Copies

 Posted on February 14,2008 in Uncategorized

Ask any Harris County criminal-defense lawyer, and she'll tell you that criminal-defense lawyers should have copies of offense reports. Ask any Harris County felony chief prosecutor whether the defense lawyer is right, and I'll bet (based on my highly-scientific survey of 9% of such chiefs) that you'll get the same answer.

If I could file a notice of appearance on a case in Harris County and immediately make a photocopy of the offense report, I would be able to spend less time reviewing the prosecutor's file, and the prosecutor would be able to spend less time making his file available to me. We would all be able to go about the business of practicing law with much less time wasted in note-taking. The prosecutors I've talked to agree.

So if defense lawyers here and elsewhere and prosecutors (and even AHCL [Is she a prosecutor or a defense lawyer? Only her hairdresser knows for sure!]) are in agreement that defense counsel should have copies of offense reports, what has the holdup been for the last umpty-ump years?

One possibility is that some of the 30 or so police agencies that the Harris County DA's Office takes reports from might object to the Office providing us with copies of "their" reports. I am guardedly optimistic about the candidates' recent announcement that they will allow defense counsel to copy offense reports; I won't be surprised to see whoever gets elected announce that after further consideration and study the idea no longer appeared feasible - for example, because of resistance from police agencies.

What kind of resistance? One of my correspondents suggested that the police agencies might threaten to leave things out of offense reports - to ambush defense counsel - if they knew the offense reports were going to go to defense counsel. Indeed, he suggested that this might have been the scenario in which the DA's Office (under Johnny Holmes, if not earlier) forbade defense lawyers from copying offense reports.

If that was the police agencies' threat, it is a hollow one. I always love to have cops testify to things that weren't in the offense report. Every halfway decent defense lawyer has her patter for these occasions - build up the officer's training and all of the reasons that it's important to write a complete and accurate offense report, including all of the relevant facts; and then reveal to the jury that facts X, Y, and Z weren't in the officer's report. Juries, I think, generally believe that the cops are making up the parts of their testimony that weren't in the report, and they stop trusting the police. So if police agencies started leaving out facts to hit the defense with at trial, it is the success of the prosecutions of their cases that would suffer the most. If the DA's Office learned that certain cops were deliberately omitting facts from their offense reports, it could stop taking reports from those cops.

There are other quibbles about providing offense reports to defense counsel. One is cost - why should the State bear the cost of providing copies to defense counsel? The answer is that the State has picked the fight and shouldn't be surprised to pay a little to make sure the fight is fair. Aside from that, though, defense lawyers would be perfectly happy to pay reasonable copy charges for offense reports. Within a few years all of the offense reports will be available to the prosecutors in electronic form (most are already), so that there will be no cost in forwarding them to defense counsel.

Another quibble is that letting defense counsel copy offense reports might put Vulnerable Witnesses' information in the hands of Dangerous Defendants. The DA's Office has had a general de facto open-file policy for decades, though, allowing defense lawyers to take thorough notes ("but not word-for-word" - they used to even refuse to let me take notes on my laptop) from offense reports, and we haven't had an epidemic of witnesses being intimidated and whacked.

The DA's policy against allowing defense counsel to copy offense reports was one of the smaller things wrong with the current and last administrations. It's heartening to see even the most anti-change candidate for DA come out in favor of changing the policy. But there are other policies that need change as well; time will tell if the candidates are interested in making these changes and strong enough to actually do so.