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