The Legality of D.I.V.E.R.T.

There was an interesting ruling out of the 14th Court of Appeals this week that points out what many of us have been saying for awhile -- that Pat Lykos' DIVERT program is not a legal form of punishment for Driving While Intoxicated.

In State vs. Rhodes, the Defendant was charged with Driving While Intoxicated and his case landed in County Court at Law # 2 under Judge Bill Harmon.  Followers of the DIVERT controversy know that Judge Harmon has always maintained the position that DIVERT is illegal and he won't do it in his court.  The Defendant wanted to participate in DIVERT, but that wasn't going to happen on Judge Harmon's watch.

Rhodes' attorney then filed a Motion to Recuse Judge Harmon in the attempt to get a new judge that would allow him to have DIVERT.  A hearing occurred on the Motion to Recuse and the Administrative Judge chose NOT to remove Judge Harmon from the bench.  The defendant was ultimately found guilty and received 3 days and a $500 fine.

He then appealed his case, citing as error the Administrative Judge's ruling to NOT remove Judge Harmon as the error.

Now, before we go into the ruling, I'm kind of wondering what it was like for the D.A.'s Office to be arguing against the Defendant's appeal.  They were kind of in a Catch-22, weren't they?  On the one hand, they want the conviction to stand, but on the other they have to protect the validity of Lykos' pet project.  I haven't seen the State's response, but I'm curious how they argued it and kept it intellectually honest.

Additionally, how did they handle the Motion to Recuse?  Did they agree with the Defendant that Judge Harmon should be removed from the case?  I'm asking out of genuine curiosity.

Ultimately, the Defendant and the DIVERT program both lost their arguments.

The 14th Court of Appeals ruled that the Defendant was not entitled to a different judge than Judge Harmon, because Judge Harmon was correctly following the law when he refused to participate in DIVERT's pre-trial diversion program.  They pointed out that Judge Harmon was, in fact, following the law and considering the full range of punishment because pre-trial diversion is not a legal form of punishment.

I wonder what will become of DIVERT in light of this ruling.  My guess is Lykos will keep on giving it out.   I guess she kind of backtracked off that whole "Rule of Law" thing she touted so highly in the 2008 election.