San Antonio Express-News (Sunday)
Panhandle DAgives offender ‘donations’ to region’s charities
As she campaigned in the northwestern-most corner of the Texas Panhandle last winter, Erin Lands heard a nervous question over and over from local charities: “All the nonprofits were saying — Hey, are you going to continue the program?”
Lands was challenging David Green, the long-serving district attorney of the 69th District, a sparsely populated four-county region that sprawls across an area about twice the size of Delaware. The charities were worried about losing a programGreen had started five years ago.
Since then, the pretrial diversion initiative has become a money-printing machine and Green has embraced the role of community philanthropist doling it out. Records show he has given about $1 million to Meals on Wheels, Safe Place, the YMCA and local school organizations, among others.
“It’s been crucial,” said Shane Nelson, executive director of the Y.
Dumas Independent School District Superintendent Monty Hysinger said the DA has funded needs ranging from high school student organizations to elementary playground equipment. Meals on
Wheels director Sheila Haltom said, “It always seems to come when we need it the most.”
There’s only one problem: Green’s program appears to violate Texas law. A number of people in the community have known or suspected asmuch, but stayedmum— a testament to how many benefited.
Pretrial diversion gives lowlevel offenders an opportunity to avoid prosecution in exchange for community service and other conditions. If successful, defendants can avoid the stain of a conviction and have all traces of their arrest erased from the public record.
Green’s version, however, has an unusual feature: To enter, offenders arrested in his jurisdiction must “donate” several thousand dollars to the district attorney’s office, in addition to paying monthly fees. That ignores a Texas statute stating that district attorneys may collect a maximum of $500 from pretrial diversion participants, to be used only to offset the program’s cost.
Panhandle defense lawyers say Green’s initiative is profiting off a state law that treats possession of even small amounts of THC-laced foods such as gummies — cheaply and legally purchased in nearby Colorado — as a potentially life-altering felony. With the drug cases flooding his district, the program has become more and more lucrative, records show.
In 2015, about two dozen offenders paid the district attorney’s office a total of $50,000 to qualify for pretrial diversion. Last year, 100 defendants “donated” $326,000 to participate. Most were required to write a $3,500 cashier’s check, although records show donations as high as $10,000.
Attorneys have questioned the political and social cost of the payments.
Lands said running a campaign against an opponent who has sprinkled a million dollars throughout the community posed an extra challenge. “It’s gotten to the point of, ‘You’ve got to feed the machine, help these organizations,’” she said. “It’s this huge thing that’s handing out these checks to all these organizations nowexpecting it. It’s used as a campaign platform.”
Defense attorneys said the high price of admission into the diversion program is unfair. While those with money can purchase a clean background, those without it earn a criminal record, they said. Several attorneys said they had unsuccessfully asked Green to reduce the donation requirements.
In an interview, Green defended the large cash requirement, saying no one forced defendants to seek pretrial diversion. “It’s voluntary. People don’t have to do this,” he said. “We can just take it through court.”
He has been unsympathetic to defendants claiming poverty. “I have had attorneys claim that their clients couldn’t afford it,” he told the Moore County NewsPress last year. “I tell them, ‘You know, if you get an extra job delivering pizzas a couple of nights a week, you could save that money up in two or three months.’”
‘Same as murder’
“It’s certainly immoral and unethical. But you couldn’t turn it down out of principle because it was such a good deal for your client.”
Amarillo lawyer Joe Marr Wilson, who said he has helped dozens of clients into the pretrial diversion program run by District Attorney David Green in the Panhandle
Eric Kohler and a friend were driving home to Hurst, east of FortWorth, in July 2017 when police pulled them over outside Dalhart for failure to signal while merging. They were returning from Colorado, where they’d legally purchased some cannabis products.
After a drug dog alerted on their car, police found three THClaced sodas and a vape pen, Kohler and his attorney said. The two were taken to the Dalhart jail, where they spent the weekend before being released on bail.
Based on the weight of the sodas, Kohler eventually was charged with a first-degree felony — “the same as murder,” noted Adam Tisdell, a Panhandle defense attorney who handles only cannabis cases. A first-degree felony is punishable by up to life in prison and a $10,000 fine.
The 69th District’s questionable pretrial diversion programis a hidden cost of the growing ambiguities of the war on drugs, which local attorneys and prosecutors say have strained Panhandle courts.
While Texas generally has seen cannabis-related prosecutions plummet in recent years, cases in
the state’s northern-most counties have climbed since Colorado’s legalization lawtook effect in 2014, according to data from the state Office of Court Administration. U.S. 87, the quickest route to the legal dispensaries for Texans, runs directly through Dalhart and Dumas — “our Main Street,” said Moore County Attorney Scott Higginbotham.
Yet even as arrests have increased, changing attitudes toward cannabis use have complicated prosecutions. When Texas legislators legalized hemp last year, few labs performed tests to distinguish illegal marijuana from its now-legal cousin. So prosecutors often must hire expensive private companies if they wish to pursue cases.
State laws that base criminal charges for THC concentrate in edibles or drinks on the product’s total weight — statutes even many prosecutors say are outdated — also tax the system.
“What I got is awhole bunch of kids getting charged for a seconddegree felony for a few grams of THC — the size of threeHot Tamale candies,” said Kent Birdsong, county attorney for Oldham County, where U.S. 385 makes a beeline toward Colorado. “They’re just going north to Trinidad for an adventure.”
This month, Rep. Terry Canales, D-Edinburg, a defense attorney, prefiled a bill to treat THC products similar to marijuana plant products. Possession cases involving marijuana plant products typically are charged as misdemeanors. In the meantime, Panhandle prosecutors have struggled to clear their swelling dockets. While several have standard pretrial diversion programs charging only the state-authorized fees, others have gotten creative, using the hammer of felony charges to raise money.
In Oldham County, Birdsong — the county’s only licensed lawyer — said he has made it a practice to automatically plead felony possession cases to two misdemeanors to spare young defendants a permanent criminal record. But the deal is expensive: a $4,000 fine for each misdemeanor, plus a $2,000 contribution to a local charity.
Prosecutors said Birdsong’s programdiffered fromGreen’s in several ways. When defendants admit guilt in a plea deal, prosecutors have more flexibility setting conditions, which also are not as proscribed by state law. Offenders themselves also choose froma list of nonprofits andmake the donations directly, meaning the DA isn’t assuming the role of community benefactor.
Yet the Oldham County programalso uses the threat of a felony charge to wring extra money from offenders. Birdsong acknowledged nothing in state law specifically said he could demand the donation.
“I’m using prosecutorial discretion,” he said. “I canmove cases this way, and it’s win-win for the community.”
$50,000 in a day
Because of the severity of the charges against him, the “donation” Kohler, the Hurst resident, would need to enter the 69th District’s pretrial diversion program was going to be higher than the standard $3,500, defense attorney Tisdell told him.
Kohler, who worked as a line cook, said he struggled to raise the cash, requesting more time.
“Finally they told me, ‘You have to come up with the money or you’re going to jail,’” he said. He emptied his savings and asked his grandmother for a loan.
On Feb. 16, 2018, Kohler handed over a check for $5,000. Records show Green’s diversion program collected a total of $28,500 in donations that day.
There seems little doubt the admission payments are unlawful. Texas lawis clear on the $500 limit for pretrial fees to cover administrative costs.
Green argued the donations aren’t fees and that the statute “doesn’t specifically say you can’t” require additional payments. Yet several nonbinding opinions written by Texas attorneys general have found otherwise.
“A prosecutor may not require
an offender to contribute money to a public or private entity in consideration of the prosecutor’s decision not to prosecute,” thenAttorney General John Cornyn wrote in a 1999 opinion.
“Unauthorized accumulated ‘pretrial diversion fees’ and the interest earned on the fees must be returned to the individuals who paid those fees,” Cornyn added in another opinion issued three years later.
Asked to weigh in on a Brown County program requiring a monetary “gift” to join its pretrial diversion program, Attorney General Ken Paxton in 2016 concluded it was unauthorized, noting that “a monetary payment in exchange for a promise to dismiss criminal charges … is not consistent with the ordinary meanings of either ‘gift’ or ‘grant.’”
Tisdell acknowledged he’s known Green’s donations clashed with state law. “But as an attorney, it puts me in a crappy spot,” he said. “The program doesn’t seem legal, but I have to look out formy clients’ best interests.”
He said he’s helped at least 30 clients buy their way into the 69th District’s program. “I told them — the program’s probably illegal. But if you want to get out, this is what you can do.”
Joe Marr Wilson, an Amarillo lawyer, said he has helped dozens of clients into Green’s program. “When he first started doing it, we didn’t think twice about it, to be honest,” he said. “We were just happy he was doing it, because it means not ruining people’s lives.
“But then we started thinking: That’s a lot of damn money.”
Wilson recalled one day in which he represented seven pretrial possession cases, with other attorneys present representing an equal number. “That’s $50,000 in a single day,” he said.
“I believe it’s illegal,” Wilson added. “It’s certainly immoral and unethical. But you couldn’t turn it down out of principle because it was such a good deal for your client.”
Green “is charging a heck of a lot of money for this, and I have no idea what he’s doing with it,” said ChrisHesse, another Amarillo defense attorney. “But what I tell my clients is, it’s your ass on the line. So it doesn’t matter how he’s using it.
“Maybe someone is abusing the system. But what’s best for my client?”
‘Buy your way out’
Tisdell said he was present when another area district attorney, Randall County’s Robert Love, told Green his program likely wasn’t permitted by state law. When Green continued requiring the donations, Tisdell said, he reported Green to federal authorities.
Tisdell said he called the U.S. attorney’s office in Amarillo in November 2018. He said he presented an FBI agent with a canceled check and donation paperwork from a pretrial client a few weeks later. He said he and the agent had a second phone meeting.
The federal attorney’s offices don’t confirm or deny investigations. Love said a pending investigation prohibited him from discussing the matter.
Green said he has never spoken to a federal agent about his program and has received no complaints.
Lands said she wondered if some deal had been struckwhen, last fall, Green quietly dropped out of the district attorney’s race. “I was surprised he didn’t even make a public announcement,” she said, adding she heard about it only from colleagues. Green, who soon will be 68, said he simply decided to retire.
Lands, an assistant prosecutor in Hutchinson County, won the Republican primary in March and ran unopposed in the general election. Green has continued to collect donations for the diversion program, records show, but Lands says she wants nothing to do with the special bank account when she takes office in January.
“Pretrial diversion is a great program, and I’ll continue to do it,” she said. “But I’m not going to collect donations that by law I’m not allowed to collect.” She said she plans to ask the state comptroller or attorney general to investigate.
“You don’t want a system where you can just buy your way out of trouble,” she said.