Bully in a robe

Last June Michael Giacona got behind the wheel of his van after drinking and ended up in an accident that claimed the life of Aaron Pennywell. Mr. Giacona was charged with a misdemeanor DWI because investigators could not determine who was at fault for the accident.

As part of a plea, Mr. Giancona was sentenced to one year in the Harris County Jail. After 90 days, Judge Michael Fields ordered that Mr. Giancona be released from jail and placed on probation. The terms of that probation included standing at the intersection where the accident occurred on four consecutive Saturdays wearing a sign that said "I killed Aaron Pennywell while driving drunk."

On the first Saturday of his public humiliation, Mr. Giacona was confronted by hostile passers-by and passing cars. It seems that Judge Fields' idea of punishment was to expose Mr. Giacona to bodily injury. Sanity later prevailed in County Criminal Court at Law No. 14 and Judge Fields suspended the public humiliation.

As part of the terms of probation, Judge Fields also ordered Mr. Giacona to write a letter to Mr. Pennywell's parents apologizing for killing their son. This past Wednesday, Mr. Giacona told Judge Fields that he would rather return to jail than apologize to Mr. Pennywell's parents.

Now let's remember that the Harris County District Attorney's Office didn't charge Mr. Giacona with intoxication manslaughter because they couldn't prove that the accident was the result of Mr. Giancona driving while intoxicated. In other words, no one could determine - beyond a reasonable doubt - who was responsible for the accident. While his refusal to apologize does not make Mr. Giacona a sympathetic figure, following the judge's order would result in an admission of fault for the accident. That admission of fault would (all but) guarantee a recovery in a civil suit for wrongful death.

But that's nothing to ordering a man to humiliate himself and expose himself to injury. Judge Fields' order that Mr. Giacona must stand at the intersection holding a sign announcing that he killed Mr. Pennywell does nothing to further justice. The purpose of punishment in our criminal (in)justice system is to rehabilitate, deter or punish. It is not to humiliate a person. The order to carry the sign was gratuitous. It was a way of telling a defendant that I can make you do whatever I want you to do - and you can't do a damn thing about it. Judge Fields was angry that Mr. Giacona couldn't get more than a year in the county jail. Oh well. A judge's job is to act as an impartial arbiter at trial and, if requested, to order a punishment that is appropriate under the circumstances.

Whether the judge approves of the charge filed against the defendant is of no concern. Imposing a harsher punishment because you think someone should have been charged with a more serious crime is wrong. Ordering someone to humiliate themselves is the act of a bully.

Will the bad ideas ever cease?

Alcohol Monitoring Systems, Inc. must be paying their lobbyists in Austin a pretty penny as legislation is pending before the Senate Criminal Justice Committee that would require motorists placed on probation for DWI to wear a SCRAM bracelet. The legislation was authored by Sen. Jane Nelson (R-Grapevine).

For those of y'all not familiar with SCRAM, it's an ankle bracelet that supposedly monitors a person's sweat for the presence of alcohol. The device is supposed to be super-sensitive to alcohol and is, therefore, known for giving false readings due to cologne, perfume, body spray and lotions (just to name a few). The device is also prohibitively expensive for most folks who find their way into the criminal (in)justice system.

The device requires a deposit and a monthly fee approaching $500.

Interestingly enough, AMS markets its ankle monitor for the "hard-core" drunk driver -- not the first-time offender.

All such a requirement will do is force more motorists to accept jail time instead of probation due to the prohibitive cost and will increase the number of motions to revoke filed by probation officers due to faulty equipment.

Sen. Nelson and her ilk don't seem to realize that a DWI probation is the more severe sentence a first-time offender can receive. This person, who likely has no prior contact with the criminal (in)justice system, must now report to a probation officer once a month, be subject to random piss tests, and drive around for at least a year with an ignition interlock device in their car. There is a reason that most criminal defense attorneys advise their clients to take time served and a fine (if offered).

I noticed there is no fiscal note attached to the proposed legislation. It would appear that Sen. Nelson hasn't thought about the increase in the number of people who may have no choice but to opt for jail time instead of probation. It also appears that Sen. Nelson has no idea of the true cost to a motorist of a DWI conviction as things stand currently.

Enough of the piling on. What's next? A registry for motorists convicted of driving while intoxicated? Oh, that's already been proposed.

All in the name of judicial economy

Former State District Judge Robert Gill had a novel method of moving his docket along. In a 14-year period, Gill handled almost 8,000 probation revocations. His method? As he would say, cutting out the middleman.

And who was the middleman? The prosecutor from the Tarrant County District Attorney's Office.

Tarrant County criminal defense attorney William Ray testified under oath in federal court that the judge would negotiate his own plea deals and if a defendant rejected the offer he would hear the case and, if the allegations were proven, order a more severe sentence.

Mr. Ray's testimony came in a habeas hearing that resulted in a conviction being vacated due to ineffective assistance that he rendered.

According to the chief of the criminal division in the DA's office, Alan Levy, the district attorney was well aware of how things operated in Judge Gill's court. He said that even though the practice was not the norm in Tarrant County, the case load moved rapidly and "the sentences seemed to fit the offenses." As it turns out, about 60% of probationers brought before Judge Gill had their probations revoked.

Apparently not too many attorneys complained about the practice, least of all Mr. Ray who pocketed over $1.3 million in court appointments over the last five years. Mr. Ray was also Judge Gill's largest campaign contributor in 2004 -- even though Gill was unopposed.

Robert Gill retired from the bench in 2007 and is a deputy chief with the Tarrant County DA's Office.

For fourteen years defense attorneys allowed this to continue. Why? Was it fear of not getting appointments? Was it fear of pissing off the judge? Was it laziness? Or was it pure cowardice?

Injustice continues only because we stand aside and let it. This is how we've always done things. Don't rock the boat. You've got to go along to get along. This injustice only came to light because Sandra Wilson, a defendant with a history of mental problems, stood up and fought.