Monday, April 11, 2005

Don't Close Autopsy Reports

Who would want to look at autopsy reports? You'd be surprised.

This afternoon at the capitol I testified on behalf of ACLU of Texas in the House Law Enforcement Committee against
HB 2910 by Davis, which would give local prosecutors discretion to close autopsy records they deemed might interfere with detection, investigation, or prosecution of a criminal homicide. The records could still be gotten through a court order, but someone would have to file suit to do so.

Most people have never seen autopsy records, and if you're one of those folks, as far as I'm concerned, consider yourself lucky. For those like myself who respond to allegations of police misconduct, though, they're one of the core records available, obviously, to help you figure out what happened when somebody dies at the hands of the police. There are a lot of other different societal interests that may need to look at them, too, not just criminal investigators.

In my case, the autopsy files I've looked at all related to officer-involved shootings, people who were beaten to death by police, or who otherwise died in police custody. In recent years, in those instances, I was looking into a case on behalf of the ACLU. When an officer shoots someone in a disputed situation, often their family or loved ones approach ACLU, NAACP, or some other group asking them to help with the case. Any responsible organization will investigate the case first, to the extent possible, before launching into what inevitably would be a costly and expensive lawsuit. Frequently, upon examining autopsy and other public records, ACLU may decide not to move forward. Under HB 2910, though, in that situation you'd have to file suit to gain access to those currently public records, even if the shooting was completely justified, just to get enough information to evaluate the case.

That aspect of the bill is bad for law enforcement. ACLU and similar groups need to be able to evalaute autopsy reports and other public records without having to formally litigate, or else litigation will be the only way possible to investigate the case. That has real-world political implications for the department and personal implications for the officer involved. When ACLU files a lawsuit alleging that Officer John Smith improperly shot someone, it doesn't matter what caveats are in the press release -- the media and opinion leaders will take the lawsuit to mean ACLU is accusing Officer Smith, when really we wouldn't have enough information to accuse him. Instead, the the lawsuit would become the only available means to get basic information about these high-profile, high-emotion cases. The Legislature shouldn't encourage more such lawsuits to be filed than necessary, I told the committee.

Another disturbing aspect of the bill would let local prosecutors make the determination whether an autopsy report would interfere with detection, investigation or prosecution of a criminal homicide. Right now, under the Texas Public Information Act,
such determinations are made by a disinterested third party -- either the Attorney General, or, if the parties disagree with his decision, a state district judge. To let the agency from whom the documents are being requested decide whether an exception applies, I told them, would enshrine an irreconcilable conflict of interest into the process.

Finally, I expressed concern that defendants and their legal counsel should be given full access to autopsy records immediately upon request. From my conversation with Rep. Davis' staff, I didn't think he intended to keep defendants from having access to records about their case. But without some clarification that might be an unintended consequence of the bill.

The Daily Newspaper Association submitted written testimony in opposition. Somebody from the Travis County Sheriff and a couple other law enforcement types were there to support the bill, telling the committee that releasing autopsy information interfered with their investigations. In general, though, their arguments were pretty speculative -- mostly conjectures about what "might" happen. It's hard to tell if the committee was swayed. Autopsy records have been public in this state for a long time and we prosecute plenty of murderers here.

HB 2910 was left pending. When I left, they had a long agenda ahead of them, and another ACLU Lege team member was waiting to testify regarding meth legislation.

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