D.A.’s overhaul of diversion program, once ‘too restrictive,’ courted scandal

Man approaches podium
Diversion enrollment nearly doubled under Don Landry. Federal prosecutors say the growth was by design. Photo by Travis Gauthier

Keith Stutes was determined to wipe clean the stain of a bribery scandal he inherited when he took over the 15th Judicial District Attorney’s Office in 2015. Left unchecked, diversion programs, which have long served as an alternative to criminal prosecution for non-violent offenders, can be fraught with problems. He weighed eliminating the district’s program, but opted instead to make it more restrictive, a hedge against abuse.

Pretrial diversion programs are common in Louisiana, and their usefulness as a tool of justice is difficult to pin down. District attorneys operate them with little oversight or transparency, leading to criticism that they are at best a method of selling justice and at worst tools of corruption. In the 15th Judicial District, at least, the program offers a cautionary tale.

After Stutes’ single term as district attorney, his successor expanded the program while contracting with an exclusive set of vendors, drawing the scrutiny of federal investigators and, ultimately, another bribery scandal erupted. The 15th Judicial District Attorney’s Office is now ground zero for a scandal that’s resonated statewide.

Don Landry defeated Stutes’ first assistant, Danny Landry, and assumed office in 2021. He put one of his top assistants, Gary Haynes, in charge of the diversion program. Haynes and a contractor, Dusty Guidry, completely revamped it, trying, it seems, to turn the program into the kind of money-maker it has become in some of the state’s judicial districts.

Enrollment in the program nearly doubled from 2019, Stutes’ last pre-Covid year in office, to 2021. What was, under Stutes, a program operating in the red by hundreds of thousands of dollars, posted a $36,000 profit on more than $1 million in revenues.

Year15th JDC Diversion Enrollment
2022 (through May)325
Source: Acadiana Advocate/District Attorney Don Landry

Guidry pleaded guilty in a federal indictment unsealed earlier this year, with Haynes implicated in court documents as “Public Official 1” in the unfolding bribery scandal. Landry initially hesitated before placing Haynes on unpaid leave following the FBI’s May 2022 raid of his office. Haynes was investigated during the prior scandal, which involved kickbacks related to OWI charges, but never charged.

Federal prosecutors say the growth was by design, contending that Guidry and Haynes (identified in court documents as Public Official 1) “loosened and caused to be loosened the eligibility requirements of defendants” so vendors could collect and kick back more money. The new program offered four vendors exclusivity and mandated that offenders use them — a policy one attorney interviewed for this story called “a bad administrative decision.” Each vendor tied to Don Landry’s office is implicated in the kickback scheme, with Guidry pleading guilty in late March to having illegally taken in more than $830,000.

Landry has defended the program’s growth from the moment FBI agents raided his offices in Downtown Lafayette last year. Some criminal defense attorneys likewise have criticized Stutes’ approach as far too restrictive.

“[Landry’s program] is much better than his predecessor’s program, and it is better than those available in adjacent judicial districts,” says criminal defense attorney Barry Sallinger, noting he believes Landry has taken some steps to identify and address issues with the program. (Sallinger previously represented Guidry after his 2021 felony drug arrest unrelated to the kickback scheme; Guidry has not been charged in that case due to the federal investigation taking precedence.)

Still, vendor exclusivity — a factor in the kickback scheme — is one of the biggest administrative problems local attorneys identified with Landry’s program.

“With many options for service providers, the choice [of which to use] would be left to the participant and the possibility of kickbacks or bribes would be very limited,” says Sallinger. “Why should one provider be mandated? This never made sense to me. It merely invites trouble.”

After the federal raid in May 2022, Landry promised to bring in an independent auditing firm (which would be separate from his office’s regular auditors) to ensure that “all our procedures and safeguards were complied with.”

Landry’s regular auditors, however, have found problems with controls and accountability.

The Kolder Slaven firm raised red flags in its 2021 audit, saying the office did not have adequate written policies and procedures for its pretrial diversion program, resulting in “inconsistent and incomplete documentation being maintained in participant files.” The auditors appear to be saying they can’t even tell if participants completed the program. They also said in the report that the office could be running afoul of state law.

The extent to which Landry has addressed the regular auditor’s findings may be clearer later this month, when the 2022 audit is posted on the legislative auditor's website.

Landry, who has hired his own criminal defense attorney, did not respond to a request for whether the special audit of the pretrial diversion program he promised was undertaken. A public records request for documents is pending.

In 2020, the Louisiana legislative auditor’s office found that “many” district attorneys’ offices in the state permitted expenditures that may be violating state law. An “informational audit” of all 42 districts found that at least six offices hadn’t fully implemented the district attorneys’ association guidelines.

Some 12 of the 42 pretrial diversion programs (almost 30 percent) did not include provisions in their policies restricting expenditures to those allowed by state law, which restricts diversion revenues to the program’s related expenses, other types of diversion and victims’ assistance programs, and (since 2022) crime labs.

The LLA made clear that its review did not constitute an actual audit of the programs. Additionally, Straight News Online was unable to locate any data that analyzed the effectiveness of the programs throughout the state; the recidivism rate, for example, is unknown. A 2018 story in The Advocate noted a number of ways in which the program can be abused, including political patronage.

It’s thus difficult to know if offices are following their own guidelines in who has access to buying an alternative to potential jail time.

In June, KATC reported on a retired radiologist, Maurice Bercier, who was indicted by a grand jury on a charge of cruelty to the infirm. In 2021 Bercier was charged with misdemeanor domestic battery involving the same victim, a charge that was dismissed after he participated in the embattled pretrial diversion program.

Landry did not respond to a request for comment about Bercier’s charges.

While pretrial diversion continues to have detractors, like public defenders, sheriffs and judges who say the programs siphon dollars from their own budgets, others in the criminal justice system believe it has a rightful place. Even some criminal defense attorneys, who often lose out on legal fees.

Gary Haynes with Don Landry on campaign trail in 2020
Gary Haynes, left, who appears to be implicated in a new bribery scandal at the DA's office, was a fixture on the campaign trail with Don Landry. Haynes was investigated but never charged in another bribery scheme a decade ago when he worked under District Attorney Mike Harson.

“I tell anybody if you have a chance to do pretrial diversion, do it,” says criminal defense attorney Patrick Magee, while acknowledging pretrial diversion can be costly and burdensome. “You pay for it yourself. The citizens aren’t burdened, and you basically get a second chance,” Magee says.

“You have good people, many times that make poor choices, most of the time the poor choice is due to some other issue, mental health, alcohol, drugs,” says 16th Judicial District Attorney Bo Duhe. “And in other cases just being a young knucklehead because they lack judgment at 18 years old, judgment that we all didn’t have.”

While the programs’ structure and amounts district attorneys’ offices take in can vary greatly, for Duhe pretrial diversion isn’t the money maker many assume it is. Over the past five years, his program has lost as little as $64,000 in 2021 and as much as $268,000 in 2019.

Duhe, who did not use any of the vendors ensnared in the kickbacks, says he has no reason to think his office is under investigation.

Sallinger says the district attorney is “the person ultimately responsible and accountable” for the integrity of the process. “Having a linear chain of command with direct responsibility to the DA himself is non-negotiable,” he adds.

With Guidry’s confession now more than three months old (his sentencing is Oct. 12 at 10 a.m.), observers believe indictments or additional plea bargains in the case will drop any day now. Haynes has not responded to questions about whether he, like Guidry, was offered a plea deal.

“I can’t confirm or deny anything about the case,” says Haynes’ attorney, Todd Clemons of Lake Charles. “I’m not going to discuss anything about what may or may not have been offered to him.”

While the multi-jurisdictional federal investigation has thus far netted only a single plea agreement, lack of oversight has left many wondering just how widespread the problems are.

Former District Attorney Keith Stutes. Photo courtesy the Acadiana Advocate

Despite his misgivings that the pretrial diversion program was ripe for corruption, Stutes, who declined to go on the record to discuss the unfolding scandal, did come around to implement his own program.

The main critique of his program: It was too restrictive, the requirements too harsh.

“Everyone says Keith is hard on people,” pretrial vendor Joe Prejean of C&A Consulting Services told The Daily Advertiser in 2016. “But our whole community has gone amok — stealing, stabbing — when does it stop? Keith is doing the right thing with programs like this. He has a rough road ahead of him, but he’s headed the right way.”

Prejean later became an exclusive vendor under Landry’s new program. His firm is now implicated in the kickback scheme.