Monday, February 06, 2012

Dallas DA defies court order, refuses to reveal police criminal histories

The Dallas DA last week refused to comply with a court order to turn over criminal histories of police officers, the Dallas News reports this morning (behind paywall), resulting in a contempt order and a contentious appeal:
The Dallas County district attorney’s office is battling a judge over whether prosecutors should routinely research and disclose the criminal histories of police officers who testify.

Criminal Court Judge Julia Hayes has on at least two occasions in recent weeks ordered prosecutors to determine the criminal background histories of police officers testifying in her misdemeanor court so that the information can be shared with defense attorneys. The district attorney’s office has refused, saying the law forbids handing over the information.

Hayes ordered a prosecutor held in contempt for refusing to comply with her order. In response, the DA’s office on Friday petitioned the 5th District Court of Appeals in Dallas to compel Hayes to withdraw the order about the records of officers.

Hayes, a Democrat in her first term, and public defender Elizabeth Perry, who is representing a defendant charged with family violence, declined to comment.

Defense attorneys say they worry that the law allows prosecutors to hide the background of police officers.

Defense attorney J. Michael Price II said that prosecutors already run the records of civilian witnesses and jurors and that he doesn’t see a difference in including officers.

“I think truthfully, they don’t want to run them because they don’t want to be in the position of finding that dozens of officers or more may have criminal backgrounds,” Price said.
The DA's Office, though, says the feds won't allow them to perform such searches:
A September 2001 letter from the U.S. Justice Department that prosecutors attached to their petition said that producing the records — even under a court order — violates federal law because it is an invasion of privacy. The letter was written to the Texas Department of Public Safety after a court order requested similar information in another Texas county.

The letter says that there is a difference if a criminal history already exists in the prosecutor’s case file. But the courts cannot compel prosecutors to create the information.
 I must confess, when we're talking about information in possession of the state, I don't see much difference in whether the info is in a database or in the prosecutor's file. It's well-established law that the state may commit a "Brady" violation, for example, even if law-enforcement never shared the information with prosecutors. And if it's true (as I'm almost sure is the case) that prosecutors run criminal histories of other witnesses, I don't particularly understand why police witnesses should get a pass.

Also, it's interesting that the letter in question is from September 2001, since almost immediately after that the feds began scaling back privacy restrictions and allowing much more widespread sharing of data among law enforcement in the wake of the 9/11 attacks. And I'm surprised, if the DA's position is accurate, that there's not a prior appellate case on point  as opposed to some decade-old administrative memo.

Should police officers' criminal history be revealed to defense attorneys? If not, why not? And what criteria might distinguish police from other witnesses for whom prosecutors routinely run criminal histories?


Texas Maverick said...

So if it invades the privacy of LE, why doesn't it invade the privacy of the juror? double standard anyone?

Anonymous said...

It sounds like the parties are a bit confused -- which is not surprising since there is some arcane law and procedure involved.

Apparently what the defense wants is the "NCIC" criminal history of the cops. NCIC is a federally run set of databases that takes information from state and federal sources and collates it. According to Federal Regulation prosecutors are not supposed to run general NCIC checks for defense attorneys (to make a long story short, the feds don't consider criminal defense "the administration of justice"). But there is a way for the defense to obtain such records:
1. Get a subpoena signed by a judge 2. Send it to the FBI "office of special correspondence" 3. The FBI will send the record to the judge 4. the judge is supposed to ensure that the record is pertinent to the case and if so hand it over to the defense attorney.

It's a hassle for the defense but then it is designed that way. However, a state does not need federal permission to use the information *it* has provided to the NCIC. IIRC, the state can run an NCIC query requesting only records that have been provided by Texas (i.e. a record of texas convictions, etc.) without running afoul of federal regs.

Gritsforbreakfast said...

Thanks, 9:18, that makes a lot of sense. Sounds like from your description, the defense attorneys and/or the judge may have just put the cart before the horse, but that the DA is wrong that the judge can't assess the relevance of that information, they just need to go through the process you describe, or else only ask for Texas information.

The DA seems to want them to prove misconduct by officers first before getting, essentially, discovery, but the process you describe makes more sense.

Anonymous said...

I'm curious as to what criminal history would be available? The Texas Administrative Code (Chapter 217, Rule 217.1) gives the minimum standards for a peace officer license in Texas. Seems having a criminal history of any note would keep someone from having a badge.

Phelps said...

And what criteria might distinguish police from other witnesses for whom prosecutors routinely run criminal histories?

The Liar Liar defense: "Disclosing police criminal histories would be devastating to our case!"

Anonymous said...

Tom Coleman, Tulia? Ring a bell? Seems both he and the prosecutor got off pretty light after causing 6 million dollars worth of preventable misconduct, malicious prosecution and grief. Secrecy = corruption.

Phelps said...

Digging through the administrative code, it looks like the blanket disqualification for convictions applies only to the intial licensing, and it's up to the Texas Commission on Law Enforcement Standards to make rules on which convictions constitute grounds for revocation, which I haven't found yet.

It is entirely conceivable that the commission picks and chooses which offenses qualify and which don't, which could mean that officers are working with post-licensing convictions on their record.

Anonymous said...

This is exactly why the public does not trust law enforcement. There are always two sets of rules to be followed. One set for the public and one set for the cops.

"Professional Courtesy" IS a second set of rules by which they get off from being issued traffic tickets. Now you can add questioning their criminal record to the list.

Anonymous said...

I believe the defense attorney is asking for the NCIC or TCIC history. In the last trial in the court, the DAs did not provide the information, but the judge called the officers to the stand (outside the presence of the jury) to testify to their criminal history. One had a DWI pending (or conviction?); one had a theft conviction; and one had an internal affairs investigation pending. Apparantly, Dallas PD lowered their hiring standards to include officers with convictions if the convictions were over a certain period of time.

rodsmith said...

sorry if the posecution is doing NCIC reports on the defense and the JURY then to be fair and impartial it should ALSO be done on the prosecution witnesses, DA and JUDGE and it all presented to the defense.

Julia B. said...

Whats with "Best Criminal Lawyers in Toronto?" Reads more like 'Best Criminals in Lagos' I was afraid to look at the link for fear of malware attack.

Gritsforbreakfast said...

Twas just comment spam, Charley. You'd be amazed how much of it (thankfully) gets caught in the spam filter.


An Open Records request would seem to be a logical avenue to pursue, so that an conclusive state wide policy and ruling may be presented by the AG's office.

Shameless Oppression said...

Say, if the DA went to the GJ to get Judge Hayes indicted for official oppression, wouldn't Watkins be guilty of official oppression? Since trying to criminalize her court ruling impedes the exercise of her power as a judge?

Word is Watkins went to the GJ this past Friday. So there goes all hope for an independent judiciary in Dallas County. For shame, for shame, for shame.

Story supposedly airs tonight on Dallas Fox 4 News.

Anonymous said...

I heard the DMN is writing more about this, too. Don't see anything on the website now. Maybe the story will go up tonight.

Anonymous said...

wisdom of solomon said...

Grits, please answer these questions:
(1) How could a police officer have a criminal record anyway?
(2) If he has a record prior to hiring, how did he get on the force?
(3)If he got a criminal record after his hiring, then why is he still on the force? and
(4) Why would a DA, sworn to uphold the law, want to cover it up?

Phelps said...

At the danger of steppping on Grits' toes to answer WoS:

1) Because an officer could have crimes that he had been convicted of after he had become an officer that didn't warrant dismissal, or crimes that he committed more than 5 years before becoming an officer;

2) See 1;

3) Because The Thin Blue Line leads officers to cover up and ignore the crimes of other cops as much as possible, and excuse the ones that can't be covered up or ignored;

4) Because the DA knows that criminal records are endemic in the police force, and if they were forced to disclose that, they would lose the advantage they currently hold of people finding the police to be credible witnesses.

Phelps said...

Additionally, on #4, also because many, many DAs are oathbreakers, as evidenced by the innocent men they not only convict, but fight to keep in jail once their innocence has been proven conclusively.

Philip said...

The Defense wants to know if there are any qualified events in the officer's history that would allow the attorney to impeach the witness while on the stand.

The DA is saying: we shouldn't have to create something that's not technically already printed out in our file.

If any witness has a crime of moral turpitude or a felony on their record, the defense has a right to know it. By law, that's something with which you can question the witness's veracity.

The DA has this information in the form of the electronic criminal history record, TCIC for Texas, NCIC for US. State law allows a printed copy of this private information to be turned over to the defense with a court order. (Which happened in both of the cases.)

A Federal memo from 2001 suggested that any Federal info in the NCIC might not be appropriate to disclose given privacy concerns. This memo is moot for two reasons. First, as is mentioned here earlier, the Federal policies on information have changed dramatially. Second, that exact information is provided to the defense counsel regarding all witnesses that are not police officers.

The DA's office is relying on a ruling titled, 'In Re Stormer', a case filed by then District Attorney Cindy Stormer against Former District Attorney, now Honorable District Judge Janelle Haverkamp. In it, Stormer argued some 49 or so orders by the judge were improper requirements on discovery as Ms. Stormer did not want to reveal to the defense difficulties with her case. She also wanted defense counsel to sign 'open file agreements' where by the defense was required to waive most rights to time limitations, notice, and Brady restrictions in return for a chance at an open file. Essentially she was holding the files hostage and demanding defense attorneys yield a heap of rights just to get to read what she had on the case. The court ruled AGAINST Stormer on almost every count except the singular issue of creation of documents. The court ruled that the DA's office shouldn't have to create a summary of evidence or any such 'work product' to respond to the discovery request.

Stormer resigned after losing the primary in her next election. She now works as an Assistant District Attorney in Dallas County.

Cops in Dallas County have criminal records because they are often suspended temporarily or reprimanded for breaking the law. Defense Attorneys in the area keep a running list, as best they can, on officers misconduct because the District Attorney's office does it's very best to hide those credibility problems from the bright lights of the courtroom.

I'm proud to know a Judge finally stood up to the DA's office and declared hiding information that is mitigating or exculpatory isn't right!

It might also interest you to know that PD Beth Perry, the Public Defender on the current case, had an ADA Supervisor in her face hollering, "This is all your fault. I can't believe you caused all of this." and another ADA on a case this week shrilly stammered, "How dare you state in open court, in front of the jury, we didn't turn over discovery!?"

Most terribly, the Judge was served a Grand Jury Subpoena at 9:40 am to appear at 10:00 am when she was to rule on the contempt hearing at 11:00 am.

The DA's office is out of control and appalling.

Anonymous said...

Hmmm...I'm ok with releasing this information during the guilt phase and using it for impeachment purposes if the defense attorney is ok with me using his clients criminal history during the guilt phase.

Philip said...

Anon 9:58

If the defendant takes the stand as a testifying witness, it would be proper to use any conviction of moral turpitude or felony to impeach the testimony.

That's pretty basic cross examination law.

Please review Texas Rule of Evidence 4.04 specifically Section (b)for admitting evidence against a defendant during the guilt phase.

Also if you think the information about the officers is not appropriate, please review Texas Rules of Evidence 607, 608, and 609.

Again, these are very simple rules any trial attorney should understand.

Anonymous said...

9:58 said:
Hmmm...I'm ok with releasing this information during the guilt phase and using it for impeachment purposes if the defense attorney is ok with me using his clients criminal history during the guilt phase.

Here we have a prosecutor who, like those I've seen in other professions, know the rules they work under but has never bothered to think about the reasons behind them.

The reason a defendant's history is excluded from the guilt phase is because we want the jury to convict him on the crime in question, not because they think he is just a bad person in general. That is different from the testimony of a witness where the credibility of a witness is important in the jury's evaluation of the evidence.

Knowing the rules may make one a competent attorney or prosecutor...but to be more than just competent you need to understand the reasons for the rules. Of course, if all you care about is winning, the reasons behind the rules aren't important, are they?

Anonymous said...

The Court of Appeals denied the DA's mandamus today due to an epic failure to comply with TRAP 52.3(j).

Confucius say: this will either blow over or explode but he hopes for the former. However, seeing what has come out of this DA's office, he leans, sadly, towards predicting the latter.

Anonymous said...

Question to the attorneys on here...

have you ever had a client tell you he committed the crime he's accused and you argue in court he's innocent?

Anonymous said...

A good attorney will never argue his client is innocent (unless he actually is) but will always argue the State has not met their burden of proof. There is a huge difference between the two.

Don Dickson said...

For USDOJ policy on obtaining and disclosing impeachment evidence, go to:

dallasdemented said...

As determined by the court of appeals, Judge Hayes clearly abused her discretion and authority in making her ruling favoring the defense bar. It is sad that the DA was forced to seek review of the issue at all. Judge Hayes should have known better than to try to enforce her void order by a contempt of court finding.