Posted on
January 25, 2009 in
Keith Hampton’s editorial in today’s Austin American-Statesman contrasts Travis County District Attorney Rosemary Lehmberg’s new policy of providing defense lawyers with copies of offense reports with Williamson County District Attorney John Bradley’s policy of not allowing defense lawyers to see offense reports:
In leading the way on this cost-saving measure, Lehmberg also
reaffirmed the fundamentals of our system and demonstrated confidence
in the quality of her prosecutors. A prosecutor whose sole aim is to
see justice is done is unafraid that his adversary may be reading from
the same report — after all, an accurate and thorough investigation
convicts the guilty and protects the innocent. Unfortunately,
maintenance of secret police reports is still the norm in some
jurisdictions, such as Williamson County.The Williamson County district attorney’s office not only denies
counsel copies of reports duly prepared by police agencies, but even
refuses to permit lawyers to read from them. Counsel is entitled to
review the reports only at trial — a little late, if you are the
unfortunate person on trial for a crime you didn’t commit. This attitude reflects a neurotic insecurity about the talent and skill of
its own prosecutors as well as distrust of the honesty and competency
of local law enforcement. Worse, it suggests a need to hide police
reports to maintain an unfair advantage, a policy elevating conviction
rates above the interests of justice. Police reports should enter the
sunshine of the adversary system earlier, more efficiently and more
justly, as state lawmakers are preparing to ensure.
“Neurotic insecurity.” Ouch.
The rest of Keith’s editorial suggests that the Legislature is considering reform of the criminal discovery process to correct the abuses of the Georgetown Reichstag and other “tough on crime” jurisdictions. Any ideas who’s on point at the Capitol on this? I’d like to follow this legislation.
Michael, check the TDCAA list of pending bills that I linked to a week or so ago.
I was just telling another lawyer about Williamson County today. The first time I went out there, I didn’t know their system. The prosecutor reviewed the state’s file in front of me, but put his arm across the table trying to prevent me from seeing the police report. I asked him if I could see the report and he said “No, you can’t see it.” He then writes an offer in the file and asks me “Do you think your client might take this?”. I was dumbfounded. I looked at the prosecutor and said “Well, how can you expect him to consider anything when we don’t even know what you are alleging?”. It was a complete waste of a day.
Ellis County (south of Dallas) has a similar closed file policy. The prosecutor will read the report to me (as if I’m illiterate) but I can’t look at said report. It speaks to the incompetence of local police that the DA goes to such great lengths to hide their work.
If you set a motion for discovery the State revokes all plea offers. Such is the recipe for wrongful convictions and injustice. It’s time to take away the State’s power to prosecute cases with secret evidence. There is no legitimate purpose behind a close file policy.
The D.A.’s office in Burleson and Washington counties (one D.A. for the two counties) had a similar closed file policy to what Travis County had. You could look at the file, but you could only take notes and not make any copies. It would frustrate me to no end, and always struck me as a huge waste of time. Instead of writing down word for word what the report said, I could be using that time to go over that report with my client and discuss the best way to handle the case.
I have yet to try this, but would an open records request or FOIA request work? I have to assume someone out there has already tried this.
This is, at the moment, Harris County’s policy. Offense reports on open cases are not public information under the TxPIA.
OK, I’m confused. How does keeping the offense report secret meet any kind of rational Constitutional muster? How is a defense attorney supposed to do his job without knowing the details of the alleged crime? As I understand it, in a civil case, neither side can introduce surprise evidence. Why doesn’t the same thing apply to criminal cases? As a taxpayer, I have to believe at this point that we are wasting tax dollars with this kind of secrecy.
The same thing doesn’t apply to criminal cases because the government has people so scared of crime that they’re willing to tolerate just about anything that makes it harder to defend people.
Typical Chronicle comment:
Damn the presumption of innocence; full speed ahead.
Tarrant County (Fort Worth) has a smart and very ethical elected DA, Tim Curry. His office is an extremely good example of how prosecutors’ offices should handle discovery. Tarrant County has gone to a paperless system wherein police reports, photographs, and other information normally in the prosecutor’s file is available to defense counsel on the internet, immediately after the defense counsel’s letter of representation is entered into the county mainframe. The only limitations are regarding child porn cases (still a paper file but available for viewing and copying of non-contraband material) and 3(g) offenses (file is restricted until indictment, then opened fully to defense).
By comparison, a DA’s office in, say, Mordor or Randal Flagg’s Las Vegas could do no worse than to emulate Collin County.
My hope is in the Legislature. And yes, I just threw up a little bit into my mouth writing that.
Extra credit for the apocalyptic fiction reference.
This policy really puts the lie to the concept of police officers as neutral gatherers of fact. If it is possible to ascertain who the police officers involved are, it would be interesting to contact them and ask them directly for a copy of their offense report. If they refused (as undoubtedly they would) it could perhaps be used for impeachment purposes at trial.