, isn't that a little "Pot calling Kettle" with the name-calling?)

Now, compare the Montgomery case to the case of Sergio Jiminez Gonzalez that this article is describing. Here Pat Lykos' gang didn't just dismiss any old case -- they dismissed a case where the Defendant had already pled guilty. For those of you who don't deal with criminal law, we aren't talking about a pending case where the prosecutors decide they can't prove it and then dismiss it. We are talking about a completely finished case where a defendant has accepted responsibility and admitted to the criminal charges leveled against him. By pleading guilty, the right to appeal is typically waived.

But here, the Lykos Administration resurrected the case just long enough to dismiss it, which astounds me.

While Miss Montgomery's talking on the cell phone got her a conviction and some nasty names from the D.A.'s Office, apparently the fact Mr. Gonzalez killed not one, but two people (who were leaving church) while speeding in a tow truck, and had cocaine metabolite in his system was somehow less egregious.

In the meantime, the Lykos Administration has been having Special Crimes Bureau Chief Joni Vollman go through the pending cases of vehicular fatalities and there has been some dismissing of cases going on. I'm not necessarily criticizing this, but I am pretty curious to know the criteria for who gets the dismissal form and who gets called "selfish and narcissistic". There seems to be a sudden and drastic lack of consistency going on, if you ask me.

The Defense Bar is applauding the new move towards dismissing these cases, but at some point you have to ask yourself if you have self-admitted anarchist Mark Bennett applauding the D.A.'s Office for the job they are doing isn't that a little concerning? I mean, seriously, when was the last time we saw my friend Mark applauding the D.A.'s Office for a nice Life sentence? Just kidding, Mark.

It doesn't make much sense. Or does it?

Lykos is well-known for seeking out publicity and loves nothing more than adoration from the media. With the current backlash against those drivers talking and texting on cell phones, perhaps she felt that she could play that to her advantage.

Or then again, maybe at her age, the new technology of cell phones just scares her.


Mark Bennett said…
Dude, I didn't say I was an anarchist (I don't have enough faith in the fundamental goodness of people to subscribe to anarchism). I said that Lykos as DA appealed to the anarchist in me.
Anonymous said…
Who is Joni Vollman? Does she have any expertise those types of cases?
Anonymous said…
Why the difference between the two cases?

Easy answer. The Lykos administration does everything for a reason. Sometimes ignorance and lack of experience. Othertimes to help out friends. DWIs and car accidents are prime examples of the latter. The Divert program was created because some of Lykos's lawyer friends who picked up DWIs under previous administrations had to settle for convictions because they could not get reductions. Run some of her closest confidants and contributors and you will find several with DWI charges. Now they can get pretrial diversion. Along the same lines, prosecutors who prosecute people like her for car crashes are a threat. Therefore, they just decide to dismiss them. Her comment about needing a jack and coke was more than a slip of the tongue!
Anonymous said…
Joni Volman is a prosecutor promoted by Lykos for no other reason than she is a suppporter of the judge. She is a mediocre prosecutor who was passed over several times for chief prosecutor because of her record. She has handled ZERO of these cases. In fact, the entire administration has handled ZERO of these cases. They have written ZERO appeals on them either. The ironic thing is that they would have dismissed the Montgomery case had it not gone to trial when it did.

Cases investigated by the vehicular crimes prosecutors: about 1,500. Cases filed by vehicular crimes prosecutors: about 450. Appeals handled by vehicular crimes prosecutors: about 100. Apeal reversals: ZERO. It is rather apparent who is the most qualified to handle these cases!
Anonymous said…
I was under the impression that the VAT folks had actually attended some of the law enforcement crash investigation and reconstruction training that the crash investigators for the police agencies go through in an effort to get the prosecutors up to speed on crash investigation?

Please correct me if I am wrong. With that said, are any of the trained prosecutors still in charge of vehicular crash cases?
Anonymous said…
When I prosecuted in the 80s, hundreds of negligent homicides were filed each year by police agencies. Then it became a felony and nobody filed them any more. Nothing changed other than the upgrade of the law which made sense considering that a person was killed. They were still being filed in other counties. There are numerous cases in the appellate record from the 80s.

Only later under VATS did these cases start getting filed again. I believe it a good thing that these cases were being prosecuted once more, but many prosecutors and defense lawyers forgot that these cases were routinely filed in the past.

Now, the Lykos administration seems to be shifting the focus away from enforcing this law again. It makes no sense that the DA would choose not to prosecute a type of case for whatever reason they have come up with. Why not leave the decision to prosecute these cases to the experts who have received hundreds of hours of training and have significant experience in handling them as one commentor pointed out? It makes no sense, but the message is clear that death and destruction on our roadways will be ignored by the DA in Harris County! I never thopught I would see a day when somebody could get away with killing in Harris County.
Anonymous said…
Bennett, the rule of law for most folks regarding you is this: If you're for it, it's a bad idea, socially and legally. If you're against it, it's probably a great idea.

Sort of like the George Costanza opposite theory that he espoused once on the show.
Anonymous said…
There is more to this story but this time it may be best to let it go.
Anonymous said…
The issues here are almost too many to list. The 1st pawn has had his hands on one of these cases before when he wsa a member of a Grand Jury and convinced everyone else not to indict a driver that killed a Pct 5 Deputy. Is it any suprise that they will now start dumping these cases. The ones looking at these cases not have no idea what they are looking at.. They think everything is an accident and that there is no crime committed at all. Some of these cases should not have charges, some should. That is what Grand Juries should be deciding. Excessive speeds, 20,30, 40 mph over the limit and blowing red lights is reckless and when the crash happens, it is not an accident.
Anonymous said…
I don't understand the line that the conviction was not sustainable. What does that mean? Was it a plea to the judge and they could have appealed?
Anonymous said…
In order to undo the plea deal, did Lykos undermine her employee who plead the case? Did she then make a statement which undermined her employee to the chronicle?

How does somebody work for a leader like that? Why does this Vollman lady allow that to happen to her underlings?
Anonymous said…
This is why you shouldn't try a tough case. If you win, Lykos takes credit. If you lose, you may end up in the paper. If you plead somebody, you still may end up in the paper.

It is about time that someone from this administration try a damn case. This arm chair political quarterback stuff is fine if you walk the walk. Roger, Jim, Hanna, let's go. Earn some darn respect and quit being cowards. That goes for this Joni Vollman too.
Anonymous said…
If she is going to dismiss the case, she has a duty to explain the reason. Speeding and cocaine in your system are enough to justify criminally negligent homicide, particularly if the defendant accepts responsibility and pleads guilty. Happens all the time. So, what changed?
Anonymous said…
How about the difference between the appellate process in Texas v. Harris County:

What do Little Dick DeGuerin and Little Jimmy Leitner have in common besides their really short stature?
Could it be that both former defense attorneys support the idea that the Harris County DA's office should lose at all costs?
Is there any truth to the widespread rumor that Little Jimmy Leitner is reviewing the David Temple case to see if there is any way to dismiss it? If true, who needs a stinkin' appellate process anymore when we got a fox guarding the hen house!

New motto for the Harris County Defense Bar: If you can't beat 'em in the courtroom there's always the back room....now THAT'S CHANGE we can believe in. Who said the Chuckster was king of corruption? I don't friggin think so Pat...and it hasn't even been a year. What a disgrace!
Anonymous said…
Note to self:

If I want to go get plastered, snort some cocaine and speed, it's cool with Pat. I'd better leave my cellphone at home though!
Anonymous said…
Okay-- here's the deal. Sergio Gonzalez was possibly driving 57 mph at the time of the collision. The speed limit was 45. The victims were leaving a stop sign in which they DID NOT HAVE THE RIGHT OF WAY. Their failure to yield was definitely a contributing factor to the accident. Also, no one can testify that having cocaine metabolite in a person's system equals impairment. That just means the person has ingested cocaine sometime in the past. This was a tough call, but for my two cents worth, it was the correct one.
Anonymous said…
I think your acronym "F.A.R.T." is better than VAT since it describes some of VAT's overzealous prosecutions.
anon 9:29
1. If the defendant was traveling at an estimated rate of speed believed to be ~57 mph at the time of impact, how fast was he going immediately prior to impact?
2. Since the serum sample was not obtained at the scene contemporaneous with the MVA, how much time elapsed between the two (2) events?
3. What is the rate of metabolism for cocaine?
4. Isn't it true that there is no established particular serum cocaine metabolite threshold level that is determinate as to rendering an individual impaired?
5. Are you advocating doing away with drug testing in its entirety since they all merely measure the active metabolites of drugs in issue without objective correlation to the actual impairment of the individual tested?
6. How about the statutory 0.08 as a threshold for DWIs? There are functional alcoholics that perform better than some professional athletes and some that blow 1/2 of that and can't appropriately take out the trash....but as a matter of law that is irrelevant.
7. Failure to yield absolves improper lookout and should absolve liability? Jay walkers had better beware in your world.

The presence of cocaine metabolites is a factor to be considered rather than thrown out with the nonchalant cavalier attitude you put forth.
Anonymous said…
Black Ink hit the nail on the head! Maybe Ms. Volman will respond to Black Ink. She is the expert on this now.... right?
jigmeister said…
I thought the premise was that he had already plead guilty. Why are we worried about who can testify to anything? Is there something more neferious going on here that trumps the judicial confession, something not known at the time of the plea?
Anonymous said…
The only thing nefarious going on is that these types of cases expose their ignorance more than others. Rather than leave these cases to the experts who have handled these cases for years, they are now dismissing them. Their benefit is that if they don't file it, it can't hurt them. Lykos fiddles while the county burns.
Anonymous said…
When you fail to give statements from witnesses that show dead couple ran stop sign to the defense, and someone finds out and then tells someone that can do something about it, this happens.
Anonymous said…
Whew 10:27!
Let's just give these Brady folks 100% credibility. Screw the appellate process. Who needs a new trial when it's just so much easier to dismiss.

DA motto for Harris County 2009-2012:
When in doubt throw it out!
Anonymous said…
Statement Regarding Sergio Gonzalez Case

Patricia Lykos, District Attorney
Harris County, Texas
October 19, 2009
Donna Hawkins
George Flynn
Bill Murphy
713) 755-3320
Statement about the Sergio Gonzalez Case
The Harris County District Attorney's Office strives to do the right thing. This is not always easy, politic or popular.
With respect to the case of Sergio Gonzalez, we dismissed the criminally negligent homicide charges against him last week.
After the plea was entered, senior prosecutors raised questions about the outcome of the case and the evidence supporting the plea. A thorough review of the file revealed there is evidence that Mr. Gonzalez was speeding and that the driver of the other vehicle, Leon Roberson, failed to yield the right of way at a stop sign.
The District Attorney's Office is mandated to apply the law as the legislature intended. To do that, we must consider the definitions in the Penal Code as written. The civil standard of negligence applies when a person fails to exercise ordinary care. Most traffic accidents occur because a driver fails to exercise ordinary care.
For conduct to be considered criminal, it must be so egregious that it is a gross deviation from the standard of care an ordinary person would use. Each case must be examined on its own facts. If an accident is the result of someone's failure to exercise ordinary care, the victims or their relatives can seek a remedy in civil court. If the accident occurs because a person's conduct exceeds that civil definition, the driver will be charged with a criminal offense.
This office has concluded that Mr. Gonzalez's actions did not rise to the level of a criminal offense.
The Gonzalez case is not the only case undergoing such a review. A small number of cases, including some involving auto fatalities, are being analyzed. As for similar future investigations, experienced prosecutors will review requests to file charges in such cases.
The prosecutors in the District Attorney's Office are very conscientious about their oaths to see that justice is done. The duty created by that oath does not cease when a plea is taken.
We are deeply saddened by the loss of Mr. and Mrs. Roberson.
No one should interpret the outcome of this case as a softening of this office's commitment to seek punishment of those who commit crimes and leave victims in their wakes. Seeking to address wrongs perpetrated on victims and punish lawbreakers remains this office's highest priority.
Last Updated: 10/20/2009
Acts 20:24 said…
The agreed motion for new trial says that Brady evidence was withheld from the defense. Any insight?
Confused Citizen said…
Donna, George, Bill et al @ 7:40 AM,

"The District Attorney's Office is mandated to apply the law as the legislature intended. To do that, we must consider the definitions in the Penal Code as written."

1. Will this standard also be applied to the DIVERT program?

"The Gonzalez case is not the only case undergoing such a review. A small number of cases, including some involving auto fatalities, are being analyzed."

2. Will the Harris County District Attorney's appellate Division remain intact?
3. Will cold cases be deemed too difficult to pursue?
4. Will juries or closed rooms decide on the veracity of witness' testimony and other evidence?
Anonymous said…
Does this mean we have a green light to run over those pesky panhandlers after a shitty day at the office without worry of criminal culpability?
After all, the contributorily negligent beggars are a nuisance and shouldn't be in the thorough fares anyway, correct?
I shall print confirmation of this new edict in the event an arresting officer not be privy to the new DA jaywalking policy?
Thank you for the useful info and I anxiously await your reply.
Anonymous said…
"After the plea was entered, senior prosecutors raised questions about the outcome of the case and the evidence supporting the plea."

"Senior prosecutors" with respect to political position or experience and expertise? The two (2) don't match as they used to.
Anonymous said…
Are these "senior" prosecutors going to review all of the juvenile cases? With them across the street, who knows what shenanigans they are up to! Are these "senior" prosecutors going to look at all of the Welfare Fraud cases? I mean does Carl really have the expertise to make the proper calls? What about child abuse - excuse me - crimes against children and FCLD? You know, when the family recants, I think those pesky prosecutors just go too far and should dismiss all these cases. I know, there should be a MFNT filed on all recanting FCLD cases because those husbands are just misunderstood!
Anonymous said…
Thank goodness you all (the Harris County DA's Office) are not the prosecutors on the Skilling appeal or the Sanford case. OMG that would be a joke!
Anonymous said…
Thank goodness you all (the Harris County DA's Office) are not the prosecutors on the Skilling appeal or the Sanford case. OMG that would be a joke!
Xi said…
Does anyone not see the irony in Pat deriding the illegal aliens?
Anonymous said…
To the "senior prosecutors" at the HCDAO:

If a case is upheld on appeal will that be sufficient evidence of guilt or will that case also be subject to back room senior political analysis?
Will any cases reversed on appeal ever be re-tried in Harris County?
When a defense attorney files an appeal will you just dismiss it in the back room rather than risk it?
How about if a defense lawyer threatens to appeal--will that be enough for a backroom senior political dismissal or will the defense attorney actually have to file the appeal?
If a black defendant is convicted and there were no blacks on the jury will that case be dismissed in the back room even if the trial judge found no Batson violation?

"The prosecutors in the District Attorney's Office are very conscientious about their oaths to see that justice is done. The duty created by that oath does not cease when a plea is taken.
We are deeply saddened by the loss of Mr. and Mrs. Roberson...... Seeking to address wrongs perpetrated on victims and punish lawbreakers remains this office's highest priority."
Anonymous said…
Who were the senior prosecutors and have they read case after case sustained where speed was the issue. I am searching for a case I read where the court held that everyone knows speed kills. Something stinks.
jake77 said…
d.a.'s need to stay out of police scene investigations and remain in the office to try to make a decision on whether they can get a conviction before they take a charge...thats what they are good at.
Anonymous said…
You're not going to belive this but here goes.
I did a little coke this afternoon and got all jacked up and didn't feel like going back to work so I headed home. I had to pee really bad so I was speeding. Not too terribly f*cked up or fast since I was able to slam on the brakes pretty hard before crushing a legless guy in a wheelchair who was in the middle of the damn street on the corner of Main and Texas for God's sake. Anyway, the Po Po said I was only going about 57 mph when I whacked the dude. I guess they based that on the trajectory and mutilation of the corpse. I informed the officer of the DA's new no fault policy on running over and killing careless motorists or pedestrians but apparently word hasn't made it to the patrol guys yet.
So, how much is your retainer for this little inconvenience?
Anonymous said…
Anon 4:41,
The real question is whether or not you were using your cell phone when you killed the guy in the wheelchair. No phone you're golden but if you were chatting on the phone you're looking at murder,baby. But hey, either way the odds of you actually going to trial are pretty small.
Remember Pat's Rule of Law: Money talks and bullshit walks.
Anonymous said…
It looks like their stupid decisions are coming to light. Ted Oberg did a gog story tonight on 13 and Leitner wouldnt even answer the questions. He probably did not know the answers:

Anonymous said…

1. senior prosecutor = a person over the age of 70
2. diversity = people of different European ancestry
3. DIVERT = steer wealthy friends of the judge away from criminal convictions for DWI
4. exculpatory evidence = a method to blame somebody else for our screwups
5. final conviction = the time period after conviction but before the judge realizes a connected person has faced justice
Anonymous said…
"For conduct to be considered criminal, it must be so egregious that it is a gross deviation from the standard of care an ordinary person would use."

The ingestion of cocaine and alcohol prior to getting behind the wheel of a speeding vehicle is NOT so egregious that it is a gross deviation from the standard of care an ordinary person would use? Is that the new policy of the DA's office? What if I were to rob a bank and kill someone? Would I be charged with Aggravated Robbery or Capital Murder? Or would I even be charged at all? My intent was to rob the bank. The fact that I killed someone was incidental.
Anonymous said…
anon 10:01,
Given your hypo. the ADA would:
a.) plea you down to shoplifting
b.) if this was your 1st offense and you were not Hispanic a DIVERT offer would be made
c.) if your defense attorney was properly connected and DIVERT was too onerous your case would be dismissed

Any other questions?

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