GIVE AND TAKE BETWEEN DA'S OFFICE AND DEFENSE BAR

(Ed's Note: The furor caused by the unilateral implementation of a new substance-abuse testing program by the Cameron County District Attorney's Office under the leadership of Luis V. Saenz that will increase the cost to defendants in the Pre-Trial Diversion program has escalated beyond mere words. Below we quote the give and take between Asst. DA Rene Garza and a few members of the defense bar. We omit the names of the attorneys because they did not authorize that we publicize their emails. Under the new policy, all defendants in the PTD must report to the Avertest testing site 365 days a week holidays and weekends included. If they are called to test, they must do so that same day regardless of whether they have to leave their job site or are out of town. Additionally, instead of paying $5 per test, the new cost will be $17 per test, with $8 going to the DA's Office PTD fund.)

Lawyer 1:
"I would also like to add that even those on federal probation are not required to report 365 days a
year. If accepted into a special program, the maximum amount they need to report is 6 months. So,
someone who pled guilty to a misdemeanor DWI is with a federal conviction? That's utterly ridiculous."

Lawyer 2:

"And for everybody's information, I've learned from a probation officer and an ADA that each program participant can expect to be selected for random testing 8-10 times PER MONTH. I really hope my information is bad and that this isn't correct, because that comes to $136-$170 per month, or $1,632-$2,040 per year. How else can this company from Richmond, Virginia profit on the backs of the poor of Cameron County?"

Lawyer 3:

"The fact is it is very easy for folks of our means to think little of the burden of the poor, and if we are being honest, we must admit these policies disproportionately affect the poor. It is one thing to say, well, they (the defendant) brought this on themselves. Many PTD participants have govt.- issued cell phones they can only use for emergencies, for example. They will suffer while this private company profits, and why? Because Cameron county probation can't do their job. 

We have heard the arguments. The first was that we must improve randomness. But I think we all know that is not a real issue. The second argument was that the county does a poor job administering RUAs, so the solution seems to be to have a third party private company dip even deeper into defendants pockets for profit and then require them to check in 365 times a year. I don't believe there is anything indecent or disrespectful about calling this 'solution' inane."

Lawyer 4:

With all that said, there are two issues. First, this change is a breach of contract for existing PTD
agreements. The solution is not to jump all over Rene; he's a good honest lawyer who works
very hard, and this most likely wasn't his decision. The solution is for the defense bar to
challenge revocations on the breach of contract.
As for future PTDs, we will just have to consider the reasons why PTD may not be appropriate
and fight more of these cases.
The dockets are backed up beyond belief in this county. In Harris county, a county of over 3 million, I believe, DWIs are charged within a week of arrest. The fact that it takes us months and months
is ridiculous. I happen to know of a case where a defendant here in Cameron county was
accused of aggravated sexual assault, aggravated kidnapping, and aggravated  assault deadly weapon and this DAs office couldn't get around to indicting the defendant for over 3 months, a week after the def got out on a Personal Recognizance bond. They must be more backed up than any of us realize.
The point is the defense bar has some leverage. Not much, but if the DAs office is serious about
relieving the docket clog, the answer is for us to carefully consider the benefits of advising our
clients to take PTD given its already burdensome provisions, with the long-term goal that these
types of decisions are made with some consultation with other officers of the court so that justice
and judicial economy can be mutually inclusive objectives for all of us. We will be better for it,
the DAs office will be better for it, and Cameron County will be better for it. None of us want
drunk drivers on the road and we all agree participants should stay clean while on probation. But
inanity must be acknowledged where it exists.

Lawyer 5:

"I agree...only I would add inane. There is NO real justification for this directive except to justify the existence of some bureaucrat buried deep in the bowels of the DA's office. Perhaps an enema is order?

Lawyer 6: 

"Everyone is being to nice! Requiring a defendant to report 365 times a year is just stupid."

Asst. DA Rene Garza replied to the storm of disapproval thus: 

"To-that-end..prior to Avertest there wasn't a set fee. Random UAs and BAC samples were collected in various unsanitary locations throughout the county by county probation officers who came to conclusions based on minimal trainings they received at County expense. These results were often challenged in Court, and it is my belief that Justice was not served as the tests were neither Random-or Lab-certified. Using county time and employees to collect and send samples by FEDEX to  a distant lab with questionable chain-of-custody situations. The county would charge the-probationer from five dollars to $25.00 for each UA.

Avertest has assured us that their collections and results will withstand a court challenge according to all recent scientific-testing procedure at a reasonable price. I appreciate your opinion as to overburdening your PTD client, I don’t feel that submitting to Random UA and a one-minute phone-call on a daily basis would discourage your clients from participating in the PTD program, imagine the burden of a conviction."

And a reply from Lawyer 7:

"...While the participants no doubt should stay clean and behave themselves, they should also be allowed to have a life. Is having them call in every day practical? More importantly, does it rise to level of a material change in the contract?

If the intent is to remind them of this opportunity and how seriously they should take it, this new measure seems to go overboard in my opinion."

Asst DA Garza:

In response I ask that you review your client's PRE-TRIAL AGREEMENT, looking specifically at the fourth condition of the agreement:

4. I will COMPLETELY avoid the use of alcoholic beverages to include beer and illicit drugs while participating in the PRE-TRIAL DIVERSION-PROGRAM.

And the fifth condition; 

5. I will attend the following services if checked below: Random urinalysis and/or breathalyzer testing. I believe that if your client knew of and agreed to these two conditions in the agreement, then there has been no substantial change to the agreement."

Thus, while calling in and submitting samples on a random basis is a new experience to your clients, it is not a NEW requirement or a change in the contract. Therefore, this agreement has not been modified from the basic terms and conditions as you explained them to your clients when signing the agreement."

Lawyer 8: 

"It's clear we'll just have to duke this out case by case. But if this DA's office insists on outsourcing the County's criminal justice responsibilities to private companies who profit by imposing these types of hardships on FIRST TIME OFFENDERS, including private prisons or probation companies, to the detriment and erosion of the civil rights of the citizens of Cameron County, then this defense bar must do what it can to see that a change in leadership occurs. It is our professional, ethical and moral responsibility to do so."

Lawyer 9:

"Rene, it is apparent that you just don't get it. Please step out in the sunshine and smell the fresh air (I have previously noted there a few windows in the Administration Building). No Defense lawyer wants these draconian measures, for all the reasons previously stated. So the DA's office will implement this daily reporting measure, notwithstanding reason and discussion. Hello, where is that enema bag when you really need it?"

NEXT: A view from an attorney and former District Judge against the new Avertest poicy implemented by the DA's Office: