Dallas Bar Association
HEADNOTES August 2018 Volume 43 Number 8
Focus Criminal/Trial Skills
Diversion Programs and Criminal Justice Reform BY MESSINA MADSON AND KENDALL CASTELLO
(Left to right): Alicia Hernandez, DBA Executive Director; Trey Apffel, SBOT Executive Director; and Rob Crain, DBA Immediate Past President
DBA Recognized by State Bar STAFF REPORT
At the State Bar of Texas Annual Meeting in June, the Dallas Bar Association accepted several awards for its programs and services. The DBA received the prestigious Award of Merit for outstanding services to its more than 11,000 members and to the community, and the Outstanding Partnership Award for Immediate Past President Rob Crain’s Together We Dine programs, in which the DBA partnered with Project Unity. The program’s goal at each event was to give participants a safe place to have open conversations about race, religion, and politics. In addition, Headnotes received a Star of Achievement award for: Best Substantive Law Series for the May 2017 Tort & Insurance Practic issue. Authors
Focus
included: John G. Browning, of Passman & Jones, P.C.; Jamie K. Baker, Thompson, Coe, Cousins & Iron LLP; Lindsey Shine Lawrence, of QBE North America; Jay English, of The English Law Group, PLLC, and Susan Taylor, Attorney at Law. The awards are presented by the State Bar of Texas to recognize local bar associations for outstanding community involvement, commitment to increasing access to justice and dedication to the profession. The publication awards honor exceptional reporting, originality, and impact on the legal profession. At the annual meeting, Joe Longley, of Austin, assumed the role as president of the State Bar, and Randy Sorrels, of Houston, was elected SBOT president-elect. In addition, Rob Crain, of Crain Lewis Brogdon, LLP was elected to the State Bar Board of Directors. HN
FOCUS: Criminal/Trial Skills
Criminal Emergencies for Civil Attorneys BY BILL MATEJA AND JASON HOGGAN
Client emergencies are an inevitable part of what we do. Those emergencies sometimes come with a criminal twist. Federal agents might arrive unannounced to conduct a search of a business or interview employees. A company might unexpectedly be served with a grand jury subpoena. Regardless of the scenario, your client may not have time to engage a criminal lawyer—your phone rings instead. Not every attorney aspires to be a modern day Perry Mason, but when a panicked client calls with a criminal emergency, even civil attorneys should be
able to do better than My Cousin Vinny. Here are three common areas in which a civil lawyer might be faced with a criminal emergency, and some simple tips to help your clients get through it.
Surprise! We’re Here With a Search Warrant
Federal law enforcement agencies have steadily increased their use of search warrants in recent years. Ideally, companies should have a clear game plan in continued on page 19
As part of a nationwide movement for criminal justice reform, diversion programs are at the cutting edge and have been gaining momentum as Americans have started protesting mass incarceration as a solution to crime. Incarceration is highly expensive and leaves a person with a permanent criminal record that makes future success far more difficult. Diversion gives people a chance to address the underlying issues for their poor decisions and helps them avoid entering the criminal justice system and getting stuck there. As the use of these programs grows, they are becoming a system within a system with rules and rewards of their own. It is critical for everyone involved in criminal justice to be aware of these programs, their structures, and the benefits they offer to an accused individual and the criminal justice system as a whole. Diversion programs do exactly what the name implies—they “divert” an accused individual out of the criminal courts and into special programs. These programs can help change the trajectory of an accused person. Through the diversion program an individual can learn new habits, overcome addictions, and avoid criminal behaviors. When someone completes a diversion program, the underlying case is dismissed and can be immediately expunged. Diversion programs offer individuals a fresh start with new tools to succeed. The Texas Legislature has codified that graduates of a diversion program are entitled to an immediate expunction. The key to future success, an expunction removes all record of a crime. This clears a person’s criminal record from background searches by law enforcement, employers and educational institutions. Diversion graduates can pursue an education and career without the stigma of a criminal record. So, how do we get those who need these programs plugged into an appropriate one? First, please note that diversion is a “predisposition” program. This means that a person enters the program while the criminal case is still pending (prior to a plea bargain
or trial). If the person is unable to complete the program, the case will return to the normal process in the courts. Here are some other important things to know: 1. Act quickly. Diversion programs sometimes have a narrow window to apply, so acting—sometimes even prior to indictment—is important. 2. Know the local options. As an attorney, you must make sure you know what is available in your county of arrest. While drug diversion is the most common program, diversion programs are expanding into other areas of focus as well, such as: • young people; • people diagnosed with mental illness; and • people charged with Driving While Intoxicated. 3. Don’t forget to apply. In nearly all instances, to get into a diversion program you must apply. The programs usually do not come looking for the participants. Each county will have its own programs and requirements for eligibility. 4. File the paperwork to get the underlying case expunged. Upon completing the program, a case will NOT be taken off a person’s record unless that person or her attorney files for the expunction. 5. Explore financial aid. Many programs have a financial component, but reduced rates or scholarships often are available based on documented need. Why are these programs becoming more focal in the criminal justice system? Today nearly everyone within the criminal justice system agrees that incarceration is a poor way to handle non-violent or low-level offenders. Diversion addresses the underlying issues that lead to the criminal behavior, with an eye towards taking the person OUT of the system altogether. When those charged with nonviolent or low-level crimes are pushed to do better, gain tools to succeed, and return to productive lives, everyone wins. HN Messina Madson and Kendall Castello are the former First Assistant and Administrative Chief for the Dallas County District Attorney’s Office and are currently partners at Madson Castello, PLLC. They can be reached at messina@madsoncastello.com and kendall@madsoncastello.com.
Inside 6
Equal Access to Justice Campaign Co-Chairs Named
14 Error Preservation: A Synopsis for Your Trial Plan 16 Woodshedding, Coaching, or Tampering? 18 Leveraging Your Defense with an Offer of Settlement
REMINDER: BELO CLOSED IN AUGUST
The Belo Mansion will be closed during the month of August due to building renovations. No meetings or CLEs will be held during that time. The building will reopen Tuesday, September 4. Staff will be available by phone or email during the remodel. You can still get your CLE credits using the DBA Online CLE Catalog at onlinecle.dallasbar.org.