Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

I’ve been thinking about posting about Mike Nifong’s disbarment, but before I got around to it, I ran across this excellent piece from an Austin prosecutor:

I don't believe in punishment for prosecutors who are simply wrong (the job inherently requires people to make important decisions, sometimes based upon limited information), but Nifong ignored crucial evidence while seeking indictments, withheld exculpatory evidence from the defense (a huge no no for prosecutors), and may have even perjured himself regarding the availability of certain evidence when responding to inquiries by the court…

The only thing that I find remarkable about the case is how much retribution is being heaped upon Nifong for his overzealous prosecution. I say this not because he is undeserving of it, but because this is probably not an entirely isolated incident in which prosecutors are aggressively and unethically prosecuting defendants whose guilt they have very good reason to doubt…

Even if overzealous, unjust prosecutions result in a correct verdict and exonerate some wrongly accused defendants, the typical low income defendant is unlikely to see the kind of justice meted out against an overzealous prosecutor on their case the way that it is currently being delivered to Mike Nifong.

Jason is exactly right, of course. Let’s not miss the point of the disbarment. Yes, these defendant’s were incorrectly charged, but it was the District Attorney’s grossly unethical behavior that got him in trouble. As well it should have.

It is neither unusual nor unethical for a prosecutor to indict an innocent person. They have no real way of knowing whether the person is actually factually 100% guilty. As they like to say in voir dire, only witnesses know the truth (and sometimes not even then), and jurors and lawyers involved can’t be witnesses in a case.

Nifong’s unethical behavior was hiding facts and evidence from the defense that showed that they were not guilty, and then lying to the Court about it. I suspect that it was the dishonesty with the judge that truly hung Nifong, rather than not turning over what we lawyers call Brady material.

As they say, it’s usually the cover up that gets folks in trouble.

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KC Johnson, author of the blog Durham-in-Wonderland, discusses prosecutor Mike Nifong’s inconsistent statements…first in a public hearing with a judge, then in a letter to the State Bar.

At issue, of course, is his meeting with Dr. Brian Meehan where it now seems clear that they agreed to withhold exculpatory evidence from the defense. It is now a matter of public record that Meehan told Nifong about the presence of multiple unidentified males on the accuser’s rape kit on April 10th. 

In June, the defense asked for the complete rape kit in a discovery motion. They also asked that the prosecutor memorialize his conversation with the doctor about the results. The judge denied their motion.

Now Nifong has denied to the State Bar that the meeting ever took place.

But, back to the inconsistent statements about the meeting itself, and whether it even occurred.  How could Nifong have tripped up in his letter to the bar, and contradicted his previous public and transcribed account?

Here’s where Johnson nails it:

Given the significance of the April 10 meeting, how could Nifong have been caught flat-footed by [defense attorney] Cheshire’s discussion of it?

The context of the hearing explains why.

In June, the key issue was not when Nifong met with Meehan, but whether the court would force the district attorney to memorialize two conversations—his April 10 meeting with Meehan, and his April 11 meeting with the accuser—and turn over additional items from what appeared to be an incomplete rape kit…

Meanwhile, on the conversations, Nifong focused most of his effort on explaining why the reliably pro-prosecution [Judge] Stephens should not require… him to memorialize what the accuser did or did not say in their April 11 meeting.

“It was not a meeting,” Nifong declared, “to discuss the specifics of the evidence in this case. Other matters were discussed, which, again, are not matters that are subject to discovery.”

So that’s indeed how Nifong got himself in this mess. But there’s a much bigger issue involved here:

Discovery in criminal prosecutions should not be limited. In any way. Ever.

The heart of the problem, particularly from the perspective of the wrongfully accused, is that their lawyer can’t walk into the DA’s office and have immediate, full, complete access to everything in the file.

I’ve previously discussed the Texas rules on criminal discovery, and we see here another example of the types of problems when the State is allowed to play hide and go seek with evidence.

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Scott Henson writes about possible pending legislative attempts mandating reciprocal discovery in Texas, where presumably both sides, prosecution and defense lawyers, would have to turn over any evidence they have to each other. Instead, he suggests:

The reform needed here isn't "reciprocal discovery," but simply to mandate that all Texas prosecutors maintain an "open file" policy to let defense counsel view and make copies of any documents they deem relevant to their defense. The system works well where it's been implemented, and where it hasn't it's a source of constant grousing and wasted time for the already clogged courts.

I agree. They are several problems, right off the bat with the idea of reciprocal discovery. 

First, in jurisdictions where turning over Brady material is already a problem for the prosecutors, I’m not sure that legislating that they turn over “their whole file” will work either. Don’t get me wrong – I love the idea of it. I’m just pointing out that when the State can’t always be trusted to turn over exculpatory evidence, aren’t we going to have the same problems knowing that they’ve turned over the whole file?

At least it will make the “May I have a copy of the police report?” problem presumably go away.

But secondly, my fear is a spate of criminal defendants having to use the state and federal appeals process complaining that their lawyer didn’t turn over evidence “in a timely fashion” that should have been used in trial – and thus was barred from introducing it. That’s what the “reciprocal” part of reciprocal discovery means. I haven’t seen any proposed legislation, but it will probably include a provision disallowing evidence that was not turned over to the state.

Defendants should have almost no bars on the type of evidence they want to bring in to trial, whether it is exculpatory, mitigating, or really, of any quality. Scott is right. Legislation requiring the State to allow full defense access to the evidence is the only common sense solution.

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While checking my referrer stats, I noticed someone find my blog by Googling “copy of police report Austin Texas”. This site pops up as one of the top responses to that search, probably due to my recent post about the criminal discovery process, both generally and here in Travis County. But the first site Google returns is the Austin Police Department’s FAQ page which purports to answer the question…

4. How do I purchase a police report?
For information about purchasing a copy of a police or accident report, contact that Austin Police Department Report Sales office at 974-5212. Reports can be purchased at either Police Headquarters in downtown Austin located at 715 E. 8th St; reports are available Monday through Friday between 7a.m. and 6 p.m. or you may purchase them from the North Substation locate at 12425 Lamplight Village Drive, reports are available Monday through Friday between 8 a. m. and 5 p. m.

Wait a minute, didn’t I just blog about the difficulties defense lawyers have in getting prosecutors in some counties to even allow them to read the police report, never mind getting a copy of them?

Well, here’s the answer, if you think there’s a conflict between APD’s FAQ page, and how things really work. Sure, they will take your money and hand over to you what they tell you is the police report, but it’s not…

It’s usually a two page document filled with information you already know or don’t care about, like the date of the arrest, the charges filed, the officer’s name, whether bias or family violence was involved, etc. etc.  Then there’s the section that gives detailed information about the defendant’s name, date of birth, driver’s license number, etc. etc.

But what about substance, the officer’s observations, any statements made? Well, I’m going to quote you exactly from one that I just took a look at:

On 8-25-06 at 0142 AM an arrest for DWI was made.

That’s it. It’s not a police report; it’s something called and actually titled a “press release”. You already know who you are, and what you were arrested for. Don’t waste your money giving it to A.P.D. for a so called copy of the police report.  Yes, there is such a thing as an offense report, which details all the officer's observations and conclusions, but it's not for sale.

I've had plenty of clients come into my office a few days after their arrest and announce to me that they already have the police report.  It always pains me to have to tell them that they have just wasted their time and money.

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When someone gets arrested in Austin, Texas and comes to see me for help with their case, one of the things they are usually surprised to find out about the system is the length of time it takes to get a copy of the police report – several months for a misdemeanor, sometimes never on a felony.

That’s right: I said sometimes never on a felony – at least until after a witness has testified during trial, and has used the report to refresh his memory.

We are actually fortunate in Travis County that the prosecutors, at least on misdemeanors, are so generous with sharing “their police report” with the defense lawyers. The law in Texas does not require that they do so.

Yesterday’s ACLU press release brought this topic to mind (Secret Evidence Allowed in Criminal Courts Unfair). They have brought suit in Ohio to change the criminal discovery process in that state:

“Allowing prosecution and defense equal access to all evidence creates a level playing field in courts,” said ACLU of Ohio Legal Director Jeffrey Gamso.  “Under the current system, prosecutors have a huge advantage over the defense because they can investigate and prepare evidence that the other side may not know about until it is presented at trial. The Constitution guarantees that every person is entitled to a fair trial, but such rules greatly decrease the ability for a person accused of a crime to mount a defense.”

Obviously, at least from the major media outlet perspective, this becomes most important in cases of actual innocence, because those who are wrongly convicted receive (perhaps justifiably) the most press. 

Yet there is another more practical reason (besides fairness) why Texas and other states should be required by statute to share their entire file with defense attorneys: not doing so wastes time and money. From the same ACLU release:

Evidence shows that if the accused know all of the evidence against them, they are more likely to resolve the matter without a trial saving jurors, judges, court appointed counsel and prosecutors’ time and money.

This should be a no brainer. There is no good reason to deny the defense full access to all of the prosecutor’s information.  It should never be an issue of whether or not the defendant is guilty.

Travis County does a good job overall with this, especially when compared to other Texas counties, but the local rule on open discovery needs to be extended to even the most serious felonies here, as well as apply to “minor” felonies and all misdemeanors.

If the defense lawyer is allowed to copy the entire police report in a first time misdemeanor marijuana case, does it make sense to hide the ball when it comes to murder?

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