Wednesday, December 20, 2006

Blog debate: Should/does Dallas DA have "open file" policy?

My suggestion following the lead of a DallasBlog commenter that the new Dallas DA establish an "open file policy" for the office has generated quite a bit of blogospheric buzz.

Texas prosecutors must disclose "Brady" material to the defense, i.e., any potentially "exculpatory" material, but until trial, prosecutors aren't required to reveal what evidence they're relying on to accuse the defendant. Some DAs, on their own initiative, have implemented "open file" policies and simply allow defense counsel to see all evidence that's not expressly privileged under law. That speeds up the process all around and avoids potential Brady violations.

Over at Unfair Park, Robert Wilonsky recalled that during the campaign, Watkins actually promised to open up prosecution files. Writing just after the election, Matt Pulle wrote in the Dallas Observer:
Of chief concern to local lawyers is whether Watkins will follow up on his promise to institute a true open-file policy, which allows defense attorneys to have access to parts of the prosecution's criminal case, including police reports and witness statements. Tarrant County, which isn't exactly known as a liberal's vision of Xanadu, has such a policy, which both sides say speeds up the prosecution of cases. It's also a key safeguard in preventing the conviction of innocent people by allowing the defense counsel to—here's a revelation—mount an adequate defense.

"There is a hope now that Craig is going to establish a true open-file policy and that we will be able to get copies of police reports and all the things we should get anyway without there being roadblocks," Grant says.

So it really wouldn't be out of the question that he really might enact this reform after he takes office in a couple of weeks. (I still wish the Lege would mandate it for ALL DAs.)

Not everybody thought this was necessary, though. A DallasBlog commenter disputed the suggestion, claiming:

The Dallas County DA's Office has an open file policy, and it’s been in place for years. And even if they didn’t have such a policy, prosecutors remain under the duty to comply with all requirements of Brady v. Maryland, as well as all statutory requirements pertaining to the disclosure of information to the defense. I thought I’d point that out before you two flaunt your ignorance any further.
Well, the existence of Brady v. Maryland is a red herring, but I was taken aback to see the claim that Dallas already had such a policy. I'd hate to "flaunt my ignorance," after all. I felt a bit better about my characterization, though, when one of Grits' blogger friends, a former Dallas public defender who until very recently worked felony cases in Dallas, responded disputing this assertion:
The Dallas DA's Office does NOT have an open file policy. They give you what they want to give you and nothing more. Many of the prosecutors I worked with there showed me the entire file 100% of the time. Other prosecutors absolutely would not. There was no standard open file policy, and anyone who says there is is lying or misinformed.
Even so, I wanted to make certain I hadn't misstated the Dallas DA's policy, so I emailed a friend in Dallas who practices every day in the criminal courthouse. He read my post and the DallasBlog string and here's how he responded:
Txpublicdefender is right, there is no open file policy, at least not the way Tarrant County's has operated. As I understand it, in felony court you can usually see the DA's file, but never make copies. As there is no official policy (or it is roundly ignored by the ADA's), how much you see is controlled by which ADA you are dealing with and your personal relationship with them.

A former Tarrant County prosecutor explained to me that they kept the day's files in a box in the courtroom and gave the file readily to the defense attorney. They also kept the privileged material (NCIC/TCIC, prosecutor notes, witness statements, etc) in a brown envelope marked "privileged." You could see the entire file (minus the privileged material) and make copies. It's a much better system than here in Dallas. I asked several attorneys this morning and the consensus seems to be that, regardless of whether there is or isn't a policy, the how much info you see depends on which ADA you have. Sometimes the first time you get a copy of the offense report is the morning of trial (yeah, that's fair!).

In the misdemeanor courts in Dallas, it's even more hit or miss. I once had a copy of their "open file policy" but unfortunately I can't find it anymore. Practically speaking, it also depends on which ADA you are dealing with and how paranoid they are about their file. Some are good and let you see and copy nearly everything; others will give you the top sheet of the arrest report and the (usually one paragraph) narrative describing the offense and arrest. I've had some that made me take notes in their presence rather than let me make copies (this seems to be the bottom line in felony court, too). I finally brought a word processor up to work and typed the file word-for-word - until they wouldn't let me bring the word processor into their workroom any longer...

Bottom line, they desperately need a official policy that is evenly enforced.
At that point I felt pretty good about my assertion that Craig Watkins should implement an open file policy like the one in Tarrant, then lo and behold Mr. Wilonsky comes up with another bit of critical detail in yet another post on the subject (thanks Robert, for following up!), this time posting an actual scanned copy of the DA's so-called open file policy. Seeing the memo completely cleared up my confusion; that's not an open file policy at all - literally in name only!

First, it identifies several pieces of information that defense counsel may "read," but unless the ADA's in a good mood they may not make copies. Documents like arrest reports, witness statements, lab results, and other key data aren't given to the defendant under this policy until the day before trial! That's especially ridiculous since barely any Texas cases go to trial: statewide >99% end in plea bargains. That means in the vast majority of instances Dallas prosecutors may never be required to reveal their evidence.

So in my estimation, the defense lawyers are right: Prosecution files are not "open" to defense counsel in any meaninful sense. Craig Watkins definitely should look westward to Tarrant County for a more meaningful model for transparency.

What's more, it's cool for bloggers and commenters to vet the issue pretty darn thoroughly in basically a 24-hour span. I like it. :)

UPDATE: More from the Dallas News, which informs us that Watkins' new first assistant,
Ms. Moore said she anticipates implementing a broader open-file policy similar to one already in place in Tarrant County that allows defense attorneys to view the contents of case files.

"It helps prevent convicting innocent people when you say, 'Here's my file. You're welcome to everything in it. I'll convict you based on the truth,' " she said.

NUTHER UPDATE: Thanks to a commenter for pointing out that in Abilene a lawsuit has been filed challenging the Taylor County DA's closed file policy by the Southeastern Christian Association - they think a juvenile defendant should have had access to the DA's accusatory information before a court hearing that determined he would be tried as an adult. (Here's the original complaint.)

ONE MORE: Matt Pulle at Unfair Park tells us definitively: DA Does Have An Open File Policy ... Not


Mike Howard said...

Great coverage Scott. You got to the bottom of this mess very fast - and from Austin!

Manuel said...

My a name is Anita I came to the realization of the broken down Texas Prison System when my 16 year old son was charged with murder on May 14, 2005 and then with the aide of juvenile detention officers on May 29, 2005 my son was let out. He was found on June 11, 2005 sitting on bench at a High School in San Diego, California. He was extradited back to Abilene, TX two weeks later after Governor Rick Perry signed his ticket back to Texas. He was certified to stand trial as an adult on December 19, 2005 and was transferred to the Taylor County Jail and incarcerated amongst adult men. So my nightmare begins into a journey that enlightened me into the racial disparities of the Texas legal System. I started collecting stories while waiting to visit my son at the Juvenile Detention Center, and any where else I had the opportunity to, my son was also collecting stories when one day he met Moishe a 15 year old youth whom was brought in to the juvenile detention center on July 11, 2005 and was also being charged with murder. One day Moishe was visiting with his mother Deborah when my son in his desperate plea for help screamed thru the air-duct vents where Moishe and Deborah sat visiting "Call my mom! Call my mom!" Deborah and Moishe astonished as to what they were hearing she scribbled the number on her arm. That’s when two determined mothers joined forces and the WEST TEXAS BEAT was established. With the assistance of the Southeastern Christian Association a nonprofit, human rights organization based in Houston, Texas. The national president is Dr. LeRoy Gillam with his Executive Assistant Zena D. Crenshaw, presently a lawyer before the U. S. Court of Appeals for the Seventh Circuit and Executive Director of National Judicial Conduct and Disability Law Project, Inc. (NJCDLP) as well as The American Whistleblowers' League, a project of NJCDLP. [See:] Her own record of being professionally disciplined for publicly alleging judicial misconduct is a subject of Zena is also an administrator for The High Grass Council which manages the national "Speak Up" campaign featured at Our journey began into the broken down desperate lives of mother’s, sisters, brothers, and families that had been torn apart by the cruel Texas system of manufacturing our children into the dark and intricate world of incarceration. A web-site for the residence of Taylor County Tx was established to collect the many horror stories throughout the “Friendly Frontier”. On October 11, 2006 a lawsuit was filed in the Northern District Court of Texas under Moishe Curtis Turner by his mother and next best friend, Deborah Johnson and Juan Manuel Albarado by his mother and next best friend Anita Guajardo, challenging the long sitting District Attorney James Eidson in his personal capacity and not as District Attorney of Taylor County and his Closed File Policy. Moishe Curtis Turner (black youth) was certified to stand trial as an adult on October 19, 2005 and transferred to the adult County Jail in Taylor County Abilene, Tx where he has been denied his education and put in lock-down behind tobacco many times; he is still awaiting his trial. Juan Manuel Albarado (hispanic youth) was certified to stand trial as an adult on December 19, 2005 and transferred to the adult County Jail in Taylor County Abilene, Tx where he has been assaulted twice by adults and put in lock-down continuously for tobacco; he is still awaiting his trial.
Anita Guajardo

Anonymous said...

Houston is worse than any other city in Texas. The Prosecutor's office should have to follow the same rules, but they seem to think they are there own country and can do whatever they wish. There is not telling how many innocent people they have sent to prison due the the DA of Harris County and he should be sitting on a bench in some priosn himself.

Anonymous said...

This all explains, yet again, why we once said "never get caught in Texas."

AustinDefense said...

I find the use of the phrase by Ms. Moore saying she anticipates implementing “a broader open file policy” interesting. “Broader?” Shouldn’t “open file” mean everything?

As long as you have prosecutors deciding how “broadly” to open their files to the defense, you will still have problems.

The only real long term solution here is a statute mandating that prosecutors copy everything in their file and give it to the defense lawyer. Follow that up with a statutory prohibition against the introduction of anything related to “things” not turned over to the defense, and you’ll have prosecutors tripping over themselves providing discovery.

Folks out in the general public would be shocked (they always are when I tell them, anyway) that the defense does not have a right to everything in the State’s file.


Gritsforbreakfast said...

Jamie, to be fair that use of the word "broader" was the reporter's paraphrase. Moore's quote said "Here's my file, you're welcome to everything in it."

What I took from the story was that they'd do something similar to Tarrant. Mind you, I haven't seen Tarrant's policy, but if you read this Unfair Park piece, the attorneys who practice in both counties seem to think it's a lot better than Dallas.

you're right, most folks would be shocked, and are, when it's them in the defendant's chair.

John D. McLauchlan said...

There's the rub. Trying to get the public or the legislature to care about the rights of the accused until it's them in the dock (Pardon the British reference). No one seems to care either about indigent defense until it's their poor child, cousin, parent, spouse (take your pick) who's in jail or detention. Then they're all for having a lawyer appointed to represent them or their loved one.

It's one thing that adult defendants are faced with trial by ambush, but how many people realize that one of the juvenile justice reforms of the 90s was to put them under criminal (ie, not entitled to squat) discovery rules instead of the broader civil discovery rules juvenile cases were tried under prior to that? All the while the fiction is recited that juvenile cases are 'civil' in nature. Fortunately, most juvenile prosecutors I've known have an open file policy, but that's just one county and not required by law. So endeth my rant for now...