Surgin' Diversion Coercion

 Posted on July 29, 2009 in Uncategorized

It's against my nature to continue letting Houston DWI lawyer Paul Kennedy pick the low-lying fruit of the Harris County DA's new DIVERT (the acronym, as I understand it, stands for "maybe this will make the voters love us") DWI diversion program.

This program is prosecutor Roger Bridgwater's baby. I believe Roger's heart is in the right place. He is trying to help people, but despite the best of intentions, the program is an excrescence. As Paul points out, it's "justified" by a bunch of contextless statistics. Its planned implementation is highly coercive: first offenders who decline to participate in the program or take probation will be offered 30 days in jail. And its effectiveness is purely speculative.

Pat Lykos announced the plan before it was fully formed. Roger Bridgwater and Pat Lykos had no idea what they were doing when they met with the press about the program, and it was clear from Roger Bridgwater's "informational" meeting with the criminal defense bar today that the Harris County DA's Office still doesn't know what it's doing, any more than it did when it was decided that misdemeanor prosecutors would try whale cases.

Roger Bridgwater thinks that the statistics explain why there are so many roadway deaths. Based on what he sees in the numbers, and with no evidence, he's created a program that he thinks will solve that problem. Roger is using the misdemeanor courts as a laboratory for his experiment in amateur social engineering. Fair enough, except that he's using real people charged with DWI as his unwilling guinea pigs.

In designing the experiment, Roger didn't seek input from the criminal defense bar. If he'd wanted to figure out how to create a treatment program that people charged with DWI would find more palatable than a jury trial, he would have asked the lawyers who will be advising those people on whether to enter the program or not. Apparently he didn't seek input from the prosecutorial bar either; I would've thought that lawyers who had prosecuted lots of DWI cases might have a valuable insights or two.

The DA's Office did, however, vet this with the judges in what Roger called an "informational meeting" but described as ending in an agreement on how the courts would proceed following a violation of the DIVERT contract.

Are the judges "on board?" Was the meeting an improper ex parte contact? (While they weren't discussing any one case, they were discussing every first DWI case without counsel for the accused, or even a representative of the defense bar, present.) The public information requests should prove interesting. Any judge who has agreed that 30 days is the minimum sentence for a first DWI is disqualified (by prejudice and the appearance of impropriety, if not the actual inability to follow the law) from hearing such cases.

The draft DIVERT agreement is six pages long and onerous. It requires an ignition interlock(of a type that only one company offers... hmmmm) for the first six months. Probable cause is enough to terminate the agreement. There will be lots of high-volume lawyers who see this as the best thing since deferred adjudication for resolving cases without actually, y'know, trying, but I don't see myself encouraging clients to sign it unless the State has them dead to rights and they want to be at the mercy of the Harris County DA's Office for another two years.