With long-awaited and much heralded arrival of Offense Reports for the Defense Bar last week has come a lack of consistency and some confusion on the proper way to administrate the actual release of those offense reports:
-some courts just turn over the offense report upon a verbal request from the defense attorney.
-some courts have a pre-printed form entitled "Defense Request for Copy of Offense Report".
-some courts are requesting a formal Discovery Motion be filed before turning over the offense reports.
I don't think that a Discovery Motion is appropriate, because offense reports are work product, and not technically discoverable. From my perspective, I think the middle option is probably the most reasonable course of action in turning over the offense reports. A short form with the Defendant's name and Cause number on it, followed by standard language that assures the D.A.'s office that an attorney is in fact the Attorney of Record, and is requesting the OR.
Along with receiving the Offense Reports, the Attorney of Record receives a standard, 2 page form letter which states the rules and regulations regarding the reports, as well a confidentiality agreement. All of which is very reasonable, in my opinion.
So, here's Suggestion # 1 - on the Confidentiality Agreement that the Defense Bar has to sign, the D.A.'s Office needs to add a bullet point that reads: "I have previously read the Harris County District Attorney's Office's Rules Governing the Release of Offense Reports and I agree to abide these rules."
If you add that bulletpoint to the agreements, your prosecutors aren't going to have to keep regenerating the two page letter on every freaking file. As my 8th grade algebra teacher used to say, "Save a tree. Make a dog happy."
The bigger problem with the new OR policy is the actual delivery of the offense reports to the Defense Bar. Obviously at the time the new policy was put into place, there were already thousands and thousands of cases pending in the courts. Obviously, the prosecutors didn't go immediately xerox and redact all of those cases already pending. The copying is going to take a little bit of time, and it isn't fair to think that prosecutors are going to be able to be doing that copying in court while they are trying to run the docket.
Obviously, the reports will have to be copied in the afternoons when the prosecutors are back from court. The copies will then need to be redacted as well. The prosecutors then have to coordinate with the defense attorneys over when the offense reports are ready to be picked up. Currently, I have a couple of requests in for offense reports on different cases from different courts. I'm e-mailing and calling the individual prosecutors, and quite frankly, I'm beginning to feel like a pest.
So, here's Suggestion # 2 on the delivery of the offense reports:
On cases that can't be immediately copied and redacted in court, have the Defense Attorney fill out the Request for the Offense Report and go ahead and sign the Confidentiality Agreement and let the prosecutors go back to running their docket. In the afternoons, the copies can be made and then left up at the front desk on the 4th Floor of the D.A.'s Office.
The office should invest in those little file dividers that have all the letters of the alphabet on them, and then just file the copies in alphabetical order according to the defense attorney's last name. That way, a defense attorney doesn't have to keep pestering the prosecutor about when the copies are going to be done. They can just swing by the 4th Floor and ask the receptionist if they can pick up any offense reports left for them.
The plus side to this is that the defense attorneys don't have to go running around from court to court to try to collect all of their offense reports, and prosecutors don't have to be lugging around the reports trying to coordinate with the defense attorneys.
It's just a friendly suggestion, but I think it would simplify a lot of things.