Texas Leads the Way - Open File Policy

John Council

Texas Lawyer

10-06-2008

When Craig Watkins took over as Dallas County district attorney in January 2007, one of the first big administrative changes he made was instituting an open-file policy that allows criminal-defense attorneys to see a prosecutor’s file before trial. Now he has taken that policy one step further and the implications could be huge, several appellate experts say.

As of Sept. 22, Watkins changed his open-file policy to include all post-conviction matters, meaning criminal-defense lawyers can now examine any of the thousands of case files the Dallas County District Attorney’s Office has handled in the past. Watkins says the office still has decades-old case files in storage.

“The idea is we have an open-file policy at trial, so why would we have anything to hide during the writ process?” Watkins says.

While some appellate lawyers say prosecutors have allowed them to see post-conviction files on a case-by-case basis, Watkins’ pol-icy appears to be a first-of-its-kind in Texas.

The policy change is just another effort to ensure that the wrong people aren’t in prison, says Watkins, whose office has worked to free numerous inmates — most of whom were convicted of rape charges — on the basis of DNA evidence. He formed a Conviction Integrity Unit within his office that examines innocence claims filed by prisoners. And last month, Watkins announced that his office would begin re-viewing the Dallas convictions of death-row inmates for possible errors.

Watkins says his efforts to ensure that people aren’t wrongfully imprisoned are paying dividends in the courtroom. He says a good example is a case his prosecutors tried recently in which a jury found a man guilty of capital murder in 30 minutes — a conviction that re-sulted in an automatic life sentence.

“I talked to the jury afterward. And they said, ‘Because of what you’re doing, we’re more apt to believe you. If you’re using your resources to make sure an innocent man isn’t being prosecuted, we believe you,’ ” Watkins says. “If you’re a prosecutor, that’s what you want. You want credibility. We have a lot more convictions than exonerations. And it’s really making Dallas County safer.”

Gary Udashen, a criminal-defense lawyer and partner in Dallas’ Sorrels Udashen & Anton, says he believes changing the policy to allow criminal-defense lawyers handling habeas corpus writs to see the files will have a significant impact on a defendant’s appeal.

“I think what we’re going to find is . . . exculpatory evidence that may have not been released to the defense,” Udashen says.

Since the U.S. Supreme Court’s opinion in 1963’s Brady v. Maryland, prosecutors have been required to turn over exculpatory evidence to the defense. But in Texas, discovery procedures vary between DAs’ offices. Some, such as the Tarrant County District Attor-ney’s Office, have had an open-file policy since the early 1970s that allows criminal-defense lawyers to see everything in a case file except attorney work product and victim’s and witnesses’ personal information. But other DAs’ offices leave it up to individual prosecutors handling a case as to what information they want to show the defense without the need for formal discovery proceedings.

“When I’ve had an opportunity to look at old DA files, I have found things in there that were Brady materials that should have been turned over to the defense,” says Udashen, who already has requested to look at several Dallas County prosecutors’ files on behalf of his clients. One file Udashen has requested under the new policy involves Randy Halprin, a death-row defendant convicted in 2003 of murdering an Irving police officer after a prison escape.

In his experience, materials prosecutors don’t turn over to the defense result from negligence rather than willfulness, Udashen says. He says it is often hard for prosecutors to understand what evidence may be valuable to the defense — a problem that does not arise in DAs’ offices that have open-file policies.

“Every once in a while, there’s a big piece of exculpatory evidence that a prosecutor willingly withholds,” Udashen says. “But more often the prosecutor just ignores it or doesn’t pay attention to it.”

Maurie Levin, senior staff attorney at the Texas Defender Service, applauds the latest move by the Dallas County DA’s Office.

“I think it’s a fabulous development and the right decision on their part because of their interest in not just innocence cases but in serving justice,” says Levin, who teaches the Capital Punishment Clinic at the University of Texas School of Law.

Levin says the new policy could result in criminal-defense lawyers discovering much more than just Brady evidence for cli-ents’ appeals.

“Some of the things that have been discovered in DAs’ case files are the race coding that took place on the jury sheets,” says Levin, referring to possible violations of Batson v. Kentucky, the 1986 U.S. Supreme Court opinion that prevents potential jurors from being struck from a venire panel based solely on their race. “There’s the potential for many types of claims that go to the fairness of the trial, not just inno-cence.”

Cause for Concern?

But changing an open-file policy to include post-conviction matters concerns some lawyers.

Criminal-defense lawyer Christie Williams says there could be some unintended consequences of changing the open-file policy to include appellate matters.

Williams, who was a Dallas County assistant DA from 1994 until 1999, says some Dallas prosecutors documented in their files what information was turned over to the defense and others did not. “That’s the big problem is how do you know what was disclosed and what wasn’t,” says Williams, who is a partner in the Austin office of Mills & Williams.

Williams also points out that a defendant’s trial lawyer and appellate lawyer are rarely the same person. “You’ve got a completely different writ lawyer. All he’s relying on is the [trial] defense lawyer’s file and now the prosecutor’s file.”

That’s a concern shared by Rob Kepple, executive director of the Texas District & County Attorneys Association.

“I think the angst and the worry is if you start to let someone graze the landscape of a 20-year-old case where no one has a good memory, you’re going to end up with poor memories of what was turned over and what wasn’t,” Kepple says. “You’re just setting yourself up for questions that can’t easily be resolved.”

The Denton County District Attorney’s Office instituted an open-file policy in 2007 for cases that are pending in trial court. But the office has not considered changing that policy to include post-conviction appeals, says First Assistant DA Jamie Beck. Denton prosecutors will exchange discovery with defense lawyers during appeals on a case-by-case basis, Beck says. But instituting a broader open-file policy to include all appellate matters gives her pause.

“At that point we have a stake in protecting the conviction and protecting the verdict,” she says. Beck worries that changing the open-file policy to include appellate matters would force prosecutors to retry their cases on appeal. On appeal, lawyers should be concerned more with legal issues than evidentiary issues, she says.

Dallas’ new policy could also result in a flood of requests from prisoners who want copies of their case files, says Alan Levy, chief of the criminal division of the Tarrant County DA’s office.

“If you get a lot of requests, you’re going to need a lot of manpower,” Levy says.

But Watkins doesn’t anticipate that being a problem. He says his office has not been flooded with DNA-testing requests, even in the wake of numerous exonerations in Dallas County.

Watkins also says that some lawyers in his appellate division were resistant to the policy change for all of the reasons mentioned above — concerns he listened to.

“I don’t want yes-men in this office. I’m not right on everything and there was some dissent,” Watkins says.

“In any situation, you’re going to have some kinks,” Watkins adds. “But the issue of doing justice will trump any issues that I con-sider small that are result of this policy.”

Michael Ware, head of the Conviction Integrity Unit in the Dallas County DA’s Office, agrees.

“I mean, what’s there to be worried about other than, if it means there is additional work to do, there’s additional work to do,” Ware says. “We’re going to work all of that stuff out.”

Michael Casillas, head of the appellate division in the Dallas County DA’s Office, says he’s ready for the challenge.

Notes Casillas: “I’m looking at it as if we’re entering a brave new world and we’re going to play it by ear.”