Sunday, January 23, 2005

Enforcing transparency at the district clerk

Texas House Criminal Jurisprudence Committee Chairman Terry Keel has an excellent idea: Fines for counties that don't make search warrant affidavits public.

I'd reported when I returned from Palestine, TX, in October that the district clerk in Anderson County refused to give me copies of the search warrant affidavits involving the cases of 72 people arrested in a Tulia-style drug task force sting. Similarly, Dave Mann of the Texas Observer wrote that the district clerk and District Attorney Doug Lowe "wouldn't release copies of the search warrants executed in seizing evidence."

Chairman Keel has filed House Bill 47 that would fine a county $1,000 each time they refused to release a search warrant affidavit. That would really have helped in Palestine. I understand at least four searches were conducted as part of the 72 person sweep, likely more. Anderson County has already turned me down once, and Dave Mann twice, so that's a minimum of $12,000 in fines the DA would have racked up.

Here's my only concern. Once a DA like Mr. Lowe has ordered the district clerk not to release the affidavits (I was told in Palestine they couldn't give them to me without his permission, which I could not obtain), the fine will be a fait accompli, and there will be no further incentive for the county to turn the records over promptly without a court order. Counties would have greater incentive to release that information immediately if the fines were levied at $1,000 per day. That would send the message that they can't withhold the information under any circumstances, and avoid DAs making cost-benefit analyses about whether it's worth $1,000 to improperly conceal information.

For more on the Palestine case, see Dave Mann's Texas Observer article, The Usual Suspects.

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