Tuesday, December 19, 2006

New Dallas DA should signal real change with "open file" policy

Via Carolyn Barta at DallasBlog, new Dallas District Attorney Craig Watkins announced this morning that "Terri Moore, former deputy chief of the criminal division in Tarrant County, will serve as his first assistant. Dallas defense attorney Kevin Brooks will serve as Trial Bureau chief. Toby Shook, the unsuccessful Republican candidate for D.A. and chief of the felony trial division, has informed Watkins that he will leave the D.A.'s office." (More detail from Unfair Park.)

A commenter at DallasBlog offered a great suggestion that I think would signal Watkins' intention to change not just the image, but also some of the problematic practices at the office that gave us the fake-drug scandal and ten recent DNA exonerations where the wrong people were convicted of major crimes: The new Democratic DA should announce an "open file" policy similar to the one Ms. Moore worked under in Tarrant County.

Grits discussed the problem of closed criminal case files the other day upon reading the interim report of the House Criminal Jurisprudence Committee, which analyzed the question of "reciprocal discovery" in criminal cases but punted on making a recommendation. In response I wrote:
The reform needed here isn't "reciprocal discovery," but simply to mandate that all Texas prosecutors maintain an "open file" policy to let defense counsel view and make copies of any documents they deem relevant to their defense. The system works well where it's been implemented, and where it hasn't it's a source of constant grousing and wasted time for the already clogged courts.
Mr. Watkins enters office after an historic election in Dallas where Democrats took control of the DA's office and many judgeships for the first time in two decades. He should take this opportunity to set an example for other jurisdictions and give voters a reason to think it matters which party wins these relatively little-watched races.

Creating an open-file policy would offer both symbol and substance to Watkins' promises for reform, without cleaning house or disrupting the work of the office. And since his new first assistant has experience working under an open-file system in Fort Worth, the transition should go smoothly. That's a damn fine suggestion from a blog commenter - Watkins should take it.



elvez1975 said...

Prosecutors too often forget that their job is not to earn as many convictions as possible, but to do justice. (Texas Disciplinary Rules of Professional Conduct, Rule 3.09, Comment 1: "A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate.") An open file policy best achieves this end by compelling the prosecutor to be honest about what sort of evidence the State has. It removes some of the gamesmanship from the equation.

I practice in a county that has an open file policy. In my opinion, it is the most efficient system of disposing of cases. With a few exceptions, those cases that need to go to trial, go, and those that don't, don't. However, I do wonder at times if an open file policy does encourage too much plea bargaining (or if it's just bad lawyering that would continue regardless of what sort of discovery policy a prosecutor's office has).

John D. McLauchlan said...

I think open file policies prevent a certain amount of bluffing on the part of prosecutors. I certainly prefer it to trial by ambush. I do agree that bad lawyering isn't going to be affected by a DA's file access policy.

Gritsforbreakfast said...

Thanks, elvez. I hadn't thought of this:

"I do wonder at times if an open file policy does encourage too much plea bargaining"

I'll bet you're right it may contribute to the plea mill factor. Still, on balance, it just seems unfair to ask someone to enter a plea agreement when their lawyer can't see the police report. If pleas were rare, it'd be different, but we're talking about >99% of TX cases. If without open files that figure went to 98%, and I doubt it'd go that low, it'd still be unfair for the vast majority of folks.

And to TexPD - "trial by ambush" is exactly right. Its corollary is "plea bargain by bullying and intimidation." Best,

Anonymous said...

Don't let them fool you into thinking there is real change going on. The only difference between Dallas and Fort Worth is that there, attorneys can get all the "available" documents online.
In Dallas you actually have to come to court and look in the file, or request that a DA copy the file for you. If you do it in advance and are nice about it, it will be done.
Or you can come in and make notes. No DA should let a defense attorney have the file to go make copies. I wonder how many lost files and documents there would be if that was the practice.
In 10-20 years when dallas gets on board with scanning all relevant documents and then implements a computer based file system like Fort Worth, the defense bar will stop bitching about the open file policy. Less work for them (i.e. don't have to be polite and ask for something, nor have go pick it up).
As for the system, the DA's in dallas have been praying for years, but alas, the commissioners decided to blow that money on a worthless system.

Gritsforbreakfast said...

I addressed the details of that current "open file" policy, which Unfair Park published in full, here.

I think there are more differences than just whether it's online. Best,

Anonymous said...

gosh you are obivoulsy not familiar with the dallas county district attorney's office policies. any defense atty can walk in at almost any time and look at the entire file not including, the NCIC (criminal record) which is strictly for law enforcement purposes.
The main difference btwn dallas and tarrant counties policies is that tarrant counties is even more accessible because everying is on computer.

Gritsforbreakfast said...

Anonymous, you're just wrong.

The Dallas DA's policy was posted online on Unfair Park. What you wrote, "any defense atty can walk in at almost any time and look at the entire file" - flatly contradicts the written policy as well as defense attorneys accounts. Wherever you're getting your information, it's incorrect.

Anonymous said...

All of this makes me happy that I practice only in Tarrant County. Sounds like a mess!