Choosing gifts for the amnesiac, and other tall but true tales

A few Sunday morning odds and ends:

Debating the legality of D.I.V.E.R.T.
The 14th Court of Appeals said a Harris County judge was within his realm of discretion to refuse to use DA Pat Lykos' much-heralded D.I.V.E.R.T. program on DWI cases because it amounts to deferred adjudication, which is illegal for DWI under current Texas law. Does that mean the program itself will be overturned as illegal in and of itself on appeal? Not necessarily. Mark Bennett thinks Murray Newman overstates the legal import of the case and that David Jennings' take is too politicized, but between their various posts you can get a good sense of the issue. This is a strange one. As far as this non-lawyer can tell, D.I.V.E.R.T. may be technically illegal, but if the prosecutor offers it and it benefits the defendant, nobody is in a position to challenge its legality on appeal. Hundreds or even thousands of DWI defendants have been processed through the program. What happens to those contracts, wonders Bennett, if a DA is elected who thinks they were illegal? ¿Quien sabe?

Decked Out: Austin PD halls decked with expensive, distracting in-car computer system

When purchasing a new in-car video system, did City of Austin "officials fall for a system too expensive to buy and too impractical to use"? A former garage employee alleges in the Austin Chronicle that Austin PD essentially rigged a bid to favor a preferred vendor for expensive, in-car police equipment when a cheaper in-house solution was available. The purported whistleblower says APD created detailed specifications they knew only a single, preferred vendor could meet, but really they just needed extra battery power for vehicle video systems which could be done in-house, he says, on a much cheaper basis. Jordan Smith, as usual, provides an excellent, detailed account. Incidentally, having recently mentioned the issue of distracted driving at Austin PD as a large source of civil liability for the city, I was interested to see Jana Birchum's photo (at left) of the inside of an APD cruiser decked out with the new rig. Who wouldn't be distracted with all that gadgetry in their face? Moreover, what's good for the goose is good for the gander. If cops get to do this, how can you then criminalize texting while driving? There's a friggin laptop pointing at the driver with a QWERTYUIOP keyboard, no less!

Pressing prostitute for patronage procures prosecution for San Antonio police
In San Antonio, "A police officer accused of accosting an 18-year-old woman for sex after she was targeted for a drug arrest four years ago pleaded no contest Wednesday to one count of official oppression and will lose his Texas peace officer's license." The sentence of one-year deferred adjudication probation, though, means the conviction may eventually be expunged from his record - a courtesy unlikely to be extended to the 18-year old he coerced for her various offenses. Reading the account from the SA Express-News, it sounds like the underlying facts amount to using a drug-warrant as a pretext and coercion tool to solicit the the services of a prostitute on behalf of a fellow officer, who fondled the woman but was then rebuffed when he could not pay. The two cops then stood lookout on behalf of a third, unidentified "friend" who paid for oral sex. Another former SA police officer - the one who would've liked a freebie but couldn't afford it - is awaiting charges related to the same incident. You can only lean on folks so hard, I suppose, even prostitutes with outstanding drug warrants. I've often wondered how common this is. The incident reminds Grits of a study out of Chicago, discussed here, which found that 3% of all tricks performed by sex-workers operating independently (without a pimp) were freebies given to police for protection. Via Injustice Everywhere.

Abuse alleged at South Texas detention center
Bob Libal at Texas Prison Bidness lets us know about a recent media report I hadn't seen:

Last month, PBS's Frontline aired a damning exposé of the immigration detention system that focused on MTC's Willacy County Processing Center.

The show, which you can watch online in its entirity, reported a pattern of sexual and physical abuse by guards at the MTC facility.  Frontline correspondent, Maria Hinojosa, highlights stories of terrifying and repetitive abuse and harassment of immigrant detainees at the facility.

See a transcript of the show. Relatedly, from Slate/Alternet: "How private prisons game the system."

Newspaper sides with Harris DA on crack-residue policy
The Houston Chronicle editorial board sides with District Attorney Pat Lykos in the debate with police unions and their proxies over prosecuting felonies based on residue-level drug amounts when officers arrest someone with a crack pipe. See Grits' earlier discussion.

Please keep pretending the naked emperor is clothed
Border Patrol officers are fired if they voice critical opinions about the drug war.

Holiday gifts for the amnesiac
If anybody out there is looking for Christmas gifts for Judge Ken Anderson or former Williamson County Sheriff's Sgt. Don Wood, after their amnesiac performances in recent depositions, I'd humbly suggest books on mnemonics. A mind, they say, is a terrible thing to waste. Please suggest other possible memory-related gifts or mnemonic tips for the Michael Morton prosecution team in the comments.

Defense bar critiques suggestion for deferred adjudication on DWIs

Now that the defense bar has had a chance to review state Rep. Todd Smith's HB 189 - a MADD-endorsed bill that would allow deferred adjudication for first-time offenders (see earlier Grits coverage here) - several prominent attorneys are expressing serious reservations.

Mark Bennett at Defending People doesn't like the idea. He's argued in the past that Harris County's DIVERT program (which some have criticized as de facto deferred adjudication) makes little sense for defendants given that roughly 95% of Harris County DWI defendants who don't plead guilty have their cases dismissed or prevail at trial.

At The Defense Rests, Paul Kennedy at first thought the legislation seemed promising,. Yesterday, though, he looked more closely at the bill and declared he couldn't support it in its current form, but that "that a sea change may be taking place and that at some point in the near future a more amenable bill may be submitted."

After initially offering a more sympathetic view, Robert Guest now says the bill is "a con designed to trick unwary DWI defendants." It's a different breed of cat than usual "deferred adjudication," he notes, and mandates ignition interlocks on the first offense (I'm okay with requiring interlocks on the second offense; the first is unnecessary and unworkable).

My question to these writers and other interested readers: What specific changes would need to be made in the bill to make it palatable? (See the text.) Rather than oppose the bill reflexively, it might make sense to brainstorm about ways in which it would be possible to meet MADD and Rep. Smith halfway. After all, the defense bar opposed it when MADD convinced the Lege to eliminate deferred for DWIs in the first place. Or maybe deferred adjudication itself is simply an idea that never really fulfilled its promise and deserves to be relegated to the dust bin of history. I'm not at all sure where I come down on these issues without giving it a lot more thought. Let me know your opinions in the comments.

UPDATE: See a comment string discussing the bill on the District and County Attorney's Association User Forum.

MADD endorses deferred adjudication for first-offense DWI

I'm incredibly pleased to see Mothers Against Drunk Driving backing off some of its more draconian policies in recent months. First they declared they wouldn't oppose abolition of Texas' Orwellian-named "Driver Responsibility" surcharge, and now Paul Kennedy points to an Austin Statesman article in which MADD endorsed allowing deferred adjudication for drunk driving offenses, in part to boost conviction rates and to avoid having DWI cases plead down to non-alcohol-related offenses. MADD's position is especially surprising since they were the primary champion of eliminating deferred for DWIs in the first place.

Smith's bill strikes me as a much better solution to the problem than Austin Police Chief Art Acevedo's DWI-Lite suggestion. Here's a notable excerpt from the Statesman story in which even Williamson County DA John Bradley endorsed reinstating deferred adjudication for first-time DWIs, which was eliminated as a sentencing option by the Lege some years ago in a fit of overzealous pique:

Supporters say the plan could ease court backlogs by routing cases out of courtrooms, give prosecutors a new negotiating tool and remove the threat of jail that makes some first-timers refuse guilty pleas in DWI cases.

By the time a House legislative committee held a hearing on the issue in August, more than 122,000 misdemeanor DWI cases were pending in state district courts. Prosecutors argue they are too limited in the options they can offer first-time offenders.

"Our alternatives that we can offer have diminished such that our bargaining positions have weakened, and cases are backing up," testified Richard Alpert, a 24-year Tarrant County prosecutor who has become a key figure in the fight against drunken driving.

The practice of convicting first-time offenders on reduced charges is more prevalent in counties near San Antonio and Houston, where backlogs have become a significant concern, witnesses reported during the hearing. If the drunken driver repeats the offense, critics worry there is then no record of a first conviction, and no grounds to enhance punishment for repeat offenses.

"The other thing this will do is hopefully make sure that we have a record of that drunken driving incident," said Williamson County District Attorney John Bradley, who expressed support for the measure. ...

In counties where the practice of reducing charges is not as prevalent, such as Travis and Williamson, the move could still ease backlog concerns, several prosecutors said.

"This would be a first step to putting some sanity in that system as long as people make sure to retain it only for the true first-time offender," Bradley said.

Paul Kennedy notes that "My quibble with Rep. Smith's proposal is barring nondisclosure in DWI cases since law enforcement and state licensing agencies have access to the arrest records of defendants whose cases were disposed of through deferred adjudication." He's right, of course, and in an ideal world I wish Rep. Smith would tweak his bill as Paul suggests. But Smith's compromise is one I'm willing to make in exchange for the benefits of avoiding the Driver Responsibility surcharge, which is the biggest reason for the decline in DWI pleas, and to ease the overwhelming burden on county courts imposed by the massive case backlog.

The bill would also have the benefit of clarifying the legality of the DIVERT program created by Harris County DA Pat Lykos, which has generated controversy in some quarters because of its essential similarity to deferred adjudication. One of Harris County's 15 judges hearing misdemeanor DWI cases, Bill Harmon, has refused to participate in the program, and this legislation would presumably eliminate his opposition.

Kudos to Rep. Todd Smith and his staff for tackling this hot-button, third-rail issue in a moderate, sensible way. With even MADD endorsing the bill, there is plenty of political cover and only knee-jerk reasons left for opposing the legislation. And during a session when counties seem certain to face additional unfunded mandates on the criminal justice front, it'd be nice to pass at least a few pieces of legislation that reduce the cost burden on county justice systems. See HB 189 bill details.

RELATED: MADD sounding quite reasonable on mandatory license suspensions.

Does Texas need constables in the 21st century?

Here's a pair of must-read articles from Ed Timms and Kevin Krause at the Dallas News on the evolving role of constables over the last 15 years and whether they've seen too much mission creep:

• Dallas County constables' growing ticketing said to boost safety - and county coffers
• With little scrutiny, Dallas County constables have turned offices into de facto police departments

According to the first story:

[Will] Hartnett, a Republican state representative from Dallas, is concerned with what he sees as a "dramatic expansion" of constables' duties. Constituents, he said, are upset about constables "setting up speed traps and stop-sign traps" – more to write a lot of tickets than to enforce traffic laws.

"There's a difference between enforcement and traps," he said.

Traffic enforcement by constables is praised by some community leaders as a public service that makes Dallas County roads safer. But for a county that relies heavily on fines and fees to pay the bills, such energetic traffic enforcement also is an important revenue stream – especially during an economic downturn. And traffic enforcement has contributed to an unprecedented expansion of constables' operations.

Some justice of the peace courts also are helping to get money from errant motorists into the county's coffers as quickly as possible. They do so by offering deferred disposition – with a probationary period of just a day – for some traffic offenses. If offenders complete the probationary period without another offense, the traffic violation stays off their record.

Such practices have produced results.

Constables are responsible for the majority of traffic cases that end up in JP courts. Revenue from traffic cases in JP courts was about $7.3 million in 2003. It topped $25.8 million in 2008 – an increase of more than 250 percent.

It's interesting to me that it's Republicans like Will Hartnett and Bob Duncan who are raising the most poignant and important questions about constables:

"The question is, in modern-day society, do we need independently elected constables?" said [Robert] Duncan, the state senator from Lubbock. "Because they're basically serving the same function as a [sheriff's] deputy could and probably should be serving."

But this isn't a particularly partisan issue, or it shouldn't be, but really a matter of basic good governance. I absolutely agree that constables are redundant in many of their modern duties and also less accountable generally than municipal PDs and county Sheriffs. Constables are relics; one hundred years from now, I've little doubt history will view them as the same kind of quaint joke as the recently abolished county inspector of hides and animals.

I also thought the whole idea of "deferred disposition" with a one-day probationary period for traffic tickets was quite a remarkable development - pretty much an overt omission that county officials view traffic enforcement as little more than a money grab. While it might be better for the defendant who's concerned that a moving violation might raise their insurance rates, I thought this critique from a Houston attorney was spot on:

Sy Shamsie, an attorney in The Woodlands near Houston, recently found out about deferred dispositions after he was ticketed in Dallas County by a deputy constable. The deferred disposition, he said, provides an incentive not to fight a ticket. He said he believes that collecting money, not public safety, is the intent.

"They're just saying, 'Write me a check' " he said. "They've looking for any way to just generate revenue. That's the easiest way to do it."

This is what happens when government comes to view the criminal justice system more as a source of revenue generation than a means to promote public safety. The latter inevitably gets shortchanged in pursuit of the former.

New Harris DWI 'diversion' plan causes more problems than it solves

Harris County DA Pat Lykos yesterday rolled out a highly punitive and possibly illegal "diversion" program for first-time DWI cases, leaving the Houston-area legal blogosphere abuzz. See the actual plan (pdf) and initial analysis from criminal defense attorneys Mark Bennett, Paul Kennedy and Murray Newman; here's the Houston Chronicle's coverage.

Bottom line, all first time DWI defendants will be offered two options: 30 days in jail or two-years on probation in a newly created (and poorly named) "diversion" program, after which charges will be dismissed. The legal bloggers out of Houston are covering this well, but let me just make a few observations:

We were earlier told part of the purpose for this plan was to reduce jail overcrowding, but this proposal will significantly increase it at a time when the Harris Jail is overflowing and the Sheriff can't adequately staff the jail for the population they've got. How about a little acknowledgment of reality in these decisions?

This is deferred adjudication by another name and it's not allowed in Texas for DWI. I predict the appellate courts will end up overturning the arrangement the first time they try to violate somebody (who can afford a good lawyer) under one of these agreements.

Relatedly, is this a model that's been tried elsewhere or is the DA's office just pulling this out of its collective bureaucratic behind?

Thirty days in jail means somebody probably loses their job, if they have one. That's bad for the economy and public safety. Why not use intermediate sanctions for probation violations instead of needlessly filling up the jail with nonviolent offenders?

The stated conditions of probation are too onerous to induce plea bargainers to choose that option. They include a 10 p.m. weekend curfew, no alcohol at all (not just no driving), no going into places that serve alcohol, paying for an ignition interlock, counseling and regular urinalysis, needing prior permission to travel beyond contiguous counties, and allowing their P.O. and police officers into their home whenever they want, among quite a few others. For myself, faced with that choice, I'd just take the 30 days.

Lykos wants to require ignition interlocks from everyone (paid for by the defendant) but those are expensive and not really cost effective for first-time offenders. Murray Newman rightly asks, "Have you thought about the effect of indigency on your Pre-Trial Diversion customers? What if somebody can't afford the Interlock Device, or they don't have a car at all? Do they get their Diversion yanked?" I'm a strong supporter of requiring ignition interlocks for repeat offenders, but on the first offense it doesn't pass the cost-benefit test.

Finally, it's going to be a concern for some that, according to the Chronicle, "If they successfully complete the probation, [offenders'] records will not show a conviction for driving while intoxicated." But will the MADD folks be satisfied if somebody gets a second DWI three years hence but the sentence can't be enhanced because they were never "convicted"? Most first-time DWI offenders never commit a second offense, but if they ever do at least the first conviction is still on the books. Not under Lykos' new policy, though.

This seems like poorly conceived proposal that needs some more time back at the drawing board, but the DA plans to roll out its new plea policy on August 1.

MORE: See a discussion of the Harris DWI diversion plan on the user forum at the District and County Attorneys Association.

Should expunction burden fall on defendants when charges fall through?

When police and prosecutors make a mistake and pursue charges against a defendant they cannot prove, should the defendant have to pay out of their own pocket to get the records expunged or should it be the state's responsibility?

That's the crux of the question raised by HB 293 by Rep. Harold Dutton which was heard in a subcommittee hearing of the House Criminal Jurisprudence Committee this morning. (See the video here starting at the 7 min., 30 second mark.) While some significant questions were raised that could result in the bill's alteration, the legislation was relatively well received and the members mostly appeared to support it.

Dutton's bill would require automatic expunction in cases where the defendant was pardoned, acquitted, or the case is dismissed. As mentioned previously, the legislation would also shift the burden to the state to clear the defendant's name when accusations never come to fruition.

I testified for the bill on behalf of the Innocence Project of Texas because so many DNA exonerees have trouble finding jobs, housing, etc., even though they've been cleared by the courts and in many cases received pardons. State and private databases continue to dredge up information about their cases that causes employers and landlords to reject them.

Especially for lesser offenses, the collateral consequences of having bad information in public databases can be more serious, even, than incarceration or other punishments.

Several of Texas' DNA exonerees have told me they must carry newspaper clips about their exoneration to job interviews in order to explain why they still show up as violent felons in state and private databases. But even with that documentation, once their application is submitted, too often some bureaucrat in the Human Resources department will later run a database query that keeps them from getting a job.

The bill's main sticking point, as a functional matter, was whether it should include "dismissals" that occur after a defendant has been given deferred adjudication and successfully completed a community supervision stint. Some prosecutors said that such information should be kept in case the person commits more crimes in the future, but the subcommittee didn't seem exceptionally sympathetic to that complaint.

Rep. Paula Piereson, to her credit, spoke knowledgeably and forcibly about flaws in Texas' deferred adjudication statute, complaining that defendants took such deals because they were told there would be no "conviction" on their record, only to learn years later that employers, landlords and others could still access the information and they were not eligible for the information to be expunged. Piereson declared that Texas should either "do away with deferred adjudication" or allow the records to be expunged, as Rep. Dutton proposed. "Deferred [adjudication] does not work," she opined.

The subcommittee seemed inclined to identify a list of specific offenses - mostly violent crimes, sex crimes, and possibly family violence, to judge by the discussion - where records should not be expunged.

Another prosecutor concern dealt with whether an expunction would harm cases where charges are dismissed with the intent of later refiling them. It seems to me, though, this could be easily addressed by inserting language that requires a prosecutor to declare whether they intend to keep open the option for re-indictment, perhaps establishing a deadline beyond which, if no new charges are filed, the records would be expunged.

Neither of these seemed like insurmountable objections.

The only other significant concern raised about the bill was a lame argument that this would be an unfunded mandate. Of course, DAs have no problem paying to pursue these cases, they just don't want to pay to do right by the defendant after they make a mistake.

In terms of cost, the committee was told that some counties charge a court fee to apply for expunging records - in Harris County, e.g., the fee is $250 - plus the defendant must typically pay an attorney, perhaps somewhere in the range of $1,500 to file the motion with the court.

As drafted, Dutton's bill entirely places the onus on the state to pursue expunction in these cases, including the cost, but there was some discussion of whether a $250 fee to the defendant might overcome the "unfunded mandate" objection. On fairness grounds, I don't particularly like that idea. If the burden of proof in court is on the state to obtain a conviction, it seems only just that the state should be responsible for making the individual whole when they're unable to meet that burden.

If prosecutors have enough manpower to pursue a case, they should be willing to devote the manpower to see it through to the end, win or lose. HB 293 is a terrific bill and, with a few adjustments, I'm hopeful the committee and the Legislature will approve it.