As predicted and expected, Harris County DA's office using DIVERT interview against defendants

Last week I spoke with one of our elected Harris County judges and expressed my concerns about the evaluation interview regarding the DWI DIVERT program.  I explained to this Judge that I was concerned about the interviewer asking my client about the alleged DWI facts and the responses that were given.  My concern then was that the Harris County DA's office would use this information in the prosecution of the case if it went to trial. 

I asked the chief prosecutor in that court (who I trust implicitly) if she would use the information from the DWI interview in the prosecution of my client.  She responded that she would not use the information from the interview against any client in any subsequent prosecution of the case should client decide not to accept the DIVERT program.  For the record, I believe her and have no doubt that she would not use this information against my DWI client.

I then asked if I could get the agreement (not to use the information) in writing.  After consulting with the higher-ups, they were not willing to sign a written agreement.  Therefore, we did not agree to be interviewed for the DIVERT program.

Fast forward to today.  A Houston DWI lawyer informed me today that he had basically the same conversation with the Harris County District Attorney's office.  They assured him that they would not use any information against his client that was obtained in the interview for the DIVERT program.  Even though the DA's office told him his client was a good candidate for the program, after the interview for the DIVERT program the DA's office declined him for the program.  And guess what, the DIVERT interviewer sent over a detailed statement given by that client to the prosecutor in the court.  Essentially they sent a confession over.

Again, the pitfalls of the DIVERT program are exposed.

12 days into DWI DIVERT Program - Still no official forms for DWI lawyers to review

The Harris County District Attorney's office has been talking about the new DWI pretrial diversion program since May of this year.  We have heard the official date of the start of the program is August 1, 2009.  It is now August 12, 2009 and we as Houston DWI lawyers have yet to see any of the official documents related to the new DWI DIVERT program.  I was in court this morning and asked a chief prosecutor for the paperwork that they would require my client to sign to be a part of the DWI program.  The response - "We don't have the final forms yet."

How am I as a Houston DWI attorney suppose to advise my clients to accept or reject this program if we don't even have the forms that would be required to enter into the agreement?  I know, it is a rhetorical question, but the program and the design of the program have been ill-conceived from the outset.

The assistant Harris County DA's are just as frustrated, in fairness, by the lack of information as the defense bar is.  Why?  Because they too are dependent on the higher-ups in the office to learn about the program.  It seems nobody really knows enough about this program - remember, the DWI diversion plan that District Attorney Pat Lykos discussed months ago

The new DWI DIVERT program - ill-conceived, hastily planned and a waste of time so far. 

Here is the Pre-Trial Diversion conversation I predicted was coming

I was in court this morning and the Assistant Harris County District Attorney that I dealt with gave me insight into the new DIVERT program and confirmed to me that there will be fewer dismissals of Houston DWI cases, at least temporarily. 

Here is the gist of the today's conversation about one of my innocent clients that was charged with DWI:

Me:  Have you had a chance to evaluate this case for trial?

Prosecutor:  Sure, your client is eligible for pretrial diversion.

Me:  Sure he is, he has never been in trouble before.  But, have you evaluated this case for trial?

Prosecutor:  He is eligible for the new DIVERT program.

Me:  I understand he meets your qualifications, but have you evaluated the case for trial.  My client is not interested in doing the DIVERT program.

Prosecutor:  Why wouldn't your client do the pretrial diversion program.

Me:  Have you watched the video in this case that shows my client is not intoxicated and does not comport with what the offense report says?

Prosecutor:  The new program will allow your client to get his case dismissed.

Me:  Again have you seen the video?

Prosecutor:  No because your client can do the pretrial diversion program.......

This went on for a few more rounds until it seemed to finally sink in to the prosecutor that my client is not going to participate in the new DIVERT program.  Only then did she agree to watch the video and evaluate the case for trial. 

Is it too much to ask to have them evaluate the case for trial and have them actually do that?  Do the prosecutors really want innocent people pleading guilty to a crime (requirement of the pretrial diversion) that they are not guilty of?  Do they want the police officers to be the person that arrests the citizen, inaccurately reports about that citizen and then ultimately convicts the citizen?  Do the prosecutors want to use the education they received to actually evaluate theses cases?