The Catch-22 of Pretrial Diversion

One of the great new policies of the Harris County District Attorney’s office is the use of Pretrial Diversion. The program provides an accused the assurance of a dismissal with the completion of certain conditions. The conditions are usually burdensome, but no more than a regular probation or deferred adjudication. The difference is that at the end of the conditions, the DA fills out a dismissal and it is recorded as such. Ultimately the accused can obtain an expunction and wipe his record completely clear!

Although some lawyers tell their clients that a deferred adjudication is the same as a dismissal, this is not legally correct. Although the case is “dismissed” by the court at the end of the deferred term, it is never completely dismissed by the prosecution. An accused who successfully completes a term of deferred often has the right to request that his record be “non-disclosed” to the public. However, this is not the same as an expunction order,  which orders every entity that has records of an accused’ arrest and charge to destroy them completely.

The current law does not mandate “non-disclosure”. Upon application, a Judge may well deny a request for non-disclosure and this decision will be based on an abuse of discretion standard.  To make matters worse, some charges such as an Assault involving a family member, can never be “non-disclosed” from the public record. Obviously, a dismissal resulting from a Pretrial Diversion is the better alternative.

However, the request for a Pretrial Diversion has a troubling downside. In order to get admitted into the Pretrial Diversion program, the accused must file an application through his attorney with the District Attorney’s Division Chief. The DA has issued a series of guidelines for this request. In addition to letters of recommendation, certificates of achievement and a letter from the attorney explaining why the accused would be an appropriate candidate for diversion, the Chief wants to see a letter from the accused admitting to his guilt.

At first glance, this seems a reasonable request. After all, shouldn’t a pretrial diversion be reserved for the defendant who is willing to take responsibility for his mistakes? The problem comes in when an accused actually believes in his innocence for very good reason. Many people get arrested for crimes they did not commit. All of us are subject to false allegations. However, the system does not rely on a Great God of Justice, who knows and sees all and throws down lightening bolts from the sky to punish the guilty and rectify the unjust prosecutions. The system relies on mere mortals, with human frailties.

Many truly innocent defendants would rather guarantee a dismissal through the Pretrial Diversion program than cast their fate to the jury. And it would seem just as reasonable to assume that the prosecution would rather dismiss than to try an innocent man. However, the current policy in place puts the innocent defendant in a Catch-22. Lie and admit guilt to guarantee a dismissal, or tell the truth and run the risk of being wrongly convicted by a jury.

Another problem with the “admit guilt” policy is that the Division Chief may not approve the pretrial diversion, even if the accused falsely admits guilt. This leaves the accused with the risk of jury trial, but without his fifth amendment right not to incriminate himself. If he takes the stand and tells the jury that he did not commit the crime, the trial DA may well attempt to impeach the defendant with the statement he provided along with the pretrial diversion packet!

Although the prosecutor would likely not be able to use the statement in the presentation of his case in chief, because it was provided to him for the purpose of plea negotiations, the Judge may well allow it to dispute the defendant’s credibility. The bottom line is this: A criminal defense attorney better be judicious with his requests for pretrial diversion, or his client may suffer in trial.

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