Coercing Defendants to Plea with the DIVERT Program
As predicted, the DIVERT Program is turning into a coercive program.
Yesterday, I asked a prosecutor to evaluate a DWI case. He asked, "for the DIVERT Program?" I replied, "No, I would like for you to evaluate it for the other 'D' word, a Dismissal." The prosecutor then told me that he was under orders form the "higher ups" that if they evaluate a case for trial, they will no longer be offering the DIVERT Program.
We, the Houston Criminal Defense Bar, specifically asked the Honorable Roger Bridgewater about the office's position on evaluating cases when the Harris County District Attorney's office initially spoke about the DIVERT Program. Judge Bridgewater specifically told us that the cases that need to be dismissed will be dismissed. How in the hell is the prosecutor going to know if the case needs to be dismissed if they don't evaluate the case? Am I missing something, or have they changed their policy?
I hope this prosecutor is wrong. I hope Judge Bridgewater is standing by what he told us several months ago that being that his prosecutors are going to first evaluate the merits of the DWI cases before offering the DIVERT Program.
This is a very good post. Here is the problem with the way that I think Texas administers this program which seems to be the same way that Pennsylvania ARD is offered. In PA, ARD is a pre-trial diversionary program which means that if one were to go to trial and if that person were found guilty, then a conviction follows and no ARD (our form of pre-trial diversion). What this form of diversion causes in practical effect is forcing unjust results based upon risk avoidance instead of truth. A rational player when faced with two impacts will always reason towards risk avoidance in spite of truth. Is this what we really want? Expedience for the sake of justice? Seems to be the antithesis of the point to me.
-Justin J. McShane, Esquire, PA DUI Attorney
Colorado DUI Defendants are coerced into pleading to a lesser charge, DWAI. It is an alcohol offense and stays on your record for life.