Wednesday, February 23, 2005

Committee: Fine counties concealing search and arrest warrants

Though I posted two items already about yesterday's House Criminal Jurisprudence Committee hearing, I didn't mention why I was there for that six hour marathon: to testify on behalf of ACLU of Texas in support of Chairman Terry Keel's HB 47, which would allow for civil fines against counties that do not make search and arrest warrant information public. (Grits has written previously on the bill here. See also the Austin Statesman's coverage from last week.) The committee passed the bill out unanimously at the end of the night.

One's friends and opponents at the Legislature are astonishingly fluid; the last two-day-stretch for me was a great example of that. On Monday, ACLU opposed Chairman Keel's bill giving Austin PD jurisdiction on the University of Texas campus. Literally the next day I was back up there supporting this one. That's the way the legislative process goes sometimes. Most times.

Naturally, as luck would have it, mine was the very last bill called, and I was the last and only speaker on the subject. Ann was hovering in the back, but even diehards Charles and Patricia Kiker, down from Tulia, Texas to represent Tulia Friends of Justice, had already left for the evening when my name was finally called.

I didn't have a handout, but I thought I'd briefly recount the arguments made in committee on the bill's behalf from my notes.

Search and arrest warrant affidavits are lynchpin documents. They contain key information found nowhere else in the public record. Their secrecy creates many legitimate public policy concerns that are worthy of the gravity of the fines proposed HB 47. I've heard examples of counties concealing search and arrest warrant affidavits from people around the state in addition to my own experiences; this is not an isolated problem.

I had my own recent experience being denied access to these critical records. In Palestine, last fall a drug task force arrested 72 people based on the testimony of a single confidential informant, claiming they were all participating in a "crack distribution ring." The existence of 72 crack dealers in this small, rural town seemed highly unlikely, so Texas Observer reporter Dave Mann and I drove up to check out the situation. We were denied access to any of the basic documents about the cases, including these search and arrest warrant affidavits and even the indictments. The district clerk told us she couldn't release the information without permission from the District Attorney, and they said the documents were "sealed" pending the arrest of the last of the defendants. We asked to see the files for those who were already arrested, but were told we couldn't have them.

Dave Mann went back up to Palestine a couple of weeks later, and the results of his investigation were chronicled in his November article in the Observer, "The Usual Suspects." All but a handful of the 72 accused crack dealers had been captured by then, but still, he wrote, officials "wouldn't release copies of the search warrants executed in seizing the evidence." Clearly, that's exactly the situation Keel's bill is designed to affect.

I told the committee I didn't understand the fine structure in the bill. For example, in Palestine, if I asked for all 72 arrest warrant affidavits and four search warrant affidavits, was that one request that might garner a $1,000 fine, or 76 requests that would result in a $76,000 fine? Chairman Keel said that language was intentionally vague, and its interpretation would be left to the discretion of the Attorney General.

Finally, I suggested that the reason DAs want to conceal information in cases like Palestine might be that they're trying to cover up shoddy work by law enforcement or flimsy evidence that may not withstand scrutiny. In that case, a
$1,000 fine may not be steep enough; the bill might establish a "price," I cautioned, rather than an "incentive." Chairman Keel replied that he didn't think too many prosecutors would flaunt the law in the face of possible fines, but promised that if this legislation did not fix the problem, in two years he'd come back to enact criminal penalties for non-compliance.

With that, I told the Chairman he had a fine bill, thanked the committee, and sat back down. Soon thereafter the members still remaining voted the bill out of committee unanimously, 6-0. I'm sure my testimony was essential to that outcome, don't you think? ;-)

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