Monday, January 26, 2009

Secret police reports are anathema to justice

Kudos to new Travis County DA Rosemary Lehmberg for altering her department's longstanding policy of making defense lawyers copy police offense reports by hand instead of giving paper or electronic access. Keith Hampton, the legislative chair of the Texas Criminal Defense Lawyers Association, wrote in the Austin Statesman ("Key legal reform would serve the interests of justice and taxpayers," Jan. 23) about the new policy change, contrasting it with Williamson County, where such reports are kept secret until trial:

For years, the court-appointed lawyer would appear in court to read the police report which he would then laboriously write down in his notepad. This elaborate discovery process meant tax-paid hours for lawyers to hand-write reports which today can be transmitted electronically and at virtually no cost. The Travis County district attorney's office has taken this quill-and-ink criminal procedure directly into the electronic age, saving time and money, and ultimately contributing to justice.

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.

The police-report secrecy policy is driving lawmakers to consider discovery reform once again. One measure would mirror Lehmberg's approach as a model for the rest of Texas, which leaves discovery largely in prosecutors' hands. Another proposal would create a more elaborate, mutual discovery process. In either case, Travis County is ahead of the rest of the state and has demonstrated how efficiency and fairness are not mutually exclusive.

9 comments:

Richard D. said...

Funny, Grayson County has given the defense barr a full copy of the offense report for years. Glad to hear Travis County finally figured out what we did years ago. For the system to work, and even though it is "adversarial", it works better when both sides work together.

Fair is fair. That is the way our system is supposed to work. Kudos to Travis county.

Don Dickson said...

In a lot of cases, having the OR helps me know if my CLIENT is being straight with me. I can't begin to think of a sound reason not to give a defense lawyer a copy of the OR.

Anonymous said...

Scott,

I somewhat understand the discovery process but if a county like Travis was being "hogheaded" about providing the information (reports, statements, field notes, photos, etc.), would it be feasible for defense attoreny's to request the information under the Open Records Act?

Rage Judicata said...

10:08:

Ongoing investigations are generally an exception to the FOIA.

Anonymous said...

How is a defense attorney supposed to be able to provide a solid defense if the arresting agency did not give them a copy of an arrest report?

If an attorney is defending a person properly, how can they be expected to do so without the copies of all the original documents? Great Job to Travis County for finally allowing this, but why did it take so long?

Anonymous said...

Thanks Rage.

It just seems if an arrest has been made that release of any information under FOIA would not hinder or interfere with the prosecution of the case.

It just makes sense too that it would not interfere with the investigation if an arrest has already been made.

Are discovery motions an order signed by a judge to release the information requested?

A lot of the cj system often did not make sense in my 25 year career. Just an opinion from a retired peace officer.

Sam said...

Comal County has been doing that for several years and gives Court-appointed Counsel for indigent defendants free copies of the video tapes as well, either on tape or on dvd's. This policy started under the former DA now Judge Dib Waldrip and has continued under his successor Geoff Barr.

Anonymous said...

So Mr. Bradly won't give out the copy of the reports to Defense Attorneys; why does this not surprise me?

Maybe the people of Williamson County will one day wake up and vote Bradley out of office. He is a thorn in everyone's side and I am very glad he does not live where I live. His political career would have been over many years ago. It is beyond me why he continues to get elected, he is a disgrace and should be the laughing stock of Williamson County. He gives District Attorney's all bad names!!!

jurishope said...

What can we do to change this secret practive iin Williamson County? Can we give Mr. Bradley and Williamson County a lot of publicity, especially since they seem to thrive on national attention.