Am I missing something?

Back at the beginning of March, the Harris County District Attorney's Office introduced a new policy regarding the release of offense reports to defense attorneys.

Today, as I waited in line to pick up a redacted copy of an offense report for a domestic assault case, I chatted with a colleague about the new policy and we both had a question to which no one has yet been able to provide a satisfactory, or for that matter, logical answer.

What is the purpose in redacting information from the offense reports?

In order to obtain a redacted offense report we are required to sign a confidentiality agreement in which we agree not to give a copy of the report to our client. However, we are permitted to review the unredacted copy of the offense report in the state's file and take notes. As these notes are attorney work product we can share them freely with our clients -- including the names and contact information for all witnesses.

Since we sign a confidentiality agreement, why redact any information from the reports? If the reports are going to be redacted, why require the attorney to sign a confidentiality agreement? Since we can take notes from the unredacted offense report and discuss that information with our clients, why bother with either requiring a confidentiality agreement or redacting the reports?

If anyone can figure out the logic in this policy, please leave your comments below.

New policy on offense reports in Harris County

This morning, at a few minutes past nine 0'clock, something happened to me in Harris County that had not happened before -- I was given my very own copy of an offense report.

In exchange for not having to take notes verbatim from the report, I had to sign a confidentiality agreement, the wording of which follows:

CONFIDENTIALITY AGREEMENT

TO THE HONORABLE JUDGE OF SAID COURT:

The State of Texas files this Confidentiality Agreement in the above-styled case wherein counsel of record for the defendant agrees as follows:

I, _____, hereby agree, individually and on behalf of my client, to the following with respect to the State's disclosure of information, documents, or items in the above-referenced cause:

• That I and any experts or qualified staff or consultants acting on my behalf or my client's behalf under my direction/supervision, agree to use any documents and/or items from the State's file solely for the purpose of defending against the charges in the above-captioned case and for no other purpose.
• Any items provided to me, including copies of police reports, will not be disseminated to the media, to the defendant, to the defendant's family or friends, or to any other person, except defense experts, qualified legal staff, or legal consultants acting on my behalf or my client's behalf and under my direction/supervision.
• The access I am provided to the State's file and/or items therein does not constitute a voluntary disclosure ro waiver by the State under the Texas Public Information Act.
• A defense attorney who acts in violation of this discovery policy may be denied copies of police offense reports and/or acess to the State's files.

Now, while I think the prohibition against the citizen accused viewing the offense report is onerous, the new policy is a step in the right direction. To Ms. Lykos' credit, although it took two months to implement, by providing counsel with copies of offense reports, she fulfilled one of her campaign promises.

Waiting on an offense report...

I walked into the courtroom for County Court at Law No. 1 on the 8th floor of the Harris County Criminal (In)justice Center this morning on a first appearance on a "total refusal" DWI this morning all atwitter at the thought of being handed a copy of the offense report upon request. After all, that's what Harris County District Attorney Pat Lykos promised during her campaign.

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.