Where's My Offense Report?

During the campaign for District Attorney one of the issues that probably meant the most to those of us working in the CJC (and probably the least to the general voting population) was the idea of Xerox copies of offense reports being provided to the Defense Bar on their cases.

For those of you who don't practice criminal law and are just morbidly curious as to how the criminal justice system works, let me give you a little bit of background.

Obviously whenever the police do a criminal investigation, they document their actions (some times better than others) in an offense report. Under the law and the rules of evidence, that offense report is considered to be what is known as "work product". Work product is basically privileged information because it is generated by a party to the lawsuit, namely the State of Texas (via the police agency) in a criminal case.

Theoretically, the State of Texas (AKA the District Attorney's Office) doesn't have to let a defense attorney representing his or her client even glance at an offense report prior to a trial. If a police officer is testifying in trial, the defense attorney is entitled to review the officer's offense report prior to cross-examining. But other than that, there is not an actual mandate that commands the State to show the offense report to the Defense.

But as a practical matter, the practice has always been that the Harris County District Attorney's Office has always maintained an open file policy (despite the fact that Lykos claimed she would be initiating a "new" open file policy). Defense Attorneys have always been able to go and read the offense report and take notes to their heart's content.

However, where Harris County has differed from some counties is that there was a strict policy that the Defense Bar was not entitled to a Xerox copy of the offense report, and the notes taken on the file could not be jotted down "word for word" (like who in the hell has the time or energy to do that?!). Some counties hand out the offense reports to defense attorneys, which has (of course) brought up the question as to why Harris County does not do the same.

It's a very legitimate question. The copying of offense reports expedites the job that needs to be done by defense attorneys. Rather than having to make the trip to the D.A.'s Office, a copy lets the defense attorney save countless hours of taking handwritten notes on a file. It can eliminate inaccurate note taking. It can let a lawyer be lawyer rather than a stenographer.

In principle, there is absolutely no reason whatsoever not to allow the Defense Bar to have copies of offense reports. It simplifies the job for both the defense and the prosecution. When I was a prosecutor, I was never opposed to the idea of giving copies of offense reports to the defense bar -- I just wasn't allowed to. And, I never knew of another prosecutor who was opposed to it, either.

So, if it's such a fantastic idea, why hasn't it been happening all along? And why hasn't it happened in compliance with Lykos' campaign promise that she would allow the copies immediately?

Well, it's bureaucracy and logistics, of course. I mean, we are dealing with government after all, now aren't we?

NOTE: PLEASE APPRECIATE THE IRONY OF THE STATEMENT I'M ABOUT TO MAKE.

Pat Lykos is right in taking a cautioned and well-thought out approach before handing out copies of offense reports to the Defense Bar.

Offense reports contain detailed information about the parties involved in criminal cases. They contain Social Security numbers, Driver's License numbers, dates of birth, addresses, and phone numbers of victims. Sometimes they contain medical history. They have all kinds of private information. There is a very strong argument to be made that this type of information shouldn't be released in copied form from the D.A.'s office.

In any attorney-client relationship, the client is entitled to demand a copy of his file (kept by his attorney). If a Defendant is engaging in identity theft, it probably isn't in the best interest of the Public to be handing out the Social Security numbers of victims to said Defendant. If a Defendant is a member of the Texas Syndicate, a name and address list of all the witnesses may be contrary to their best interest.

You get the picture.

So what do you if you are the elected D.A.? You want to be fair and helpful to the Defense Bar, but you want to protect the privacy of the victims and witnesses. There is a need for some serious redaction of the information in the offense reports before handing them over to the Defense Bar.

The logistics of the copying problem are now twofold:

1. Who is going to pay for the copies?; and (more importantly)
2. Who is going to do the redacting?

My modest proposal here is that it is time for the D.A.'s Office to start hiring some paralegals. Putting the burden of redaction on the actual prosecutors is going to have them spending more time at the Xerox machine than they are working on their cases. They didn't go to law school for that, and it isn't what they should really be spending their time doing. They need to be working on their cases, not copying them.

I'm just throwing this out here, but this is my far-fetched idea of what the D.A.'s Office should be doing regarding the copying of the files:

1. Print out two copies of every offense report.
2. Invest in a stamp that says something to the effect of "Defense Copy" in a color other than black and put it on every page of the copies. The stamp should also contain a warning that the pages are not to be Xerox copied.
3. Draw up a non-disclosure agreement that the Defense Attorney must sign that makes them swear not to divulge an enumerated list of items (e.g. Social Security numbers, Driver's License numbers, etc.) to their clients.
4. Part of the agreement should be that no Xerox copy of the offense report shall be copied or disseminated to anyone other than counsel or investigators or other agents for counsel.
5. Make part of the agreement be that the offense report is returned to the District Attorney's Office upon disposition of the case. That way, if the client demands a copy of his file from his attorney, the offense report isn't part of it.

I'm sure there are plenty of flaws in my plan, and I know you guys will be more than happy to point them out to me.

The bottom line is that I think Lykos over-reached when she said she would turn over the offense reports immediately upon taking office. She made a campaign promise that she couldn't realistically live up to in the way she described.

But she's right to think it out before handing over the reports.

I have no doubt that we'll get there eventually.