Open File Policy in Williamson County DA’s Office?

To quote an article written about and quoting current District Attorney John Bradley,

In short, you can be sure that in Williamson County, before any contested trial begins today, the defense lawyer will have already received access to all of the information collected in the case.

To me, this sounds like the policy is to allow for all felony files to be open to defense attorneys like myself.  I have been given access to some of my clients cases but by no means all of them… as suggested by this statement above. And while I am appreciative of the access I have had in the few opened cases, "all" does not seem to mean "all" as used by Mr. Bradley.

More information on this is available in an article in the Round Rock Leader, Modern discovery: An open file in Williamson County.

I do not want this post to be taken as a challenge to Mr. Bradley but rather as an inquiry into how we defense attorneys get access to our client’s files as he suggests he allows in the above article.

I understand that the County Attorney’s office, led by Jana Duty, allows for us to fax or email a discovery request form to their office and someone sends an electronic copy of police reports, affidavits, etc back to us in a timely fashion.  This seems simple enough and incurs a minimal expense for the county, as there is not even a cost for paper or ink.  

One way for the DA’s office to use a similar system is to require the lowest ranking prosecutor in each court to be responsible for responding to the discovery requests, or, if it is truly a concern of spending and expense for the County, then when the files are opened, we could be allowed to scan or otherwise copy the documents into our laptops when we visit their office.

I appreciate the progress that Mr. Bradley states has been made, but to date, only a very few of my clients files have been opened to me…

After all, if the State is confident that a person is guilty, why hide anything… open the file, share the information, and make it so available to the defense attorney that there is no doubt as to what was available.  If the evidence is there, the case will be resolved, and if there are legitimate questions or doubts about a case then perhaps the effort to get a conviction by the DA’s office should be set aside and the case resolved in a fair way that seeks justice rather than notches in the proverbial "conviction belt’….

 

Occupy Wall Street / Occupy Austin / Related Arrests

 Most of us, if we do not have our heads stuck completely in the sand, have heard about the Occupy Wall Street movement that has swept across the world and is currently here in Austin.  I am a criminal defense attorney who is willing to contribute to the cause by making my service available on a pro bono basis for cases involving civil disobedience in Austin or Williamson County.  If anyone is arrested for an offense that constitutes the exercise of your free speech, please contact me to discuss further at 512.482.0900.

I admire each of you sleeping outside, holding the signs and trying to implement change for all of us.  We are the 99% ….

What’s Next for the Morton Players?: John Bradley, Ken Anderson, and Davis

PROSECUTOR’S DUTY:

"It shall be the primary duty of [ the prosecutor ] not to convict, but to see that Justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused."
                                                                                             - Texas Code of Criminal Procedure, Art. 2.01

So many people have tracked the story of Michael Morton and video after video have been posted on the Internet, but the question that comes to my mind is what will happen to the players in the Michael Morton case… those who acted as prosecutors then, and the current Williamson County District Attorney who fought so hard to prevent the Innocence Project from reopening the case?

One of the first videos to break this story: 

The good news is that Michael Morton is now free.  He is out of prison, but that does not in any way repair the relationship with his son, the time lost with family, the career he could have developed.  In fact, what can be done to give him back his life? I cannot imagine having lost that much of my life, especially for a crime I did not commit.  Sadly, the only way our society has to rebuild someone is to pay them money, but even that seems too little, too late.

 

All in all, the best outcome will be for any of those who had a hand in this case to resign any current positions they currently hold.  They should give up their positions immediately.  And while I agree that John Bradley did not have a direct hand in the original prosecution of the case, no justification exists for not opening the file and sharing any information the Innocence Project or any other attorney sought in this investigation.  

Afterall, if the prosecution has a good case, why do they often hide the file behind closed, locked doors and avail themselves of revealing as little information as possible.  As a criminal defense attorney, that makes me more suspicious of a case when I am not allowed to fully investigate and review what the State has against a client.  As a prosecutor in 2002-2003, I was happy to open my file and allow defense attorney’s to copy anything but direct victim information and of course, criminal histories.  And, as a Williamson County Deputy Sheriff in 2005-2008, I wanted to know the full story and never sought to make an arrest to just get a case closed… the impact is far too damaging.  

All in all, Mr. Bradley and the other players should well remember the duty cited above and resign their current positions.  Afterall, it is better for a guilty person to avoid conviction and go free than for a single innocent person to ever spend 1 minute in jail…

If John Bradley, Ken Anderson, and anyone else currently in an elected position are unwilling to step down and resign their positions, who will file to run against them?  Afterall, both hold elected positions and the citizens of Williamson County surely do not want this sort of reputation hanging over their heads.

 

Cheating on an Exam (SAT) = Crime = Jail?! … No!

This has been throughout the news with a quick google search of "cheating SAT student(s) Great Neck" which is the location of where it happened.  In short, a handful of students paid another man to take their SAT college entrance exam for them and now the prosecuting attorney has filed criminal charges against the students who hired the test-taker as well as multiple counts against the test-taker himself.  

The most interesting part of this uproar to me is the type of comments that have been left to the article written by Scott Greenfield, "Jail not right for SAT cheating." These comments at the time of my post were by 3 anonymous people and one who identified himself.  And, I must say that I disagree with all of the comments, as they tend to miss the point and actually believe that labeling someone as a criminal, even with a misdemeanor, will somehow teach them all "not to cheat" and further "serve as an example for would-be test takers".

"Wrong answer! Putting these little pukes in jail for a year will make the next morally challenged punk think twice about doing the right thing. And, we may even raise a few kids with some character.  ~~Americantaxpayer

The above comment, posted by Americantaxpayer is what riled me enough to write this article.  This faceless, nameless, coward writes some incredibly inflammatory remarks with no data to back it up. Further, it is failed logic when one considers the entire criminal justice system as used in this country. 

Every day, I am in a courtroom dealing with cases ranging from misdemeanors to much more serious felonies.  And, I have yet to see data that supports the contention that making an example of someone will serve as notice to others not to engage in allegedly criminal behavior.  Take for instance, DWI prosecutions… everyone has seen the headline where a repeat DWI offender receives decades in prison for subsequent offenses, yet we still have hundreds of people making the choice to get behind the wheel when they are allegedly intoxicated.

So, Americantaxpayer, you are wrong! You fail to understand the system and actually believe that putting person X in jail is tantamount to preventing person Y from committing an offense.  This is an issue that reflects on parenting, ethics, etc. but it is a complete waste of the already strained state government budgets to incarcerate someone for cheating on a test or more accurately from hiring someone to cheat on a test… 

To close, I’m not going to get into the merits of the prosecution of any of these or similarly situated persons who have ever cheated on an exam, but jail, probation, and criminal prosecution is not the answer.  The administrators of the SAT exam and others like them should create better security measures. After all, a man was able to take an exam for a woman? 

 

Jail or Church, Is This a Choice? Court Dismisses Cases if Church Attended for a Year…

 Sentencing Law and Policy, a well-established criminal law blog, reported on a story in Bay Minette, Alabama, deep in the heart of the Bible Belt, where courts in one County are giving criminal defendants who agree to attend church for one year a dismissal of their criminal cases, or the person can choose to pay heavy fines and go to jail… wow, is that really a choice?

Non-violent offenders in Bay Minette now have a choice some would call simple: do time behind bars or work off the sentence in church. Operation Restore Our Community or "ROC"…begins next week. The city judge will either let misdemeanor offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.

If offenders elect church, they’re allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender’s case will be dismissed.

Bay Minette Police Chief Mike Rowland says it costs his department about 75 bucks per inmate per day. Rowland says the ROC program will be cost-effective and could change the lives of many people heading down the wrong path. So far, 56 churches in North Baldwin County are participating in ROC.

Rowland says the program is legal and doesn’t violate separation of church and state issues because it allows the offender to choose church or jail…and the church of their choice.

A video of the story from a local reporting service details this:

 

Comments from both sides show that this is a hotly contested topic.  As a criminal defense attorney, I am floored and appalled by this option as a way of dealing with the case.  Even if the Court will accept "church" from any denomination or faith tradition, this is an alarming slippery slope that could lead to the government intervening with a person’s choice to attend church or not.  In many ways, those who founded America came here seeking religious freedom and it is ironic to me how much it seems we are sliding backwards, forgetting about those reasons and freedoms that people came here.  And more ironically, many of those Puritans that came here were more conservative than the areas they were leaving and they wanted the freedom to be strict and shall I say, tyrannical with their beliefs.  Perhaps this is only a way of trying to go back to those roots… or more of the alarming attitudes and beliefs of the "religious right" creeping more and more into our Court systems.

Simply put, the Establishment Clause of the Constitution prohibits the commingling of government and religion:

 "Congress shall make no law respecting an establishment of religion". Together with the Free Exercise Clause ("… or prohibiting the free exercise thereof"), these two clauses make up what are called the "religion clauses" of the First Amendment.

Further, the Supreme Court of the United States in Lemon detailed the requirements for legislation concerning religion, which consists of three prongs:

1) The government’s action must have a secular legislative purpose;
2) The government’s action must not have the primary effect of either advancing or inhibiting religion;
3) The government’s action must not result in an "excessive government entanglement" with religion.

If any of these 3 prongs are violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.  When applied to what is happening in Bay Minette, Alabama, clearly the 2ND and 3rd prongs are violated, and arguably the first.  But for simplicity sake, let’s give the Court #1 above by saying they want to save money for the county, but clearly the other two prongs are violated, as a preacher/pastor must meet with the criminal defendant and the police department on a weekly basis… and conscripting church attendance further show there is an attempt to advance the positions of churches in a community.

If anyone knows what churches are participating and whether any non-Christian ones are being accepted, please post that information as a comment to this article.  I’m very excited to know what would be said if an Islamic, Baha’i, Buddhist, Hindu, or any other person of faith accepted this offer for a dismissal….