Last week, the videotape Clutch City, highlighting the Houston Rockets' drive to the NBA throne, went on sale. Overshadowing its release, however, was the videotape of Rockets coach Rudy Tomjanovich's 3 a.m. drive one week earlier through West University Place, the affluent suburban municipality known for its zealous enforcement of traffic laws. Tomjanovich was arrested and charged with drunken driving, with West U's police chief initially saying the arresting officer's video camera had captured the coach's Jeep Cherokee weaving twice over the center line of Buffalo Speedway. In an amazingly swift disposition of justice, Harris County prosecutors dismissed the charge two days later, with the West U police chief saying that, in fact, a viewing of the tape did not reveal Rudy T swerving across the center line or acting drunk.
District Attorney Johnny Holmes, at a press conference to announce that the videotape was inconclusive and the misdemeanor charge against the coach had been dropped, denied that Tomjanovich -- who admitted he had been drinking but refused to submit to field sobriety and Breathalyzer tests on the night of his bust -- had been treated differently from anyone else arrested for driving while intoxicated. But some defense attorneys intimately familiar with the sometimes inscrutable workings of the criminal justice system don't buy that assertion. And neither does Mothers Against Drunk Driving.
"When I first heard about Rudy's arrest, I said I thought Holmes would handle it like any other DWI arrest," recalls criminal defense attorney Wayne Heller. "Of course, the next day they dismissed it. And that's clearly bullshit."
Heller emphasizes that there is nothing unusual about the D.A.'s office dropping charges against a DWI defendant when the prosecution doesn't have a strong videotape to present as part of its' case. However, through May 31 of this year, 7,003 misdemeanor DWI charges had been filed in Harris County. In most, says Heller, the judicial process had to run its course before a case was dismissed. In precious few of those cases has Holmes become personally involved, says Heller, especially a mere two days after the incident.
"I was in court on a DWI case this morning," says Heller. "We've been to court six or seven times. And the D.A.s have not yet given me an answer whether or not they'll dismiss it. They want to talk to their officer. So, I don't think it's unusual that [Tomjanovich's] case got dismissed. What's unusual is that it got dismissed within two or three days of being filed. All the upper-level guys were brought in on this case because it was Rudy. The big guys got involved quicker. Typically, in a case like that they'll make you set it for trial. They make you run through the ringer. They want to see what kind of balls you have."
Heller says the Tomjanovich episode reminded him of a recent observation by author and former police officer Joseph Wambaugh on the O.J. Simpson case.
"He said it's such bullshit to pretend that there's no special treatment going on," says Heller. "Of course there's special treatment. The guy's a celebrity. They should just admit it."
David Cunningham, who also practices criminal law in Houston, agrees with Heller's assessment.
"Let's put someone in Rudy T's situation who's not coach of the world champions," suggests Cunningham. "If they refuse to blow [take the test], the D.A.'s office decides whether they are going to accept charges. Once they accept charges, that means they set a bond and put it in the system. I've never heard of a case being dismissed before the defendant goes to court for the first appearance on a DWI."
Last week, Holmes seemed to back off somewhat from the notion that there was nothing special about Tomjanovich's brush with the legal system. The D.A. acknowledges that he had indeed devoted unusual attention to the coach's case -- since, Holmes says, he was bound to be criticized regardless of what he did.
"He received special treatment in that I would not allow the prosecutors to dismiss the case without talking to the arresting officer," says Holmes. The D.A. admits he rarely gets involved in misdemeanor DWI cases unless, say, they involve big-name politicians. "If it is a celebrity, the press is going to call me. They're not going to call [an assistant D.A.] So [my assistants] come to me in every high-publicity case, because you really look stupid when somebody like you calls me and says, 'What about Tomjanovich?' And I say, 'I don't know what you're talking about.'"
Holmes adds that he could have easily put to rest any questions about the treatment accorded Tomjanovich if he had ordered his assistants to prosecute the case without substantial evidence that the head Rocket was intoxicated.
"That would have been protecting old John's butt," says Holmes.
According to Rusty Hardin, Tomjanovich's attorney and Holmes' former first assistant, the case was expedited because Rudy T had planned to plead guilty if the videotape showed him driving or behaving in a drunken fashion.
"Holmes got involved only because the prosecutor responsible for the case thought [the case] ought to be dismissed and wanted to give [Holmes] advance warning and a chance to overrule him," says Hardin. "All Holmes did was not overrule the trial prosecutor."
Nevertheless, the way the Tomjanovich case was handled by the District Attorney's Office disturbs Mothers Against Drunk Driving. MADD activist Vina Cronin says she's worried less about any possible special consideration that was afforded the Rockets' coach than she is about future DWI suspects believing that refusingto cooperate with police and not taking a sobriety test -- as Tomjanovich did -- may work to their benefit.
"I personally believe that Johnny Holmes is a fair man," says Cronin, who lost a son to a drunk driver in 1977 and has been involved with MADD since 1981. "But I am concerned because the [arresting] officer knows what he saw that night. There are many factors that the officer is aware of that the public isn't. I'm concerned that we're going to have to have video cameras in all these [patrol] cars before we can prosecute a DWI case. There is a concern about what is going to be necessary to support the DWI arrests.
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"We have all of this sophisticated equipment today to use in courtroom prosecution. But we've prosecuted many thousands of cases without any of this equipment and breath test refusals, based upon the sworn testimony of the arresting officer. So, is that going to be a thing of the past? It can't be."
Holmes has no patience with MADD's criticism.
"MADD doesn't know anything about it!" he says emphatically. "So I disregard their criticism. Let them come in and talk to the officer. The officer told me, 'I have a reasonable doubt, after seeing the video, that he's guilty.' Now that's the arresting officer!"
Because he refused to take the Breathalyzer test, Tomjanovich could still lose his driver's license, although that's unlikely in his situation. In refusal cases, a defendant is notified by the Department of Public Safety to appear before a municipal judge or justice of the peace. If the judge finds there was no probable cause to stop the defendant, the motion to suspend the license is dismissed. Even in cases where there is probable cause, attorneys say judges often probate the suspension when it's a first offense.
In the meantime, the court of public opinion is still out on Rudy T's automotive excursion through West U, since the videotape of his drive -- unlike the Clutch City saga -- is not yet available for public viewing.