Friday, June 08, 2007

Secrecy bill for search affidavits deserves Governor's veto

Governor Perry should veto legislation pending before him that allows prosecutors to temporarily keep secret critical public data about police searches. So many different people rely on this information besides police and prosecutors, the change would inevitably spur unintended consequences that reduce accountability and public oversight of police and prosecutor misconduct. Jennifer Lafleur, who writes the Citizen Watchdog column for the Dallas Morning News, reminded me of SB 244 in a recent column, declaring:

A bill awaiting the governor's signature would allow sealing of search warrant affidavits for up to 60 days – 30 days with a possible 30-day extension. Sealing is not automatic. A prosecutor must ask a judge to seal an affidavit if disclosure would jeopardize confidential informants, if it would harm a continuing investigation or if it contained information from an unexpired court-ordered wiretap.

Historically, such affidavits were open to allow public scrutiny of law enforcement activities. In cases where names of confidential sources needed to be protected, they were redacted.

This was a solution looking for a problem, more about managing public relations than protecting sources. The Governor should give it the axe.

Search warrant affidavits are key public documents in criminal cases that have been public records since time immemorial. The subject of the search typically knows the cause and protections already exist to preserve informant confidentiality, so the only folks kept in the dark by SB 244 are the press and the public. That should not stand.

Mr. Governor, please veto SB 244!

Go here to let Rick Perry know if you agree.

: Don't conceal search warrant affidavits!


Anonymous said...

There is no reason to conceal any piece of evidence, any witness statement, or any interview in a criminal prosecution. Anything that is available to one side should be freely available to the other side. If you want true justice and fair trials, that's how it has to be.

Anonymous said...

Lots of jurisdictions allow for search warrant affidavits to be PERMANENTLY sealed. People v. Hobbs, 873 P.2d 1246, 1253 (Cal. 1994) (“The Legislature and the courts have also sanctioned the procedure of sealing portions of a search warrant affidavit that relate facts or information which, if disclosed in the public portion of the affidavit, will reveal or tend to reveal a confidential informant's identity.”); United States v. Vives, Slip Copy, 2006 WL 3792096 (S.D.Fla. December 21, 2006) (“When the government requests a sealing order for an affidavit in support of a search warrant, it must show that the need for secrecy justifies the sealing of the affidavit and that “sealing is essential to preserve higher values and is narrowly tailored to serve the interest.”).

Allowing a temporary sealing of an affidavit when a need is demonstrated to a trial judge is a modest and commonsense option.

Gritsforbreakfast said...

Anonymous, from the founding of the Texan Republic until this bill Texas was never one of those jurisdictions. And what California does matters little to me so far as what's best for this state. If Terry Keel were still in the Legislature I guarantee he'd have killed this bad idea as he did in years past.

From anonymity, it's easy to say secrecy makes "commonsense." If you're someone with a vested interest, though, it mainly makes commonsense because it keeps the media out of your business for two months. The bad guys know what's going on - it's just the public that's excluded from the proceedings. That's just not right: It's bad public policy and this is a bad law.

Anonymous said...

If the MSM doesn't like it, then I'm all for it!

Gritsforbreakfast said...

"They who have put out the people's eyes reproach them for their blindness" - John Milton, Paradise Lost

Anonymous said...

Well, from the founding of the Republic . . . criminals have had the right to wack informants, hide evidence, and obstruct justice. This just gives the police 30, or maybe 60 days to finish an investigation, when they ask for it. Then you'll be able to sell advertising on your blog or in your newspaper, just like before.

Gritsforbreakfast said...

This is BS: "criminals have had the right to wack informants, hide evidence, and obstruct justice." Uh - no they haven't. All those things are illegal.

Throughout the debates over this bill, no one has identified a single incident where existing law caused those types of outcomes. Plenty of safeguards are in place and it's just never happened, or at least no one can identify an instance. This is hyperbole, not fact-based argumentation.

As I pointed out earlier, your steadfast anonymity makes me think you're someone who benefits professionally from concealing these records, particularly when they would identify problems with a case. But those are CYA reasons, not legitimate public policy concerns.

Finaly, how much advertising do you see on this blog? I might begin taking more, but if you think that's what's at issue you're a simpleton. To the extent the media is fulfilling a constitutionally important role, the information they generate must be timely. The ability to put off disclosure for up to 60 days (again, only concealing it from the public, not the crook) does nothing but give temporary PR cover. All legitimate needs for secrecy are already addressed under current law.

Anonymous said...

You need to read something other than your own posts. I wrote the wack post, but not the others. If you lose your temper over things like this, maybe you should find another line of work.

If the whole world knows that Bubba was the informant, then the defendant can wack him with impugnity. If only the defendant knows, then Bubba may live for 30 or 60 days, and that could make all the difference. If he chooses to wack Bubba anyway, then let the cops make the case on that crime.

If KVET puts out that the suspect has a blue buick regal, then he knows to ditch the car.

This isn't rocket science.

Even if you don't derive income from your site, the Mornings News and tabloids like it sure do from theirs, and they have not hesitated to put cases and lives on the line.

Gritsforbreakfast said...

First, if you're not the author of the earlier anonymous post, I was wrong to assume you knew the case law and were spewing intentional red herrings, so I apologize for that.

That said, you come back with hypotheticals and tell me yoru point is obvious, but I'm telling you I've accessed these records in various profesisonal capacities for years (many of them like oppo research or paper trail work for litigators having nothing to do with media or advertising) and I've never heard of any case like you describe, nor could bill proponents come up with any during the legislative process, however obvious you think it seems. If the outcomes you describe are real, let's talk about real Texas cases and not debate hypotheticals.

Sorry to let reality get in the way of your assumptions, but if this has only a theoretical, not a real-world impact after more than a hundred years of testing in the public sphere, I see no reason to change the law and still think it deserves a Governor's veto.

Anonymous said...

First, why don't we see how this works out. I think you will be surprised at how seldom this is used. If it's abused I'm sure there will be plenty of support for corrective action next session. Second, your this-isn't-the-way-we- have-done-it-in-the-past argument is hardly persuasive. Are you in favor of the death penalty because we've had it for a long time?

Anonymous 12:05

Anonymous said...

I was going to write about the California approach to sealed affidavits, but anonymous at 12:05 beat me to it. In contrast to that author, though, I don't think that temporary sealing is a good option: I think it's the beginning of a slippery slope toward reduced Fourth Amendment rights. Moreover, (particularly in the context of the war on drugs) it allows the government's asserted interest in protecting a snitch to trump to trump the defendant's right to challenge the existence of probable cause.

When anonymous at 6:26 writes "I think you will be surprised at how seldom this is used," he or she just isn't facing reality. In California, sealing only gets more and more common as the years roll on.

Gritsforbreakfast said...

Anon 12:05, this is a red herring: "Are you in favor of the death penalty because we've had it for a long time?" Those kind of tiresome arguments make me disinclined to debate you - it's disingenuous becauase I argued not just that it was law for a long time, but that there's no demonstrable harm from the current law. You're ignoring that part because, like all the bill's proponents, you can't name a single instance in Texas history when the current law has ever caused a problem. So there's no reason to try something new. This is a solution looking for a problem that all evidence says does not exist.

Anonymous said...

Are you crazy! In a country where being against military waste is tantamount to being "soft on defense" and respect for habeas corpus means that you are a founding member of the Osama Bin Laden fan club, any restrictions on prosecution will be considered "soft on crime". Do you love drug dealers and gangsters? It doesn't matter. If you want to slow down prosecutors then you will be smeared with this brush.