Defending in Dallas: 2012

On the 2nd of February a Judge in Dallas held a Dallas County Assistant District Attorney in contempt. (I live tweeted this @DefendInDallas, where I frequent far more often than write here on the blog.) The judge suspended the order and demanded a hearing on the requested discovery the next day. Then, the Judge was served a Grand Jury Subpoena at 9:40 am to appear at 10:00 am when she was to rule on the contempt hearing and discovery at 11:00 am.

http://www.dallasnews.com/news/community-news/dallas/headlines/20120205-dallas-da-judge-clash-over-demand-that-prosecutors-provide-criminal-histories-of-officers-who-testify.ece (Have to pay to read the article.)

and

http://www.dallasnews.com/news/local-news/20120207-dallas-county-da-seeks-to-indict-judge-for-official-oppression.ece?action=reregister (Again, have to pay)

Here's a portion of the most recent article:

The Dallas County district attorney’s office is seeking an official-oppression indictment against a sitting judge after a prosecutor was held in contempt and detained in a courtroom for several hours.
Prosecutors contend in a letter to Criminal Court Judge Julia Hayes that she broke the law. But her attorney said the district attorney’s office is retaliating against the judge.

“The real official oppression here is the DA’s office trying to intimidate this judge by issuing her a subpoena, trying to get her to testify in front of a grand jury,” said J. Michael Price II, who represents Hayes. “This whole thing is a circus.”
...
The escalating legal feud follows Hayes’ ruling Thursday that a prosecutor was in contempt of court for disregarding her order to conduct a criminal background check on police officers who were to testify in a domestic case in her court. The district attorney’s office believes such searches are illegal.

Hayes said she wanted to inspect the records to determine if the defense was legally entitled to any information. Prosecutors are required to give the defense any evidence that could help the defendant. A criminal record of a police officer involved in the case could fall into that category. [And it does if it's a crime of moral turpitude or a felony, which indicates a tendency for deception. - D I D]

Hayes a short time later on Thursday suspended the contempt order against prosecutor Keena Miller after meeting with Watkins. She set a hearing for the next day. Lawyers held in contempt are entitled to a hearing within 24 hours before another judge.

But early in the morning, representatives of the district attorney’s office served her a subpoena and ordered her to appear before the grand jury at 10 a.m. Hayes was given a letter from Watkins saying she was a target of an investigation.

“Please be advised that there is now pending before the Dallas County Grand Jury an investigation of Official Oppression, where you are the person accused of the crime,” Watkins wrote on the district attorney’s office letterhead.

“This letter is to advise you that it would be in your best interest to retain the services of an attorney,” it states. “If you do retain the services of an attorney, he or she may contact our office to discuss the allegations with the Dallas County District Attorney, Honorable Craig Watkins or his designee. We will not discuss the facts of the case with you over the telephone.”

The letter also tells Hayes: “You have the right to remain silent.”

Hayes said in an interview that the timing of the investigation was questionable.

“I find it peculiar that I was served with a subpoena at 9:40 a.m. ordering me to appear before the grand jury at 10 when I was scheduled to rule on my contempt consideration at 11” the same day, Hayes said.

The subpoena of Hayes was quashed by state District Judge Carter Thompson, a felony court judge, after Price objected, citing that his client needed time to prepare for an appearance, that the district attorney’s office is supposed to represent her on legal matters and has a conflict, and that the “subpoena appears to be in retaliation for rulings made in court.”

The district attorney’s office has asked Thompson to reconsider his decision. A hearing has been scheduled for later this week in Thompson’s chambers. That hearing is not expected to be public

The district attorney’s office, meanwhile, has appealed Hayes’ order to do the criminal background checks, and there is no timeline for the appellate court to rule.

The district attorney’s office has asked that all records of the proceedings in Thompson’s court be sealed from public view because they relate to grand jury proceedings, which are typically secret.

The Texas Penal Code defines official oppression, in part, as public servants using their offices to “intentionally subject another to mistreatment or to arrest, detention.” It is a Class A misdemeanor, punishable by up to one year in the county jail and a $4,000 fine.

Because official oppression is a misdemeanor, prosecutors are not required to present the case to a grand jury. They could just charge Hayes.

“Because I am being investigated for a criminal act, I fear that I could be arrested at any time,” Hayes said. “Judges shouldn’t have to live in fear when we’re just doing our jobs.”

What they are arguing over:

The Defense wants to know if there are any qualified events in the officer's history that would allow the attorney to impeach the witness while on the stand.

The DA is saying: we shouldn't have to create something that's not technically already printed out in our file.

If any witness has a crime of moral turpitude or a felony on their record, the defense has a right to know it. By law, that's something with which you can question the witness's veracity.

The DA has this information in the form of the electronic criminal history record, TCIC for Texas, NCIC for US. State law allows a printed copy of this private information to be turned over to the defense with a court order. (Which happened in both of the cases.)

A Federal memo from 2001 suggested that any Federal info in the NCIC might not be appropriate to disclose given privacy concerns. This memo is moot for two reasons. First, as is mentioned here earlier, the Federal policies on information have changed dramatially. Second, that exact information is provided to the defense counsel regarding all witnesses that are not police officers.

The DA's office may be relying on an unpublished ruling titled, 'In Re Cindy Stormer', a case filed by then District Attorney Cindy Stormer against Former District Attorney, now Honorable District Judge Janelle Haverkamp. http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=15584

In it, Stormer argued some 40 or so (You'd have to read the original request for discovery to get the exact number.) orders by the judge were improper requirements on discovery as Ms. Stormer did not want to reveal to the defense difficulties with her case. She also wanted defense counsel to sign 'open file agreements' where by the defense was required to waive most rights to time limitations, notice, and Brady restrictions in return for a chance at an open file. Essentially she was holding the files hostage and demanding defense attorneys yield a heap of rights just to get to read what she had in the case file. The court ruled AGAINST Stormer on almost every count except the singular issue of creation of documents. (Actually a total of 4 requests.) The court ruled that the DA's office shouldn't have to create a summary of evidence or any such 'work product' to respond to the discovery request.

Cops in Dallas County have criminal records because they are often suspended temporarily or reprimanded for breaking the law. Defense Attorneys in the area keep a running list, as best they can, on officers' misconduct because the District Attorney's office does its very best to hide those credibility problems from the bright lights of the courtroom.

I'm proud to know a Judge finally stood up to the DA's office and declared hiding information that is mitigating or exculpatory isn't right!

It might also interest you to know that PD Beth Perry, the Public Defender on the current case, had an ADA Supervisor in her face hollering, "This is all your fault. I can't believe you caused all of this." and another ADA on a case this week shrilly stammered, "How dare you state in open court, in front of the jury, we didn't turn over discovery!?"

The DA's office is out of control and appalling.

Defending in Dallas

Wednesday, February 8, 2012

Fireworks and Oppression at Crowley!

Friday, February 3, 2012

Returning to the Work