Nearly a decade ago, authorities in St. Tammany Parish charged a reclusive doughnut cutter with more than a dozen felony counts of possessing child pornography.
While investigating whether Shawn Boylan allowed another man to have sex with a minor in his Lacombe home, deputies happened upon a veritable library of porn stored on external hard drives, CDs and other devices in the residence.
Much of the material was legal, according to court records, but a forensic analysis of Boylan's collection revealed several illicit images of children.
Boylan faced several years in prison if convicted, and it was far from his first run-in with the law. Many criminal defendants caught with child pornography serve lengthy stints behind bars even if it's a first offense.
But instead of prosecuting the case, the St. Tammany Parish District Attorney's Office dismissed the charges in 2013 — nearly five years after Boylan's arrest — offering no explanation in the court record as to why the 13-count bill of information had been thrown out.
Boylan, after paying a $300 initial enrollment fee, had been admitted into a pretrial diversion program under then-District Attorney Walter Reed — a secretive yet widely used practice that affords a second chance to certain defendants while padding the coffers of prosecutors around the state. Boylan paid an additional $1,260 in "supervision" fees before his case was closed.
Diversion traditionally has been reserved for DWI and other nonviolent misdemeanors, such as theft or possession of marijuana.
A spokeswoman for Reed's successor, Warren Montgomery, said Boylan "would not have even been considered" for diversion under the current administration, given the "nature of his offenses" and his prior criminal history.
Jack Hoffstadt, who served as an assistant district attorney under Reed, said Boylan had been accepted into the diversion program as a favor to Gil Copeland, a longtime Reed supporter who was the brother of Popeyes founder Al Copeland.
"We would put drug dealers in diversion," Hoffstadt said in an interview. "If you were a campaign contributor, you could have repeated arrests for domestic violence and you'd go into diversion."
Reed, who is appealing his 2016 conviction on 18 federal corruption counts, said through his attorney, Rick Simmons, that he does not remember the specifics of the case but that the diversion was not granted as a political favor.
A rapid expansion
Advocates have long hailed pretrial diversion as a way to help people who have committed less serious crimes avoid the challenges that can come with a criminal record. But diversion has recently come under greater scrutiny amid Louisiana's growing budget crisis, as several district attorneys, in a bid to raise revenue, have rapidly expanded the practice to include traffic tickets.
In recent years, in fact, diversion has become a major money-maker for many district attorneys.
A review of budget records in several parishes revealed dramatic increases in pretrial diversion fees in recent years — a spike that, in some jurisdictions, has siphoned scarce funding away from other stakeholders in the state's criminal justice system, including public defenders, who rely on money from non-diverted traffic tickets to fund their offices.
In Rapides Parish, for instance, revenue from pretrial diversion shot up from $300,000 in 2012 to $2.2 million last year, according to records obtained by The Advocate. A significant increase also has occurred in Jefferson Parish, where program fees jumped from $335,000 in 2012 to $1.3 million in 2016.
Pretrial diversion has been around for decades and has grown in popularity at a time when Louisiana is seeking to reduce its notoriously high incarceration rate.
The practice has become routine for traffic tickets and DWIs in some parts of the state. But it also has become increasingly common in felony cases, as district attorneys in Louisiana have the discretion to admit whomever they choose into the programs.
Montgomery's office, for instance, charges a $1,500 upfront fee to divert DWIs and eligible felonies, compared with $400 for most misdemeanors, spokeswoman Lisa Frazier Page said. Participants are expected to stay off drugs and out of trouble, and to complete other requirements of the program, which vary from parish to parish but are generally akin to probation.
The debate surrounding diversion extends beyond the propriety of offering such a break to some first-time offenders and not others.
Some district attorneys have been accused of balancing their depleted budgets with diversion fees — funds that go directly to the district attorneys and are not disbursed among sheriffs, public defenders, crime laboratories and other agencies that receive a percentage of court costs assessed with each conviction.
Critics also have voiced concerns about the lack of oversight and transparency in diversion programs. In St. Tammany Parish, for instance, the Clerk of Court's Office does not even receive notice when a case has been diverted, employees there said; they often rely on "tell-tale" indicators of diversion entered into court minutes, such as a case that has been continued indefinitely before being dismissed.
Hoffstadt, the former prosecutor, said it was "a big secret who was on diversion" during his time at the District Attorney's Office.
Among the many unknowns are which cases are being diverted and under which circumstances. The lack of publicly available data has raised questions about whether minority defendants have qualified for the programs as regularly as their white counterparts.
"The DAs just don't offer it to some people," said David Belfield, a New Orleans defense attorney who practices in several parishes. "If they want you in the program, they'll bend over backward to make it happen. If they don't, they'll do everything they can to keep you out of it."
Several district attorneys said that criticism of diversion stems from widespread misunderstandings about the programs. Among the misconceptions is that defendants are merely required to pay a fee to the district attorney to make a charge "go away," said Keith Stutes, the district attorney in the 15th Judicial District, which includes Lafayette Parish.
"That would be improper," Stutes said in an interview. "You'll hear complaints that justice is for sale, but diversion is hardly just dismissal in exchange for a fee. The participants have a program to follow, and that can include drug screens, intensive treatment and education."
The controversy has drawn the attention of the state Legislative Auditor's Office, which has begun investigating the use of diversion in DeSoto Parish.
"There's really no way to track what district attorneys are doing with the money, and I think that's one of the concerns the auditors have," said Rodney Arbuckle, the recently retired DeSoto Parish sheriff.
Seeking to shed new light on diversion, the chief justice of the Louisiana Supreme Court recently asked every district attorney in the state to compile three years of data to show how often prosecutors are steering cases away from the courtroom and into pretrial diversion programs.
Chief Justice Bernette Johnson, citing "growing concerns" over the practice, told the prosecutors that questions have arisen over "the impact of such programs on the courts, indigent defenders, sheriffs and other members of the criminal justice system."
The diversion study will be undertaken by the Louisiana Judicial Council, a research arm of the Supreme Court composed of judges, lawyers, state lawmakers and others.
"This inquiry encompasses not only the effect that these programs have on court funding, but the manner in which they are implemented," Johnson wrote in an April 26 letter to the Louisiana District Attorneys Association.
Johnson's inquiry is unprecedented in scope, and prosecutors have pushed back at her broad request for "documentation demonstrating the benefits of pretrial diversion." The DAs association told Johnson she had asked for a "massive amount of data," much of which is "either unavailable or would require substantial effort and expense to compile and report."
"A lot of the concern about pretrial diversion programs has to do with the tight budgets everybody has right now," Pete Adams, executive director of the association, said in an interview. "People have this preconception that diversion is the sole cause of the drop in their revenues. In fact, it's saving the system a lot of money by not having defendants go through the regular process."
State money needed
Some district attorneys are calling for input from the Legislature, where two bills aimed at reforming pretrial diversion in DeSoto, Caddo and Bossier parishes foundered this past session. The legislation, which died in committee, would have allocated certain percentages of diversion fees to public defenders, criminal court funds and local sheriffs, among other agencies.
Adams said those bills would have meant the end of pretrial diversion in those three parishes. Had those district attorneys been forced to share the revenue, they would no longer have been able to afford to offer the programs, Adams said.
"We would love for the state to provide all of the expenses for pretrial diversion services and then we wouldn't have to charge any fees," Adams said. "But we don't have the money to sustain our offices at the given time — much less pay for these services."
If state lawmakers adequately funded both district attorneys and public defenders, there could be "uniform standards" for diversion and less impetus for prosecutors to pursue programs to self-fund their cash-strapped offices, said Hillar Moore III, the East Baton Rouge Parish district attorney.
"It shouldn't be up to individual DAs or local officials to support this," Moore said. "The funding now is on the backs of defendants, and so you're hurting the people who are least able to afford it."
Rafael Goyeneche, president of the watchdog Metropolitan Crime Commission in New Orleans, said it could be difficult for lawmakers to agree on statewide standards for diversion, in part because of budgetary differences among parishes. "But fundamentally, if law enforcement has a financial stake in the enforcement of laws, I think it creates a potential conflict for them," he said.
Much of the recent expansion of pretrial diversion has involved the adjudication of traffic tickets. In some parishes, most citations stem from a highway safety program known as Local Area Compensated Enforcement, an initiative that has been rife with abuse in recent years, including state troopers writing fraudulent tickets or claiming hours they did not work.
Arbuckle, the retired DeSoto sheriff, said an internal investigation in his parish implicated three former deputies who are now facing potential criminal charges for defrauding the overtime initiative. "It's just been a mess," he said.
In Rapides Parish, meanwhile, a bitter court battle is brewing between District Attorney Phillip Terrell and the local police jury, which has accused of Terrell of depriving it of much-needed court funding.
The police jury filed suit against Terrell challenging his pretrial diversion program, which has become one of the main focuses of Terrell's administration. Visitors to the district attorney's website are greeted with a large "make a payment" link in the center of the page.
Terrell did not return calls seeking comment.
Jimmy Faircloth Jr., an attorney for the police jury, has challenged Terrell's authority to finance his office using pretrial diversion fees. He said district attorneys around the state are too broadly interpreting a statute that had been intended to devote those funds to victims' assistance programs.
"It cannot be lawful," Faircloth said. "By having such an aggressive pretrial intervention program, (Terrell) is essentially running all of the tickets and misdemeanors normally processed as fines in criminal court into a separate account that benefits only his office. It leaves the police jury short of money it needs to underwrite other criminal justice entities, and it's a heck of a budgeting challenge."
While much of the recent fight over diversion has focused on arguments over money, there have been longstanding and more complicated questions over whether the practice is susceptible to abuse.
In St. Charles Parish, for instance, diversion was allegedly used by Harry Morel, the former longtime district attorney, to leverage sexual favors from women who had been booked with DWI or other crimes.
Federal authorities said the practice there dated back decades, though they ultimately charged Morel only with attempting to derail an FBI investigation into his sexual misconduct in office. He pleaded guilty to the allegation and is now serving a three-year prison sentence.
A co-defendant in the case, John Landry III, the former chairman of the St. Charles Parish Hospital Board, was charged with falsifying public records and later admitted to signing letters, at Morel's behest, in which he falsely attested that at least three women had completed court-ordered community service at the Luling-Boutte Lions Club, where Landry served as president.
None of the women, all of whom had been charged with DWI, actually performed the community service — which had been required as a condition of their receiving pretrial diversion.
Landry, who helped Morel game the diversion program, ultimately qualified for it himself, courtesy of Joel Chaisson II, Morel's successor as St. Charles Parish district attorney.
"Mr. Landry has a long history of community service in St. Charles Parish," Chaisson wrote in a letter to the Attorney General's Office. He "meets all of the standard criteria for this program."