Wednesday, February 25, 2009

Where's My Offense Report?

During the campaign for District Attorney one of the issues that probably meant the most to those of us working in the CJC (and probably the least to the general voting population) was the idea of Xerox copies of offense reports being provided to the Defense Bar on their cases.

For those of you who don't practice criminal law and are just morbidly curious as to how the criminal justice system works, let me give you a little bit of background.

Obviously whenever the police do a criminal investigation, they document their actions (some times better than others) in an offense report. Under the law and the rules of evidence, that offense report is considered to be what is known as "work product". Work product is basically privileged information because it is generated by a party to the lawsuit, namely the State of Texas (via the police agency) in a criminal case.

Theoretically, the State of Texas (AKA the District Attorney's Office) doesn't have to let a defense attorney representing his or her client even glance at an offense report prior to a trial. If a police officer is testifying in trial, the defense attorney is entitled to review the officer's offense report prior to cross-examining. But other than that, there is not an actual mandate that commands the State to show the offense report to the Defense.

But as a practical matter, the practice has always been that the Harris County District Attorney's Office has always maintained an open file policy (despite the fact that Lykos claimed she would be initiating a "new" open file policy). Defense Attorneys have always been able to go and read the offense report and take notes to their heart's content.

However, where Harris County has differed from some counties is that there was a strict policy that the Defense Bar was not entitled to a Xerox copy of the offense report, and the notes taken on the file could not be jotted down "word for word" (like who in the hell has the time or energy to do that?!). Some counties hand out the offense reports to defense attorneys, which has (of course) brought up the question as to why Harris County does not do the same.

It's a very legitimate question. The copying of offense reports expedites the job that needs to be done by defense attorneys. Rather than having to make the trip to the D.A.'s Office, a copy lets the defense attorney save countless hours of taking handwritten notes on a file. It can eliminate inaccurate note taking. It can let a lawyer be lawyer rather than a stenographer.

In principle, there is absolutely no reason whatsoever not to allow the Defense Bar to have copies of offense reports. It simplifies the job for both the defense and the prosecution. When I was a prosecutor, I was never opposed to the idea of giving copies of offense reports to the defense bar -- I just wasn't allowed to. And, I never knew of another prosecutor who was opposed to it, either.

So, if it's such a fantastic idea, why hasn't it been happening all along? And why hasn't it happened in compliance with Lykos' campaign promise that she would allow the copies immediately?

Well, it's bureaucracy and logistics, of course. I mean, we are dealing with government after all, now aren't we?

NOTE: PLEASE APPRECIATE THE IRONY OF THE STATEMENT I'M ABOUT TO MAKE.

Pat Lykos is right in taking a cautioned and well-thought out approach before handing out copies of offense reports to the Defense Bar.

Offense reports contain detailed information about the parties involved in criminal cases. They contain Social Security numbers, Driver's License numbers, dates of birth, addresses, and phone numbers of victims. Sometimes they contain medical history. They have all kinds of private information. There is a very strong argument to be made that this type of information shouldn't be released in copied form from the D.A.'s office.

In any attorney-client relationship, the client is entitled to demand a copy of his file (kept by his attorney). If a Defendant is engaging in identity theft, it probably isn't in the best interest of the Public to be handing out the Social Security numbers of victims to said Defendant. If a Defendant is a member of the Texas Syndicate, a name and address list of all the witnesses may be contrary to their best interest.

You get the picture.

So what do you if you are the elected D.A.? You want to be fair and helpful to the Defense Bar, but you want to protect the privacy of the victims and witnesses. There is a need for some serious redaction of the information in the offense reports before handing them over to the Defense Bar.

The logistics of the copying problem are now twofold:

1. Who is going to pay for the copies?; and (more importantly)
2. Who is going to do the redacting?

My modest proposal here is that it is time for the D.A.'s Office to start hiring some paralegals. Putting the burden of redaction on the actual prosecutors is going to have them spending more time at the Xerox machine than they are working on their cases. They didn't go to law school for that, and it isn't what they should really be spending their time doing. They need to be working on their cases, not copying them.

I'm just throwing this out here, but this is my far-fetched idea of what the D.A.'s Office should be doing regarding the copying of the files:

1. Print out two copies of every offense report.
2. Invest in a stamp that says something to the effect of "Defense Copy" in a color other than black and put it on every page of the copies. The stamp should also contain a warning that the pages are not to be Xerox copied.
3. Draw up a non-disclosure agreement that the Defense Attorney must sign that makes them swear not to divulge an enumerated list of items (e.g. Social Security numbers, Driver's License numbers, etc.) to their clients.
4. Part of the agreement should be that no Xerox copy of the offense report shall be copied or disseminated to anyone other than counsel or investigators or other agents for counsel.
5. Make part of the agreement be that the offense report is returned to the District Attorney's Office upon disposition of the case. That way, if the client demands a copy of his file from his attorney, the offense report isn't part of it.

I'm sure there are plenty of flaws in my plan, and I know you guys will be more than happy to point them out to me.

The bottom line is that I think Lykos over-reached when she said she would turn over the offense reports immediately upon taking office. She made a campaign promise that she couldn't realistically live up to in the way she described.

But she's right to think it out before handing over the reports.

I have no doubt that we'll get there eventually.

17 comments:

Anonymous said...

Murray,

Something you forgot to point out - offense reports are not the property of the DA's office - they are the property of the agency that created them. I have no problem giving copies to the DC, provided they don't continually hound me for supplements and realize that it will take some time to get everything re-dacted and then copied. I will make a prediction on what will happen - a DC will get a copy of an OR, and then it will wind up on the front page of the Chronicle, and the policy will be nullified and one bad apple just screwed it for all defense attorney's. I think the better practice would be to not hand out OR's until the case is set for trial.

Anonymous said...

Offense reports aren't redacted now before we look at them. Personally, I have never copied down a social security number because it isn't relevant to anything and I don't care to be in possession of someone else's number. Also, you will be amazed at the number of clients who demand that you give them information on witnesses and complainants. I never give that information and I have been fired for refusing to do so. I never put that information in a file, either. In order to get around it, I simply write names and dates of birth in my file. Then I go to some online database and get the remainder of the info, which I then store on my computer. It never goes in a file. Clients can be sneaky and if you leave a file laying around and have to leave the room for some reason, its a given they look in it. The last thing any of us need is for some defendant to go after someone because of info he got from his attorney.

Anonymous said...

1:57:

Your computer file is still part of your file.

I don't see what all of the hub-ub is about. Civil attorneys redact things from discovery on a regular basis. I have no idea why prosecutors can't do the same thing. You don't leave these things up to paralegals, it's a lawyer's job.

Anonymous said...

In county to the south, there's a xerox machine in the discovery room that the defense bar pays for. Those who don't xerox bring a scanner. They also have an open file policy. There's never been a ssn problem because, despite everything, the defense bar are still officers of the court.

No DA has time to redact (unlike civil attorneys who get to bill for everything.) Nor should the DA's Office have to pay for the defense copies.

Anonymous said...

Your computer file is still part of your file.


1. Prove it! Things can get lost and deleted. Happens all the time.

2. Worst case scenario, I will take my chances about witholding info from some dangerous asshole that wants to know info that he has no need to know rather than turn it over and have someone killed or injured. I was a human being with a conscience for a long time before I became a lawyer.

3. Civil lawyers do have their paraglegals redact info; lawyers don't do menial work like that in a civil law firm.

Anonymous said...

About 17 years ago a certain letter soliciting "Barrister", actually began to steal misdemeanor files because she was too busy pleadin, to be doin any readin. Once the client (if ever came up with the full fee, after the "teaser fee" was expended, the file, aged and was set for trial and yep - file closed. Good suggestions from commentors as well as Murray. I suggest a combination:

1) Lawyers have told me that if they didn't take notes from the file in Court then even if they had a copy of the O.R. they might take it for granted and not go over it till right before trial anyway;

2) Yes crutial suppliments are made right up to the date of trial;

3) Yes most cases plead out before trial;

4) Yes most cases are closed at trial settings;

Sooooo:

5) No copies until the case is set for trial with a discovery order stipulating suppliments will be provided to defense as soon as the prosecutor is made aware of it;

6) The trial prosecutor redacts the information;

7) The O.R. is part of the Defense attorney's file forever;

8) The Trial Prosecutor should always have the discretion to explain to a supervisor why he or she doesn't think a copy should be provided for safety reasons; I mean as one of the commentors intimated: If even they are affraid of a client seeing their file then how should that make the prosecutor feel;

9) Defense attorney pays a cost rate for the copy to be tendered like the check fee amounts are now handled;

10) Standard agreement is drawn up with stipulations as to who gets what, when, costs, and the understanding that any intentional violation of this agreement could always result in a Williamson County prosedure;

Gritsforbreakfast said...

Other counties like Tarrant give up offense reports without too many headaches. If they can do it, Harris can too.

After all, if you win the case, the document becomes a public record under the Public Information Act, anyway.

Anonymous said...

Your computer file is still part of your file.


1. Prove it! Things can get lost and deleted. Happens all the time.


I hope you give better advice to your kiddie porn clients.

Anonymous said...

If ADA's are too busy to read the OR, then that should trouble us all greatly. I can read a document and redact at the same time. If the ADA's are not reading the reports, then, probably, there are people being prosecuted who should not be, and guilty people who could walk because the ADA didn't ID the landmines before trial. Neither possibility promotes confidence in the HCDA.

A Harris County Lawyer said...

Anon 11:11 a.m.,
Who in the world said that D.A.'s were too busy to read the file? By the time a case has gone to trial, ADAs have read and re-read the file several times.
Reading it for strictly redaction purposes is what we're talking about here.

Grits,
That's an interesting point. Would you mind clarifying that out a bit?

Anonymous said...

Murray,

There is software that can automatically redact personal information.

Why don't they simply hire a programmer who can create a simple program, give the defense lawyers the details of the offense, and automatically redact SSN's, and other very personal data that may not be necessary?

But never mind, I forgot this is Harris County.

Anonymous said...

Not a lawyer, at all; however, why does anyone need a ssn for an OR. I guess a tax case or social security fraud case would be an exception.

Anonymous said...

Here is a question worth pondering: do you think the taxpayers want prosecutors spending their time providing redacting services for defense lawyers or prosecuting the criminal?

And for you Bennett-lovers out there, no one benefits from over worked prosecutors. I am a prosecutor who has caught several things in offense reports that benefit a defendant that the defense lawyer never bothered to notice. One of those resulted in a dismissal.

My point is that time is a valuable and limited resource, and no one benefits from adding tasks to already overcrowded plates.

Anonymous said...

Grits,
The OR never gets entered into evidence...therfore, it does not become a public record. Even if we do win a case.

Anonymous said...

Anon 9:27, perhaps its never occurred to you, but defense attorneys' time is valuable too. Prosecutors are handed a file which already has a great deal of information in it, all investigated and written down by someone else. Defense attorneys start with a person with a serious problem and a blank legal pad. Anything that gets done is done by the attorney, not the police or DA investigators or whomever else gets the names and addresses of your witnesses and a basic outline of the alleged facts for you. Most of us don't just write up a list of subpoenas and give it to an investigator or secretary and tell them to take care of it. Its always been time consuming and annoying to spend literally hours of time taking notes on offense reports, especially when you are handed a copy in other jurisdictions. But then, in other jurisdictions in Texas, defense attorneys are treated with some respect instead of like a necessary evil that are to be screwed over at every possible opportunity. You probably won't be a prosecutor for your entire career, so you best hope that when you leave the office that we are getting offense reports. Otherwise, you will be getting quite an education in adding tasks to your already overcrowded plate.

Anonymous said...

"Where's My Offense Report?" Right there. See today's chron.com.

Gritsforbreakfast said...

Just noticed the response at 3/1 12:09.

The open records act has nothing to do with what's entered into evidence. Totally separate law. After the case is over, if the state wins, ALL the documents in possession of the police about the case are public under Govt. Code 552.108 with very limited exceptions. I've seen plenty of offense reports that way.