I posted yesterday that I had granted immunity to my clients.

It is well known that Nicole Yzaguirre is my client (even though my ability to go to the Hennepin County Courthouse has been impeded).

I experienced pressure on Ms. Yzaguirre to agree to a “diversion” of the case the Hennepin County Attorneys Office is pressing against her.  When I was present (and even though pressed by a judge, who should not be involving himself in settlement) that was resisted.

When I was not able to make the 1/9/13 hearing (and I would surmise most people know why) apparently Nicole was again pressured into “diversion.”

I have long protested these programs.

First, they require the defendant, essentially, to plead guilty.  They are advertised as not being a conviction, but that is misleading.  They are in fact worse than a guilty plea because there is no transcript of the plea proffer.

Second, I’m not sure who runs these programs, but they seem very tight with law enforcement.  I have attended “interviews” from such programs, and had to ride herd on the effort of the supposedly neutral person, so that they did not manipulate my client into making statements that would protect law enforcement from liability.

Given that Nicole Yzaguirre started her litigation in federal court as a civil plaintiff suing Bloomington police, this is a real risk.

Third, these programs require the Minnesotan to pay money for the luxury of having their civil rights impaired, losing their due process rights, and letting someone make a non-official “record” of what they supposedly say while they are there.  Where is that money going, and why are the courts assisting those companies in making money?  Aren’t the courts non-profit?

Fourth, the payment must be by money order.  No cash or personal checks accepted.  Why is that?  And why are the courts involving themselves in these types of requirements?

Fifth, the requirements for De Novo include sentence to serve.  A sentence comes after a conviction.  And, it is not clear who benefits from the STS program (where is the labor being diverted, and who is not paying for labor costs because of that labor ordered by the courts) or why De Novo would be involved with that puportedly public program.  The connection between the two also leaves me wondering whether De Novo has special access to county staff, or county records.  Computers?

Sixth, the participant in De Novo is required to alert that private entity if they change their address.  Who has access to those addresses?  Because of lot of my clients do not want police to know where they live because they fear retaliation.  Does De Novo give the address information to police?  Do police have access to their computer data?

Seventh, the participant could be required to pay “restitution.”  Restitution comes after sentencing.  And, it appears no due process is afforded the participant, with regard to whether or how much restitution should be paid.  Does the county calculate it?  And if so, why is the County involved in doing that for a private company?

Eighth, the requirements say you agree to abide by chemical dependency and mental health requirements set by De Novo.  What is that company’s expertise in these areas?  And, does diversion really mean if you criticize police, De Novo will make you one of the Three C’s (see my post on that topic in Judicial Misconduct Dictionary)?

Ninth, De Novo requires the signing of a “statement,” without any indication what that means.  Diversion should be subject to the “knowing and voluntary” requirement, just like any guilty plea.

Tenth, it is not clear that a participant has the ability to file a motion to withdraw a guilty plea, since that term is not being used to describe diversion.  Any lawyer can easily see the argument the HCAO would make, that that Rule does not cover diversion.

Eleventh, the sheet describing De Novo states that organization can help locating education or employment.  Does this mean if you “play ball” and say police did nothing wrong that you are rewarded?  Isn’t there a term for that?

Twelvth, the descriptor sheet says that if you “successfully” complete De Novo your criminal record will be expunged.  Expungement refers to convictions.  Further, there are no criteria.  Lastly, if you fail, you are returned to court for criminal prosecution.   This puts all the power in De Novo to first gather admissions and data about you, then return you to be prosecuted.

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