During a candidate forum at South Texas College of Law on February 19, 2008, the following exchange took place:
Mr. Blow-dried Anchorman: "Would you implement a policy mandating that defense attorneys be allowed to photocopy all prosecution documents to which they have access, Judge Lykos?"Judge Lykos: "Yes, in fact the office should copy it for them and that way if there is any information in there that may endanger a witness, it can be redacted. But, yes, it should be supplied to them. That's justice."
Now I would first like to point out how very impressed I was with how Mr. Blow-dried Anchorman was able to word the question without letting it end with a preposition. I'm also impressed he was able to say words like implement.
I would also point out that there was no mention in Ms. Lykos' response to how long it would take to implement her policy. From her words it would appear that she felt justice demanded that criminal defense attorneys be given copies of offense reports - and, to borrow a phrase - justice delayed is justice denied.
So, did I get my copy of the offense report(s) filed against my client?
Of course not. I asked the assistant prosecutor for my copy and she told me they didn't give out copies of offense reports. I told her that her boss announced during her campaign that she would give copies of offense reports to attorneys. She told me that the office policy was that no copies of offense reports would be provided. I asked her why that was the policy. She told me that she didn't know and that it wasn't her place to question office policy.
Well, to paraphrase Miami criminal defense attorney Brian Tannebaum, if a prosecutor can't make decisions on her own, then she's just a clerk.
Now I was curious to find out what the policies were in different jurisdictions. I knew that criminal defense attorneys weren't even allowed to look at offense reports in Williamson County (Texas) until the officer testified at trial. On the other hand, both Galveston County (Texas) and Jackson County (Texas) allow criminal defense attorneys to make photocopies of offense reports.
Jeff Alford, a criminal defense attorney in Western Kentucky, told me that the prosecutors he deals with have an open file policy and that he gets everything in the file -- except their notes.
Trace Rabern, a criminal defense attorney in New Mexico, says that the state has an open-file policy, but "that only gets you what they know." She was not too comforted by that.
I would like to hear more about the policies in other jurisdictions and the reasoning (if any) behind those policies.