A couple of years ago, the Collin County District Attorney’s office decided to institute a deferred prosecution program for young people (17 to 21 years old) accused of minor offenses. The D.A.’s office sends out letters inviting people to contact the probation department for the program if they think you’re eligible.
If you can qualify and successfully complete the program — then it’s possible you can qualify for an expunction without having to risk going to a trial. In theory, it’s a great concept and a win-win deal.
In practice it isn’t quite that simple. There are some pitfalls to watch for.
Here’s Why You Should Contact a Criminal Defense Lawyer Before You Agree to Apply:
1. You have to Confess to Be Eligible. The entire theory behind the Deferred Prosecution Program is getting “help” for the “youthful offender.” My only guess is that this somehow helps with accepting responsibility as part of “treatment.” By confessing to whatever crime you’re accused of committing, you’ve often sealed the DA’s office legal case against you should you not be accepted into the program or the program not work out. This brings me to my next point.
2. The Program is Hard to Complete. The program administrators are under extremely strict marching orders to report and toss anyone out of the program for the slightest infractions. They define a violation as anything they interpret in their sole discretion as being an infraction. This means that even you dispute whether you’ve violated a rule — you’re still gone without a chance to complain to anyone. They can and do throw out participants on a frequent basis. They’ve got your confession now to use against you in formal prosecution. This seems inconsistent with “helping youthful offenders” but this is they way they’ve chosen to run their program.
3. The Waivers and Terms are Extremely One-Sided. The prosecutors and probation officers don’t know anything about the case — except that you’re guilty of whatever the police said you did. They view this program as purely charity towards you. Therefore, they are justified in having every term extremely slanted in their favor (see above — that a violation is determined in their sole discretion — and that’s just one example). You also waive more complicated things such as the statute of limitations which could push-off or even possibly nullify your ability to get an expunction (although they dispute this).
4. The DA’s Office is Legally Your Opponent. Texas Disciplinary Rules of Professional Conduct Rule 3.09(c) states, a prosecutor in a criminal case shall “not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.”
5. A Criminal Defense Lawyer is Your Advocate and Voice. Collin County’s Deferred Prosecution Program makes me as nervous as a long-tail cat in a room full of rocking chairs. I’m not suggesting it can’t be a great way to clean a criminal record while minimizing risk — but I am suggesting you know what you’re getting into first.
A criminal defense lawyer can point out one or ten possible defenses that it’s not the DA’s office or the probation office’s job to point out. Also, a criminal defense lawyer experienced with how the program is administered can advise you in advance as to whether entering into the program — and all it entails — is truly what is in the best interest of the accused. The prosecution only thinks they know how to do this better.
Jeremy F. Rosenthal, Esq.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice, you should directly consult an attorney.