Wednesday, May 16, 2007

Lege gives crooks more data access than press and public

A bill that finally passed the Texas Lege on Tuesday will give criminals more rights to access key law enforcement documents than the press and the public.

The House yesterday finally passed SB 244 by Williams that would allow search warrant affidavits to be temporarily closed from the public. The problem is, they still have to give a copy to the person whose home or property was searched. So the alleged crook who's targeted can know what's in the affidavit, but the local newspaper reporter cannot.

Since the reason for new secrecy provisions is to protect criminal investigations, this makes liitle sense. The alleged criminal gets all the information immediately, so any informant would be burned, any wiretap would be revealed, any source would be discovered as soon as they saw it.

All SB 244 does is make sure that the public isn't as well informed as the crooks. This is all about PR, not protecting investigations. Earlier I wrote that "This bill only benefits those who want to conceal information from the press and the public that the bad guys already possess. It's good for crooks but bad for democracy."

This is a bad bill but it would be a shock at this point if it did not become law - I certainly doubt Gov. Perry will veto it, though I sure hope he will.

8 comments:

Anonymous said...

I believe that you are confused about what SB 244 does.

In an earlier posting you complained "But the final line in the bill declares (for obvious due process reasons) that no such order may 'affect the right of a defendant to discover the contents of an affidavit'!!"

You seem to think that the crook gets the contents of the S/W affidavit immediately while the press and public are forced to wait. That is wrong.

First, typically when a search warrant is executed there is not yet a defendant. The most likely time you would want to seal an affidavit is when you don't want to tip off a *potential* defendant. If there is no defendant there will certainly be no immediate discovery.

Second, the bill's reference to "discover" seems to be a reference to TEX. CODE CRIM. PROC. art 39.14. That provision requires at a minimum (1) a motion, (2) good cause, and (3) an action pending in the court.

If you would like to see a case which demonstrates what an excellent idea SB 244 is you should read Houston Chronicle Pub. Co. v. Edwards, 956 S.W.2d 813
(Tex.App.-Beaumont 1997. orig. proc.). In that case the trial court made a finding that "the State has shown a compelling need to shield the affidavit from the public eye to preserve the integrity of an early and ongoing investigation into the capital murders of two young women." The trial court was nonetheless mandamus-ed because art. 18.01 demanded that the S/W affidavit be released.

Waiting 30 days for the public to read a S/W affidavit seems like a small price to pay ensure that someone doesn't get away w/ capital murder.

Gritsforbreakfast said...

I'm sorry but I'm not confused. You're interepretation of SB 244 is flat out wrong. Testimony in committee was that the person whose access won't be restricted is the person who's property is targeted in the warrant. It's their rights being infringed and they're the ones you must disclose cause to.

Second, there is NO criminal discovery in Texas. SB 244 allows targets of searches to request and receive copies of the affidavits before the media.

In the case you mentioned, was there any demonstrable harm done (in the real world, not in theory) from releasing the information? I doubt it, and I've never heard of that happening outside the fantasy world of prosecutors arguing for greater secrecy with no real justification.

Anonymous said...

The relevant text of SB 244 reads:

(d) An order issued under this section may not:

(1) prohibit the disclosure of information relating to the contents of a search warrant, the return of a search warrant, or the inventory of property taken pursuant to a search warrant; or

(2) affect the right of a defendant to discover the contents of an affidavit.

While I have no idea what was said at the hearing, the courts will not transform “a defendant” into “the target of the search.” See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex. Crim. App. 1991) (“If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.”). "[A] defendant" plainly means something different that a mere target of a search.

As for the assertion that there is “NO criminal discovery in Texas,” you should read art. 39.14. The statute is entitled “Discovery.”

Here is the most recent case to mention art. 39.14. Pena v. State, --- S.W.3d ----, 2007 WL 1289426 (Tex.App. – Waco May 2, 2007) (“[A] criminal defendant has a right to inspect evidence indispensable to the State's case because that evidence is necessarily material to the defense of the accused.” McBride v. State, 838 S.W.2d 248, 251 (Tex.Crim.App.1992); accord Nowling v.. State, 801 S.W.2d 182, 185 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd); see also TEX.CODE CRIM. PROC. ANN. art. 39.14(a) (Vernon Supp.2006)) (defendant has right to discovery of ‘tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies’).”)

Finally, the notion that a 30-day delay is “secrecy” is ultraist hysteria.

Anonymous said...

I suspect that your recollection of the hearing relates (d)(1). The S/W etc must be revealed to the target of the search. There shouldn't be anything in those materials which should ever need to be sealed. What I'm talking about is the S/w *affidavit.*

Gritsforbreakfast said...

I'm not a lawyer, but I know criminal defendants get no discovery in Texas besides Brady material, whatever the title of the Code section. However, if what you're saying is accurate it's a worse bill than I thought - you're now saying my home can be searched and they don't have to tell me on what basis.

And yes, making it secret up to 90 days IS secrecy, not hysteria, because in the real world timely information is as important as its ultimate availability. 90 days gives police and prosecutors plenty of time for press conferences and news interviews to spin the case to the media, e.g., and I'm sure there could be other motives.

This is only about PR, not safety - I asked ibefore f there was an instance where this caused real-world harm. No one has ever named any, you didn't either. This is a solutionlooking for a problem.

JT Barrie said...

It's all a matter of "going on the record" - a HUGE problem for police who hate actually being held accountable for what they do or say. Again I refer you to John 3:20: "Those who do evil hate the light for they don't want others to know what they do." If I were lying about drugs to the public and effecting subterfuges and ruses to conduct the drug war I would want to minimize "on the record" events in my life too.

Ken Sparks said...

The Texas discovery statute is a minimal one, but it does exist. Efforts to expand it in the past have been maet with resistance by the defense bar since they do not want to agree to reciprocal discovery. The statute itself reads as follows:
Art. 39.14. Discovery

(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.

(b) On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins.

Gritsforbreakfast said...

Well, y'all really did slip a fast ball by them, then, I didn't understand it that way. If that's right then the bill is truly Kafka-esque, with people searching homes and property without needing to disclose why for up to 3 months afterward. Meanwhile the local version of Mike Nifong is grandstanding in front of the TV cameras. (In my minds eye I picture John Bradley milking his pet reporters at KXAN.)

JT's biblical homage is entirely appropriate here: Those who would do evil hate the light. If you've got reason to search my house, tell me what it is or don't do it! I'm not even sure that will withstand constitutional scrutiny, though IANAL. And to top it all, there is still no example of any real-world harm. The Governor really should veto this piece of junk.