Monday, February 20, 2012

McLennan DA implements 'one size fits all' DWI deals, but a deal takes two

In Waco, McLennan County DA and John-Bradley wannabe Abel Reyna has implemented a new policy for first-time DWI defendants that "prohibits DA assistants from negotiating plea deals and sets probationers up for failure with higher fines and related fees," according to a story forwarded to me by a reader by Tommy Witherspoon at the Waco Tribune Herald ("DA's DWI policy under fire from area attorneys," Feb. 19, behind paywall).

Remarkably, "The policy is so unpopular that attorney Damon Reed, Reyna’s former law partner, asked a judge last week to order the district attorney’s office into mediation with Reed’s 23-year-old DWI client because of Reed’s perception that the district attorney’s office won’t negotiate or treat defendants fairly." A judge denied the motion, but attorney Damon Reed, who is Reyna's former law partner, criticized new DA's approach as a "one size fits all" policy. Reported the Trib:
Reed said the result of the new policy is not justice and only will force defendants to plead “open to the court” seeking a better deal with a judge. In “open” pleas, offenders plead guilty and ask judges to set punishments without the benefit of plea agreements.

The other option is to go to trial, further clogging court dockets and costing taxpayers more to operate the judicial system, Reed said.

“Abel is clearly doing all this for political purposes,” Reed said. “I don’t understand why he has a budget for so many assistant prosecutors when they are not allowed to do their jobs. I’ll buy him a rubber stamp and he can lay a half-dozen prosecutors off and save the county a whole lot of money.

“The point of it is so the district attorney can look like he is tough on crime and the judges will artificially appear that they are being soft on criminals if they take into consideration any of the circumstances of the individual in shaping justice for that individual.”

Reyna said he has set a standard offer of 15 months probation and $1,000 fines for those charged with their first DWI. Offers are higher if there are aggravating factors, such as an unusually high breath or blood-alcohol test, causing a wreck or being belligerent to the arresting officer.

The maximum penalty for a first-time DWI is two years in jail and a $2,000 fine.
Regular readers know, of course, those only include the criminal penalties. There is also a civil surcharge, which for DWI defendants can be quite high and have caused a decline in the DWI conviction rate statewide.

The issue is, at what point do penalties become so severe that defendants would prefer to just sit out their sentence in the county jail than agree to probation, which is what happened in Harris County when the previous DA, Chuck Rosenthal, tried to turn up the screws. And as attorneys in the story pointed out, a big part of the problem is expensive DWI "surcharges," as well as probation fees, costs for treatment, urinalysis, any required classes, etc.:
Reed and other attorneys say a typical DWI defendant placed on probation will incur fines, probation fees, state surcharges and possibly other charges that easily can total $500 or more a month.

“If I slap a poor man 20 times to get his attention, I guarantee you I had his attention after the first time,” Waco attorney Mike Roberts said. “If I give him a fine he can’t pay, it is not in the best interest of justice because he is not going to be able to pay it, you are setting him up to fail and the taxpayers will have to pay to keep him in jail and to pay for more jury trials. It is nothing more than political posturing.”
Will defendants in McLennan County pay through the nose, or will this result in clogged dockets, demands for trials, or even pleas to jail sentences? I suppose, looking at it through the prism of local politics, at least that last option would provide some extra bed days for these guys, which a cynic might imagine could even be the point.


Humble wife said...

My husband worked for our local DWI office(NM) and it is true the fines are heavy for most of those convicted.

If only our politicians weren't always grandstanding things might be done correctly.


Anonymous said...

Take all the first-timers to trial. Then you'll start getting the real deals.

rodsmith said...

yep i agree 10:14 these days take EVERYTHING to trial.

and i STILL hate this new word verification sytem

Prison Doc said...

Ditto on the word verification.

Never really understood the system's value anyway.

Anonymous said...

Politicans Logic:

Something MUST be done!
This is something...
...therefore IT must be done!

Anonymous said...

And if can be done such that it enhances government coffers ALL THE BETTER!

Don said...

The maximum penalty for DWI 1 is 6 months in county jail, not 2 years, and up to 2000 fine. It is not a DWI 1 if it has some of these enhancements, such as minor in car. (someone 15 or under). Then it becomes a state jail felony. But a plain ol' first offense dwi is a max of 6 months, in theory. In practice it is 1-2 years probation.

Anonymous said...

Big deal. The default offer on a DWI-1st in Travis County is 24 months' probation, but you can usually bargain it down to 18 mo. Where's the outrage there?

I guess everything is relative.

Don said...

commissanon 8:48. I agree. 15 months probation would probably be a pretty good average across the state. the automatic $1000 fine might be the rub, or it might be that the defense attorneys in some counties are accustomed to getting their clients pled to something other than a DWI. I don't agree with this practice. If you can make a DWI case, it should be prosecuted as a DWI; if not, dismiss it. Like you, I fail to see the big deal here, after dealing with hundreds of DWI defendants in my education and counseling career.

Anonymous said...

I've had two DWI's. The first one was in Jefferson county and cost me 20 days in the pokey. The 2nd was in Montgomery county and I spent 10 days in the county lockup. I'm now forced to drive without a license or insurance. And since I couldn't get a job because I had no driver's license, I was forced to file a disability claim and now must survive on $1600 a month from the government (I made 130K annually at my last job). But what really pisses me off the most is when I read every single day about cops who get off for the very same thing I did. The system destroyed my life and I'm supposed to just lay down and take it? I wouldn't even be mad if everyone was treated equally, but that's not the case. Someone needs to do something big that will draw attention to just how unfair the system is. My blood boils hotter with each passing day.

A friend said...

McLennan County criminal courts (2 felony, 2 misdemeanor) are becoming backlogged with cases that were previously settled with plea deals.

Going for more than a year probation on a misdemeanor first offense makes little sense. It puts a huge strain on the budget of young people who cannot pay the fine, pay the probation department, keep a job, and feed, clothe and house their children. Probation interferes with that tremendously, by insisting on weekly or biweekly appointments that take half a day or sometimes more, resulting in employers giving up on the employee. As one who takes court appointments in child support court, a person making $10 an hour, forty hours a week, cannot pay child support and probation and pay 1/2 of a shared apartment rent and utilities.

Anonymous said...

As a defense attorney in McLennan County myself I find that I am more and more forced with making an open lea to the court because the power to negotiate based on individual circumstances has been stripped from the assistant district attorneys who offer the deals they are now being mandated to offer. The additional kicker is that this only works in the misdemeanor court level because in the primary felony court, the judge is also a former law partner of the new DA seeking to make a name for himself. It is my opinion that they are both motivated by political aspirations rather than seeing the defendants as people who may have made a mistake and the harder they can look on crime and criminals the better they believe they will do in the upcoming elections, because, after all, the felons don't get a vote!

Don said...

anon 9:29: if McClellan County CSCD has 1st offender DWI on weekly or bi-weekly visits requiring a half day or longer, then the problem lies, at least in part, to the McClellan County CSCD. I've never heard of anything like this, and Lubbock is bigger than Waco. If they reduced the standard offer to 12 months instead of 15, would it really make all that much difference?
Probation on 1st offense should require a monthly visit unless there are abnormal circumstances. Usually takes an hour or so in Lubbock. I think it's the large fines and the surcharge that are more likely to put a strain on first offenders. The $1000 standard is too much, on top of a $1500 surcharge to the state.

Don said...

Anon 9:53: Of course it is politically motivated. It all is. Always has been, and always will be, as long as we elect everybody, including judges, prosecutors, etc. Politics shouldn't dominate the Criminal "justice" "system", but it does. Nothing new.

rodsmith said...

i'm with don here 9:53 plus if this is true!

"The additional kicker is that this only works in the misdemeanor court level because in the primary felony court, the judge is also a former law partner of the new DA seeking to make a name for himself."

The first thing you should be saying when you walk into the judges court is "your honor here is your copy of my motion to the appellape court for a change of venue since your hands are dirty in these cases!"

Then state you will not be part of a kangaroo court and then turn around and walk out!

Don said...

altars oduaryou
Don't know why I insist on calling it McClellan County when it clearly is not. It's McClennan. Any help will be appreciated.

Don said...

altars oduaryou Haha. That was my word identification thingy. Don't know why it printed it. But I've figured it out. Just punch random keys until something works.

Gritsforbreakfast said...

Don, et. al., what they're doing on word verification is IMO pretty cool: crowd sourcing the transcription of historical texts. The nonsense word is the one that judges if you're human. The real word contributes to transcribing some manuscript in the "cloud" along with a zillion other people. It's actually a clever idea. If we need word verification (and if you saw the quantity of comment spam, you'd know we do), why not have it contribute to something useful?

Anonymous said...

So if the DA's plea offers are too high and the Judges are too extreme on "open pleas" why aren't the defense attorneys advising their clients to exercise the right to have a jury set punishment. Could it be that they know a jury may think a "first time offender" is not entitled to probation and access 6 months and a $2000 fine?

MADD said...

to 2/21/2012 09:25:00 AM.

The system did not destroy your life. The system did not make you drink and drive. You did all that it was your choice that you made. Thank you lucky stars that you did not take a life when you made that choice. So suck it up princess you made your bed now lay in it.

Anonymous said...

DWI Offenders are dangerous period. 24 months probation isn't too long of a sentence. It is reasonable and it is doable.

Even if a Jury found a defendant guilty and set sentence at 6 months County Jail, the Judge still has the authority to probate the sentence.

Defense Attorneys are more crying about "not being able to negotiate" because of wounded egos than because of anything else. Public Safety needs to be considered by defense attorney's just like it needs to be considered by everyone else, that is part of the "Justice".

If I was a Judge hearing an Open Plea for a DWI offense, I would have a "one size fits all" for every open plea. Why not?

If all you received was less than 45 days jail total for DWI-1 and DWI-2, well, that is a good deal. It is over. Regarding the ruining of your life, that is BS. I have been convicted of DWI twice, spent 30 days in jail because of it, served 3 years probation combined, and now have successful career, have a TDL, and know that the behavior is a thing of the past.

DWI is totally preventable. if you were arrested for DWI, you aren't a victim. If you are defense attorney for a DWI Offender, you aren't a victim either. If you prosecute DWIs, it makes sense to have a recommended sentence that is common across the board for every offender. If you can't prove the case, dismiss it.

If you are a Judge,it makes sense to have similar if not identical sentencing practices for every offender. If you don't like the plea agreement, reject it. It is your name on the Judgment, not the defense attorney's or the prosecutor's name on the Judgment.

If you are a probation officer, determine the risk and needs and supervise appropriately.

Anonymous said...

My first offense was a DUI, which evolved into a Felony Failure To Render Aid and intoxication assault. I was a public figure with a good reputation. I rarely drank and never drove under the influence of anything that would impair my ability to drive. My accident was the result of me "sleepdriving" after taking Ambien. I was on the couch dozing off, the next thing I remember is being on the side of the road, disoriented with a wreckked vehicle. I didn't know until the following day that I had crashed into another car. I know, it sounds like BS, but the toxicology report backed up my explanation. I was told Abel Reyna was the best, so I chose him to help me. I wanted to make a public statement and a public apology. I was told to "let the story die, leave town and keep quiet." I was terrified and I trusted my lawyer to look out for my best interests.
I believe, he didn't want to hurt his chances of winning the D.A.race by letting the public know he was defending me. He was angry at me for telling a local tv station he was representing me. He told me to "hang up immediately and say nothing" when contacted by the media. He won the election, I lost everything. The public saw me as a drunk driver who wasn't a bit sorry for injuring a young woman and endangering her 4 year old little girl. I'm so sorry. Everything I worked for is gone and paying and complying with the conditions of 10 years of probation is a daunting task to say the least. However, I do realize that my small life as a local radio personality was nothing compared to his political aspirations and thankfully I didn't get in the way of him winning and implementing his wonderful changes. Yes, that was sarcasm.