Accidental DIVERT Coercion

 Posted on February 08,2010 in Uncategorized

Houston criminal-defense lawyers Herman Martinez and Dane Johnson report separately on the state of the Harris County DA's DWI DIVERT program. Here's Herman:

This week the HCDAO decided that a defendant needs to decide if they want to be considered for the DIVERT program by their second court setting. This is patently unfair and lends itself to the biggest complaint against the program, that is coercive.

And Dane:

The new policy mandates that a person arrested for a Harris County DWI must make a decision about his/her case within a month of the DWI arrest. Mind you, no person charged with any other offense in Harris County has to make a decision within the first month – only those that may or may not want to participate in the DIVERT Program will be required to make that life altering decision this quickly.

Both wonder why the change, and suggest opposite reasons. Herman postulates that it is because the HCDAO is trying to get more people to reject DIVERT (which will be the ultimate result); Dane asks whether it is because the Harris County District Attorney's Office has lost so many DWI cases recently, and doesn't want the defense lawyers to see how defensible a case is before making the DIVERT decision.

One of the critiques leveled at low-bid lawyers (not to mention court-appointed counsel) in Harris County is that they too often plead cases out on the first court appearance. Rarely does the offense report tell enough of the story for a lawyer to know the value of the case. The plea on the first appearance might be a great deal or it might be a terrible one; nobody can tell.

(Long parenthetical: yes, many clients are jail-averse and insistent on taking time served or probation or anything else that will get them out of jail immediately regardless of the strength of the State's case or the long-term consequences of the plea. There's nothing a lawyer can do to stop a client determined to take the State's first offer, but she can try to get the client out without a plea-for example, on a PR bond-and, failing that, can ensure that the client understands very well that he is giving up the possibility of a much better outcome by pleading guilty.)

The same is true of a resolution reached in a DWI case on the second appearance: it might be a great deal or it might be a terrible one. Lawyers defending DWI cases will have to pick up the pace a bit and review videos with clients before the clients' second court appearances, but often the DWI video (scene or station) is not available (that is, has not been turned in to the DA's Office by the police officer) before the second appearance.

Signing up for DIVERT is not a decision to be taken lightly. It is, as Dane notes, life-altering. Dane and Herman both wonder at the DA's motives in forcing people to make this decision so quickly, and without necessarily having all available information about the case. I don't think there is any motive.

There are a number of things that Pat Lykos and company have gotten right in the last year-copies of offense reports, treating trace cases as parapernalia cases, backing off on seeking vengeance in car crashes, to give just three examples-but as many things they've gotten wrong-the Whale policy, no probation for illegal immigrants, and just about every story on Murray's blog.

If one were inclined, one might be able to pick out some nefarious pattern in the various kooky ideas the Harris County DA has come up with, but the truth is that there is no rhyme or reason. The DA's Office is not trying to get more people to reject DIVERT, and is not trying to prevent DWI trials. Rather it's like a monkey at the controls of a nuclear reactor, pulling levers and pushing buttons without a thought to the consequences.