published Monday, April 19th, 2010

Struggle to eliminate pretrial diversion continues


by Monica Mercer

Top law enforcers across Tennessee said they will continue their fight to repeal a law that allows first-time criminal offenders to escape admission of guilt even though legislation that would do so already has failed this year.

Legislation to abolish "pretrial diversion," as the practice is called, had been a top focus in 2010 for the Tennessee Public Safety Coalition, which includes all the state's district attorneys general and county sheriffs as members.

The coalition's legislative delegate, D. Michael Dunavant, however, said they failed to convince the House Judicial Committee to approve a bill abolishing pretrial diversion, even though the measure passed the same committee in the Senate.

"We were really disappointed," said Mr. Dunavant, who is the district attorney general for Lauderdale, Tipton, Fayette, Hardeman and McNairy counties near Memphis.

"The thugs aren't afraid of us anymore, and (pretrial diversion) is one of the reasons why," he said.

PRETRIAL V. JUDICIAL DIVERSION

Both laws allow a person who never has been convicted of a crime to be put on probation provided he or she meets certain criteria. Both also allow defendants eventually to expunge all evidence of their prosecutions from public records.

The key differences are the question of guilt and how the diversion is granted. Under law, prosecutors can offer pretrial diversion without a judge's involvement, and the defendants are not required to admit guilt.

Judicial diversion must be granted by a judge and requires a guilty plea. Judicial diversion is more common, with 3,780 cases recorded statewide in 2009, while 283 people received pretrial diversion.

Pretrial diversion has been a controversial issue for years, since it allows people charged with certain crimes to avoid admitting guilt as long as they meet certain criteria, such as never having been convicted of a crime. The charges also are expunged from the public record after a probationary period.

Records show that 283 people across the state in 2009 received pretrial diversion. All misdemeanors are eligible, as well as certain felonies.

Defense attorneys generally support pretrial diversion, arguing it gives otherwise law-abiding people who find themselves in trouble a chance to keep their reputations intact.

In 2008, Hamilton County Board of Education member Janice Boydston in many ways became the "perfect example" of how pretrial diversion should be applied when authorities charged her with shoplifting about $40 in merchandise from Walmart, her attorney Sam Robinson III said.

Ms. Boydston, who was granted pretrial diversion, met all the requirements. She had no criminal record, her alleged shoplifting fell under a list of qualifying crimes, and she agreed to fulfill all the obligations of probation.

"Pretrial diversion is for people who know they are innocent or who have a valid defense for the alleged crime but don't want to risk conviction at trial," Mr. Robinson said. "And prosecutors can choose to re-prosecute if the defendant doesn't fulfill the terms of probation."

But Ms. Boydston also did not have to admit guilt, which is required by the similar judicial diversion law.

Hamilton County District Attorney General Bill Cox said that is the No. 1 flaw of pretrial diversion, and something that prevents the public from ever finding out what actually happened in an alleged crime.

"(Being able to skirt responsibility) engenders doubt and suspicion as to the fairness of our criminal justice system," Mr. Cox said. "Society has a justifiable interest in knowing whether or not the police arrested the right person, whether or not the grand jury acted responsibly and whether or not the charges were brought in good faith."

Mr. Dunavant said the next step will be introducing legislation to at least eliminate class C felonies from the list of crimes eligible for pretrial diversion. Class C felonies include crimes such as aggravated assault, voluntary manslaughter and theft over $10,000.

"These are serious crimes," Mr. Dunavant said. "And victims have the right to see them prosecuted."

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