The Dallas County district attorney’s office is battling a judge over whether prosecutors should routinely research and disclose the criminal histories of police officers who testify.The DA's Office, though, says the feds won't allow them to perform such searches:
Criminal Court Judge Julia Hayes has on at least two occasions in recent weeks ordered prosecutors to determine the criminal background histories of police officers testifying in her misdemeanor court so that the information can be shared with defense attorneys. The district attorney’s office has refused, saying the law forbids handing over the information.
Hayes ordered a prosecutor held in contempt for refusing to comply with her order. In response, the DA’s office on Friday petitioned the 5th District Court of Appeals in Dallas to compel Hayes to withdraw the order about the records of officers.
Hayes, a Democrat in her first term, and public defender Elizabeth Perry, who is representing a defendant charged with family violence, declined to comment.
Defense attorneys say they worry that the law allows prosecutors to hide the background of police officers.
Defense attorney J. Michael Price II said that prosecutors already run the records of civilian witnesses and jurors and that he doesn’t see a difference in including officers.
“I think truthfully, they don’t want to run them because they don’t want to be in the position of finding that dozens of officers or more may have criminal backgrounds,” Price said.
A September 2001 letter from the U.S. Justice Department that prosecutors attached to their petition said that producing the records — even under a court order — violates federal law because it is an invasion of privacy. The letter was written to the Texas Department of Public Safety after a court order requested similar information in another Texas county.I must confess, when we're talking about information in possession of the state, I don't see much difference in whether the info is in a database or in the prosecutor's file. It's well-established law that the state may commit a "Brady" violation, for example, even if law-enforcement never shared the information with prosecutors. And if it's true (as I'm almost sure is the case) that prosecutors run criminal histories of other witnesses, I don't particularly understand why police witnesses should get a pass.
The letter says that there is a difference if a criminal history already exists in the prosecutor’s case file. But the courts cannot compel prosecutors to create the information.
Also, it's interesting that the letter in question is from September 2001, since almost immediately after that the feds began scaling back privacy restrictions and allowing much more widespread sharing of data among law enforcement in the wake of the 9/11 attacks. And I'm surprised, if the DA's position is accurate, that there's not a prior appellate case on point as opposed to some decade-old administrative memo.
Should police officers' criminal history be revealed to defense attorneys? If not, why not? And what criteria might distinguish police from other witnesses for whom prosecutors routinely run criminal histories?