Friday, May 25, 2012

The Appropriate DIVERT Candidate

One of the many complaints that people have with the illegal DIVERT program established by Pat Lykos at the Harris County District Attorney's Office is that it is entirely too arbitrary in who it does or does not allow into the program.  This begs the question, "What characteristics makes one a good candidate for DIVERT?"

Well, apparently Erick Erminger was a good candidate per the Lykos Administration and aspiring Judge Roger Bridgwater.  He was screened and placed on DIVERT by ADA Roger Bridgwater on May 27, 2010 and had his case dismissed on June 13, 2011.

I guess he was one of Lykos' "success stories" until this happened.

Per KHOU's website:

According to police, Erminger called his girlfriend, Jennifer Lynette McKinley, late at night on Friday, May 18, asking her to come pick him up from a bar, because he was too drunk to drive.

Once McKinley brought Erminger back to their apartment, police said they got into a fight, and Erminger killed her.

You could argue that his DWI dismissal is unrelated to the murder and you may possibly be correct.

But it is nice to have some idea what the criteria is for DIVERT acceptance.


Anonymous said...

yep, you can "what if" this one all day, but bottom line is, he didn't get effective treatment in DIVERT for his drinking, or for his emotional issues, and clearly wasn't taught any kind of lesson.

Anonymous said...

I've had client after, after client denied entry into DIVERT because of minor, prior arrests, class c tickets or invalid license at the time of the DWI arrest. This guy has a prior DWLS on his record and he got accepted. Arbitrary and capricious.

Anonymous said...

She'd claim it as a win because he didn't drive.

Anonymous said...

Murray I love you like a brother but this is the biggest stretch of desperation to date.

How would you explain a patient under close M.D. psychiatric management who is compliant with his meds and therapy sessions, gives no indication of homicidal or suicidal ideations yet kills 15 people at a McDonalds and then blows his head off?

To imply that DIVERT should be tantamount to a guarantee that any and all its successful graduates will forever after live a 100% perfect life free of any criminal behavior is beyond nonsense and we all know that.

Anonymous said...

That is low hanging fruit Murray. Even if he had been convicted he would still have been out and most likely committed this crime. This has nothing to do with DIVERT, and you certainly know it.

I think you'd get more traction out of the DWI her investigator had but was dismissed.


Anonymous said...

If only the Chronicle had a set of balls to write a meaningful piece, the voting public could begin to appreciate the depths of Lykos' abject incompetence, Good job, Murray.

Anonymous said...

Somehow, over the course of this weekend, this will become Anderson's fault and the Harris County "politico" will link Lykos the "success story" that he had the foresight to call his now dead girlfriend and NOT DRINK & DRIVE!!

She can spin her way out of a lot. It will interesting to see how she does it, IF she does address it all. She may just take the fifth on this one and say it wouldn't be appropriate to comment as charges are pending.

Can Wednesday morning come fast enough??

GO VOTE, Houston!!!

Just Sayin' said...

Murray this case actually supports DIVERT. The individual you referenced was treated at DIVERT to deter him from driving a motor vehicle on the public roadways while impaired secondary to the over indulgence of alcohol which is exactly what your facts show he did.
As far as I know Lykos never claimed that DIVERT was intended to deter individuals from rape, robbery, fraud, prostitution, money laundering, gun running, terrorism, animal cruelty, having sex with really ugly women and/or murder.
Am I missing something?

Just Sayin'

Anonymous said...

Come on Murray, you are better than a post like this.

Keep it coming though, everyone swings and misses every now and then.

Anonymous said...

I'm no fan of Patsy, but this one isn't her fault. I'm pretty sure that throwing the book at his DWI wouldn't have fixed this one.

Actually, with as many people are on or have been on DIVERT, (I heard it's something like 1,000 at a time), I'm surprised there haven't been more stories like this.

Anonymous said...

Are you supposed to drink alcohol when you are on probation? Why wasn't he on probation? If he was originally sentenced and placed on probation in 2010-2011, what would have happened back then if he violated any terms of probation in the passed two years? I don't live in Houston so I don't quite understand the scenario. Am I supposed to believe this was his first time to drink and cause a stir since 2010?

Just Askin'

Murray Newman said...

Some of you are missing my point. I'm not blaming DIVERT for this murder.

I am pointing out that their screening process is ludicrous. They kick out candidates on a whim and yet a guy who apparently becomes murderous when intoxicated sails right through. Additionally, if Lykos is tooting her own horn on a lack of recidivism, this seems to contradict that.

Even if you make the assumption that DIVERT is a legal program (which it isn't), it is still administered in (as an earlier commenter noted) an arbitrary and capricious manner.

Anonymous said...

No, he didn't kill someone while driving home drunk from a bar.

However, this death still appears to be alcohol-related.

She picks him up from a bar because he is DRUNK and he kills her when they arrive home.

So - he's still getting plastered. Still has the addiction. Do we really think this is the one time he DIDN'T drive drunk and called someone?

The point is that DIVERT is supposed to be for first-time offenders - people who made a "little mistake" not chronic or seriously addicted folks.

(Or people with previous convictions - except for this guy)

I bet this guy falls in THAT

Besides - just goes to show that those DWI people might be on to something. They say that your average "first-time" DWI has driven drunk more than 75 times.

That's the point of taking DWI seriously and not offering deferred, etc.

Anonymous said...

I promise you that if Lykos could tie a story like his to Anderson, she would. Jennings wold be all over it as well. This is absolutely valid and should be pointed out. At the very least he is a DIVERT recidivist. It clearly points out the imperfect and arbitrary screening process. Good job Murray.

Anonymous said...

The point this episode raises is this: Lykos sold this program in getting people "treatment" but NOBODY in the media has ever really looked at what treatment people get and the recidivist rate. Forget about not getting a DWI, do they still have a so-called drinking problem. It is a legitimate question to ask regardless of whether it is election day or not. And it clearly is a very valid question for Roger in the general election.

Anonymous said...

So is Roger going to throw the book at the defrndant, a hard pre-trial diversion or really hard defered?

Anonymous said...

Love the comments after....

Anonymous said...

Don't worry...this guy's gonna go down. Clint Greenwood's gonna prosecute him.

Anonymous said...

Setting aside the legality issue (which you can't really - but, just hear me out), the bottom line for me are three things:

1) What is the goal of the program?

To reduce DWIs?
To reduce DWI fatalities?
To reduce drinking?
To reduce addiction?

2) Based upon that GOAL, what are the results?

3) HUGE - Can we say the RESULTS are based upon the program?

We really don't know. The outcome data is anecdotal. There has been no true scientific study of the results. A scientific study would involve the use of a solid research method that would tease out whether the results were based upon this program or not.

For example - how do we know that using this same population of DIVERT participants, we wouldn't have the same results if they just dismissed the case outright? Maybe simply being arrested is the thing that changes future behavior? How do we know it is the PROGRAM? You can't simply look at the results (decreased DWIs for example) and say the program CAUSED those results.

If the goal of the program is to reduce DWIs, then this guy is perhaps a success.

If the goal is to reduce drinking, he is a shocking, dismal failure as this poor woman's death appears to be alcohol related.

It also points out a question we might ask when analyzing the data - not only asking about are future DWIs, but also ANY substance-related crime.

Anonymous said...

Murray - you have a really good point.

Is the screening process for this program reliable and applied fairly?

This guy appears to have a serious alcohol problem.

Is this the type of guy who deserves a free bit of the alcohol-soaked apple?

Anonymous said...

Murray's point is a good one. I had a diabetic client that was accepted into the program. He was required to enter an out patient program at great expense to himself. One factor that is considered is whether someone continues to drink in spite of negative health consequences. There was no indication that my client's drinking caused any diabetic complications. If these folks are not accepting alcohol or chemically dependant clients why are they often required to enter treatment...treatment for a condition they are not supposed to have if admitted into the program. Another client got 2 dwi's within weeks after completing divert due to pain killers for a back injury. The divert dwi was a regular alcohol case. Bridgwater enterfered with pleading on the cases because it made the program look bad even though my client had legit injury and was arrested going to and from work and 4th amendment issues in one of the cases. During the year it took trying to get to trial he got a third. All three events still untried we were allowed to plead to misdemeanor B dwi on all three with a ninety day sentence. No community supervision, no treatment required no assurances that my client will get the tools needed to make sure he deals with his pain in ways that avoid addiction to narcotics. Just the threat that another occurance would be a felony charge. So we have someone with 4 actual dwi's that the state has not insured that the defendant will appropriately deal with the issue. The client is actually a hard working, non recreational addict that has a family that I believe will help him get his addiction under control. The ADA's at the trial court level were very reasonable in how they handled the cases, but effectively had their hands tied by Bridgwater in how they were allowed to plead it out. Convictions on all counts were more important than insuring that the defendant was required to deal with the addiction. We actually had an excellent chance of winning two of the three cases at trial, but were concerned about getting a maximized sentence on the loser case and so we accepted the 90 days for all three dwi's (since he could not make his high bond and would serve more than this waiting on trials), resulting in 45 days actually served in total after 4 total dwi charges. And Bridgwater wants to be called judge even without being elected yet.

Chip Lewis said...

Shocking!!! The Chronicle actually let Rogers write a meaningful piece illustrating another Lykos' failure. Not suprisingly, they buried it in the blog section. After all, devoting the appropraite coverage would be too harmful to the politician they endorsed for top prosecutor.

Unfortunately for the family of this victim, this case is perilously close to the "nightmare scenario" all true prosecutors fear concerning DIVERT. The Texas legislature saw fit to make DWI-related offenses one of the first type of cases where there must be a conviction (no deferred sentence). A conviction cannot be erased (expunged) and becomes evidentiarly available for any subsequent prosecution of said defendant. Yes, a jury gets to hear that said defendant was previously convicted of DWI! Under Lykos' DIVERT, the jury will never know that said defendant was previously convicted of DWI.

This case illustrates, under Lykos, this "nightmare scenario" is not illusory. It will happen given time, and some family will live the nightmare Lykos created through her DIVERT.

Jack Sweeney, show some journalistic integrity and let your writers enlighten your readers with the truth of this matter.

Chip B. Lewis
2120 Welch
Houston, Texas 77019
713-523-7887 Fax

Anonymous said...

Chip: Journalistic integrity, in general, is an oxymoron with the American press, and with the Chronicle specifically. The Chronicle does a diservice to its ever decreasing number of subscribers by protecting Lykos; in part that protection was apparently in exchange for her supporting the shield law. If they really believe that she is the best candidate, however, integrity no longer is the only issue. As with Lykos the issue also becomes one of acuity.
Calvin A. Hartmann

Anonymous said...

They should have a DIVERT Program for bloggers who censor postings.

David Jennings, editor at Big Jolly Politics, could be the first enrollee for blogging under the influence.

But with David Jennings lying and shilling for Lykos’s lying, I am sure Lykos would cover up all evidence of wrong doing. She has shown she is good at this, covering up.

Whether it is lying, covering up evidence or just plain refusing to follow the written law, Lykos has shown she stands for corruptness, not the law.


Michael said...

If only Pat Lykos's foresight was as good as your hindsight.

Anonymous said...

I just heard of the passing of Suzanne McDaniel. Many bloggers to this post probably are not familiar with her. However, Suzanne's life was dedicated to insuring the rights of the victims of crime and she could fairly be described as the premier victim rights advocate. The well-earned recognition which she received over the years both locally and nationally was but a meager testament and a small recompense in "reward" for her contributions to the victims of crime.
Calvin A. Hartmann

Anonymous said...

Calvin, Suzanne was a treasure. A truly beautiful person in ever sense of the word. I was very sad to hear of her passing.

Edward D. Porter

Anonymous said...

Michael-I just wish Lykos would stop lying, never mind foresight or hindsight.

Anonymous said...

Why is a victims rights advocate needed, if the prosecutors are doing their jobs?


Anonymous said...

Why, you ask?

In 2003, my 17 year old son was killed by two gang members who shot up the wrong house. It took nearly a year for an arrest to occur. I contemplated suicide at least 3 times during that year. I had no one to talk to. When indictments were finally issued, I gained an advocate. Her name was Wanda Greenwald, and she worked for the Fort Bend County DA's office as the Victim's Coordinator. She went with me to court and sat with me. She held my hand when I thought I was going to explode inside. When I had questions, I would call her. When I just needed to cry, I called her. She helped me connect with other families who had experienced similar loss. I can't tell you how cathartic it is to sit down and share your burdens with someone who has walked a mile in your shoes. Wanda was such a rock when I needed her. I did NOT want the prosecutors to hold my hand when I cried or to sit with me in court when I needed a companion. They were very sympathetic and willing to talk to me, but I wanted them to focus on only one thing: sending the sons of bitches who murdered my child to prison for the rest of their lives. And, that's exactly what they did. People talk about "closure" like it's checking off a box on a page. For me, their is no closure. There's grief that is raw and intense (birthdays, holidays, etc) and there's grief that is present (the rest of the time). I don't know how I would have survived those years without Wanda. And, I can only imagine that Suzanne had a similar effect on those that she encountered on a daily basis.

So, to answer your question, that's why.

Anonymous said...

Dear parent of 17 year old,

Thank you for sharing your story. It made me cry. What a lovely tribute to Wanda.

I cannot empathize with your loss. But, as a parent, I can empathize about the love and fear one has for their children. i can only imagine how never-ending and heavy your burden it must be.

Bless you.

Anonymous said...

I cannot wait for this election to be over. At least Patsy's lies won't get broadcast to easily duped morons so frequently. Ugh what a piece of crap she is, as are her shills.

Anonymous said...

8:31, I know there are many personal stories out there like yours. And I am terribly sorry for your loss, and cannot imagine losing a child.

'Victims rights' are a nisnomer, however, and those same services should be provided, if at all by the state, by another agency.


Anonymous said...

To Rage:

Sometimes being KIND is not only the better choice over being RIGHT, but it is also the more difficult choice.

Give it a try, if you can.

Anonymous said...

To Rage:

I don't know you nor do I want to. Your comments about victims rights support make it clear you have never suffered a life changing loss.
To Anon 8:31 -
I'm glad someone was there to shepherd you through the trial. The hole gets smaller after many years....

Anonymous said...

@Rage. You are either showing your age or your Harris County- or perhaps civil-centric view. Most counties use victim coordinators very effectively, from scheduling minutiae which is a godsend to an overburdened ADA, to emotional load that is just too much for ADAs, to notifications about pleas and probation and that kind of thing that ADAs shouldn't have to do. (Not a misnomer by the way because it is an unfunded mandate to notify victims about stuff, Rage.)

Victim Rights Coordinators (by whatever title) are critical, and Harris County should have MORE not less to help those struggling Felony #3s. Why do we have licensed attorneys doing this stuff?

Anonymous said...

I don't know you nor do I want to. Your comments about victims rights support make it clear you have never suffered a life changing loss.

As my Republican friends are fond of saying, "please show me where victims rights is in the Constitution."

I know Texas has a "crime victims' bill of rights". Not the same thing though. Sounds like the things done by a victims rights coordinator are things that would be better handled by various social services, or even friends. That's who I would go to if I suffered such a loss.


Anonymous said...

lol...neither the ADAs nor the def attys like DIVERT. Taking $$ out of their pockets. It worked fine for my only DUI client.