Thursday, March 12, 2009

Just a Couple of Friendly Suggestions

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.

12 comments:

jigmeister said...

Just curious Murray. Is there now a reset styled, "Defense to read copy of OR"?

SFLawyer said...

Man you guys have it rough. In San Francisco we go to the other side before morning calendar say "what do you have for me today?" and they give us the reports. Done.

Anonymous said...

Murray,

This is another idea that is great on its face, but has logistical problems that will require patience.

It should be noted that ADA's got another memo today on the redacting with some more guidelines.

A tip for the Defense bar - be patient. I have talked to ADA's who have spend 3-4 hours a day redacting and copying. Also, don't expect to get major reports on the first setting; it's not going to happen in most courts - they need time to get the full reports and then redact, and then copy; and then get them to the DC.

Anonymous said...

Since it isn't the courts that are releasing the offense reports, why is there not a consistent policy? Its the district attorney's policy to release the reports, so why isn't there a consistent policy instead of letting DAs in each court make up their own? I have been told 4 different procedures in 4 different courts now and its ridiculous that all DAs aren't required to follow the exact same policy. What is so damn difficult about putting out a memo and saying this is how you will do it in every court every time so that the system is efficient and people know what to expect.

Rage Judicata said...

Lykos needs to get with the administrative judge. That was the largest oversight in this whole thing. It seems that everyone at every level is making a bigger deal out of this than they should, but implementation is as important as the policy itself.

As for why the judges are doing it differently even though the DA is responsible for the policy, well, I imagine it has to do with different judges liking it more or less than others, and wanting to make it harder or easier. Until there is a central policy the inconsistency will remain.

A Harris County Lawyer said...

Rage,
When we talk about the rules being different in the different courts, we are referring to the prosecutors having different rules in their different courts. Its not the judges. The judges haven't really haven't had a need to be involved in the turning over of the ORs.

Rage Judicata said...

AHCL:

Being as how it's a discovery issue, that's also something that could be cured by the admin. judge.

And to the extent that the ADA's are doing it differently, that's even less excusable from an execution standpoint.

A Harris County Lawyer said...

I think that may be a little overly harsh, Rage, because the offense reports aren't discoverable under the Rules of Evidence. They are work product. A judge can't order their release under the Rules.
Lykos (to her credit) released the offense reports. Although it is odd that there wasn't a uniform policy in place before they released it, calling it in inexcusable is kind of looking a gift horse in the mouth.
I am surprised that Trial Bureau Chief Maria McAnulty didn't have her ducks in a row when the policy came down, though.

Anonymous said...

Wow, sure sounds like making copies is speeding everything up.

Rage Judicata said...

Wait. I'm saying Lykos is a screw up and you're defending her? Well if that don't beat all.

Anyway, poor implementation of a good idea speaks to a person's leadership and organization skills. Especially when it wasn't her idea in the first place. That tells you she can't come up with an original idea, and can't implement any idea.

Tells me that she should keep her mitts off of a regional crime lab for dang sure.

A Harris County Lawyer said...

Well, I'm not defending Lykos by any means, but (believe it or not) I do try to give her credit if she implements something good. I agree with your assessment that it is poor leadership when a good idea has bad execution, but I'm also trying to acknowledge that it is a big step in the right direction. I think the kinks will be ironed out in the near future, so (at least on this occasion), I'm going to keep my griping to a minimum.

Attorney said...

In Georgia, the reports are handled as part of discovery from a practical standpoint. On the coversheet where the State lists the contents of their discovery packet, however, the report is refered to as a "Complimentary copy of Officer's incident report."

State gets to mark their territory, and we get the information we need. It's always worked so far for me.