Monday, March 05, 2007

Support HB 767: Bring Back Transparency in Texas Law Enforcement

Lots of action today at the Texas Lege on the criminal justice front, particularly in the lower chamber. I've already mentioned the bills aimed at the Texas Youth Commission in House Corrections, some disappointing legislation up in House Law Enforcement, and the committee substitute for Jessica's Law coming up on the House floor. But when I head up to the Lege later today it won't be for any of those things (though I might watch the debate on Jessica's Law from the gallery, since the meeting I want to attend is scheduled "upon adjournment").

This afternoon the House State Affairs Committee will hear a piece of open records legislation that in my opinion would do more to reduce police and prosecutor misconduct in Texas than throwing millions of dollars at Internal Affairs investigations: Making records in closed criminal case files public.

Just like open source software is the most invulnerable to hackers, transparency in law enforcement is the cheapest, most reliable way to root out law enforcement corruption, for essentially the same reasons. (It's also the same reason that cockroaches scurry to the corners when you turn on the light.)

You hear prosecutors complain so bitterly about HB 767 you'd think it was impossible to function as an attorney when someone might later look at your work. But the bill would simply restore Texas open records law on closed files to the same standard that applied in this state for 23 years until the courts struck it down. Lots of good lawyering was done in those 23 years, and opening records after the case was done simply was never any hindrance.

It's time to restore this major gap in the Public Information Act. Something was taken away from the public in 1996 that most Texans never knew they had - the ability to exercise meaningful oversight over police and prosecutor misconduct. But even if most people didn't know this right was taken from them, it was an important and destructive loss. HB 767 is the Legislature's chance to fix it.

I'm going to the capitol to testify in State Affairs this afternoon in support of this bill on my own behalf. I prepared a little one-pager to hand out ot committee members, so I thought I'd post it here in case anyone was interested:

Support HB 767 by Dutton

Bring Back Transparency in
Texas Law Enforcement


After a court decision in 1996, the Texas legislature changed the law so that it no longer required disclosure of records in Texas criminal cases unless the case results in a conviction or deferred adjudication. For the first 23 years in the Public Information Act's existence, these records were public, but since 1996 they've been closed. HB 767 restores the original standard for closed case files.


The post-1996 law closes records in precisely the cases where the public most needs to be able to exercise oversight:

  • Cases involving police and prosecutor misconduct
  • Unsolved cases that were not pursued aggressively
  • Cases where police or prosecutors decide not to pursue charges
  • Suicides

Opening access to this information shines light on misconduct
The easiest way to sweep police or prosecutor misconduct under the rug is to close records related to closed cases. Then, all a prosecutor must do to conceal misconduct is to not prosecute the case, and nobody can ever see the potentially incriminating information.

Allows victims to see if closed, no outcome investigations were pursued aggressively
If police and prosecutors are unable to solve a crime, the family and victims often wonder if the case was pursued aggressively enough. Access to closed case files of unsolved cases would allow those families to see what was done and restore confidence in the criminal justice system.

Allows families to question findings of suicide
Sometimes when police identify a victim as a suicide, the family doesn’t find that explanation credible. Access to closed case files will help those families get closure if it was indeed suicide, and conduct further investigation if they continue to disagree with that assessment.

Will not harm victims or victims’ families
HB 767 will not endanger victims or release embarrassing or intimate information. Other provisions of the Act and other provisions of state law referenced by the Act already protect victims and witnesses personal privacy, including cases where family violence is alleged (Government Code Section 552.101).

Will not harm prosecutors' ability to prosecute
Before 1996, Texas prosecutors had already made our state among the toughest in the country on crime, all the while releasing closed case file information when requested. No one claims prosecutors or police did not do a thorough job during that long period of openness. HB 767 only makes public information which Texans were able to see for decades before our access was taken away.

“Sunlight is the best disinfectant” in the affairs of government, and opening records about closed cases both protects law enforcement's ability to prosecute cases and the public's ability to exercise oversight regarding the criminal justice system.



Catonya said...

Would you give an example scenario that describes what isn't currently public information but would become public under 767? (please)

Gritsforbreakfast said...

Sure, Cat - Actually, Ricky's case is probably one of them affected, or could be.

When the suspect dies pursuant to arrest or commits suicide, the investigative files, DA's files, officer notes, everything is a closed record if the DA or police agency chooses not to disclose it. OTOH, when someone is successfully prosecuted all that information becomes public after the case is closed.

So say an officer shoots someone and a grand jury "no bills" the officer. Before 1996 in Texas the family of the person who was shot could view police and prosecutor files in the case (except for grand jury transcripts, and with certain personal privacy and other exceptions in the law) and see for themselves whether or not they're satisfied with the investigation. Under current law, it's the DA's and police department's discretion what to give up. But often they're the one the citizen requestor is unhappy with.

Same with investigations of suicides, especially in jails and prisons. If the same person were murdered and someone convicted, the files are open. Call it a suicide and say it's a closed case, or even just a murder with no prosecution, the file is closed. That gives HUGE opportunities for coverup, because the single best way to avoid prosecution yourself for misconduct, if you're a cop or a DA, is to simply not pursue charges.

That's when we need open records most! Opening records would probably, in the end, help deflate some of these situations more than secrecy, which just leaves people resentful even when law enforcement did nothing wrong.

Another common complaint comes from people who think police didn't do enough to investigate. If they can see the file for their own closed case they can complain to supervisors or their city council more credibly with better information if they don't think enough has been done.

Basically closed, unprosecuted cases are where most average people would need more records open. When prosecutors win typically everyone is satisfied with the outcome except the defendant, which is fine unless e.g. they're innocent!

Catonya said...

Thank you!
Awesome explanation - might consider adding it to the original post. :)

I'll be keeping my fingers crossed for 767.

Anonymous said...

When is the Lege going to look at the DA's office? That is the most corrupt office in the State of Texas and should be dealt with appropriately. Get rid of some the DA's who think they are above the law and who have been in office too long. Set legal limits on how long a DA can serve as DA and then when his/her term expires, they can not run again. For instantce. the DA in Harris Co. who is the most corrupt DA in the whole State and yet he get re-elected over and over. He may meet his match in 2008 though and it is about time. He has done more to corrupt this County than anyone before him. And Tommy Thomas, how many times has his son been arrested and let go? Tell me this is not a fixed County!!