The Prosecutor, March-April 2012, Volume 42, No. 2

Reclaiming the moral high ground

If you’ve been following the news at all here lately, you’ve no doubt noticed a lot of discussion in the media concerning the issue of transparency, or the lack thereof, in prosecutors’ offices in Texas and across the country. Whether it relates to a discussion of the need for mandatory “open file” policies, claims of Brady violations, or prosecutors taking the Fifth, it seems that every time you turn around some reporter or editorial board is suggesting that prosecutors are afraid of the truth.
    How did this come to be? In civil practice, there’s an old saying that “a lawyer’s time is his stock in trade.” Because prosecutors don’t typically charge by the billable hour for their time, I would like to think a slight variation of that saying is more appropriate for us. I would suggest something along the lines of: “The truth is a prosecutor’s stock in trade.” 
    In a former life, I worked as a civil lawyer in an insurance defense law firm, which was frequently engaged by insurance companies to provide representation for companies sued in personal injury claims. Whether it was a “slip and fall,” motor vehicle accident, or medical malpractice case, in the context of written discovery, almost every answer to an interrogatory or request for production of documents began with something along the lines of, “Objection. This request is over-broad/calls for a legal conclusion/seeks privileged information/ seeks information protected by the attorney-client privilege.” It was as if we looked for creative ways to avoid revealing evidence that was important or potentially harmful to our side of the case. Of course, the plaintiff’s lawyers did the same thing in response to written discovery propounded by the defense. All of this gamesmanship inevitably resulted in filing motions to compel discovery, hearings before the trial judge, orders compelling the production of evidence, requests for sanctions against the other side, and so on.
    Aside from no longer having to keep a meticulous ledger of every single minute I spent during the work day for billing purposes, one of the most profound differences I noticed in the practice of law when I became an assistant district attorney was the lack of “paper pushing” as it related to discovery. My predecessor in office, John Holleman, for whom I went to work in February 1996, had an open-file policy in effect at the time and was very supportive of transparency by the State. Mr. Holleman was a very experienced prosecutor and trial attorney and explained to me many times how an open-file policy could cure various criminal discovery oversights related to Brady or “good faith” mistakes in the failure to list a trial witness or a prior conviction in response to a Rule 404(b) request. Our district judges knew that our office had such a policy and routinely made evidence available to the defense for inspection. I can recall several instances over the years where Mr. Holleman’s open files really helped us out at trial or on appeal.
    In spite of the that policy, one of the things I noticed during my time as an assistant was that there were still several defense attorneys—mostly from out of town—who persisted in filing voluminous “boiler plate” discovery motions and tying up our judges’ time in pretrial hearings on those motions. I always thought this was a little silly and a waste of time in view of the fact that we routinely gave the defense attorneys access to all of the information in our files. When I took office as the elected criminal district attorney in 2007, one of my first objectives was to discourage the filing of these boiler-plate discovery motions. Ken Sparks, the county and district attorney in Colorado County, was kind enough to share a mutual discovery agreement he had been using very effectively, and I adopted Ken’s policy with a few very minor modifications for Polk County. One of the things that Mr. Holleman had not allowed but that many of our local defense attorneys had been seeking was an opportunity to copy our files. When I adopted Ken’s policy for our county, the deal I made with defense attorneys was that I would allow them to copy our files in exchange for their not filing written discovery motions. We still furnish them a witness list and extraneous offense notice if they request one, but I’ve found that in most cases, once they’ve been able to make a copy of our file, they no longer request written notice. The only exceptions we have to this policy relate to criminal histories, certain information pertaining to child victims or witnesses, or information otherwise confidential by law. Almost universally, this policy has been well-received by the defense bar in Polk County.
    In view of the recent media interest in criminal discovery policies, or lack thereof, I must confess that it’s kind of hard for me to relate to the controversy. From the day I first became a prosecutor, it’s been the policy of the office that I’ve worked in to voluntarily share our information with defense attorneys and to work with them to address their various discovery needs. In short, we try to be transparent, and they seem to appreciate it. More importantly, I think they understand that our open-file and file-copy policies protect them and any judgment and sentence from post-conviction claims and grievances related to ineffective assistance of counsel.   
    As a matter of personal policy, it is my belief that prosecutors, more than any other type of lawyer, should strive for openness and transparency. Contrary to the claim of Colonel Nathan Jessep in A Few Good Men (he’s the character made so famous by Jack Nicholson) we can and should be able to “handle the truth.” The cover of this publication quotes Article 2.01 of the Texas Code of Criminal Procedure, stating that “it shall be the primary duty of all prosecuting attorneys ... not to convict but to see that justice is done.” Justice, I submit, in any given case is based upon all of the facts, good and bad, as they relate to the particular case. How can justice ever be obtained if we aren’t open, honest, and realistic with ourselves, the defense, and the trier of fact, about all of the facts of our case?
    Understandably, there are times in any criminal investigation or prosecution where information should and must remain confidential. Before a suspect is developed or arrested, during juvenile proceedings, and during grand jury proceedings are a few of those situations that immediately come to mind. But in most cases there inevitably comes a time when we need to lay all of our cards on the table. It causes us as prosecutors to be realistic about the strength of our case. It helps defense attorneys to do their jobs better. And, at the end of the day, it increases the likelihood of obtaining a just outcome for that case.  
    I’ve heard some prosecutors argue that our system is an “adversarial” one and, to an extent, I do agree with that proposition. Both sides in any criminal case have rules of procedure and evidence which must be followed. Aaron Condon, one of my favorite law professors at Ole Miss, used to say that the word “objection” was “a sound you heard in the courtroom when the truth was about to break out!” With that said, I’m not sure that it’s right to use procedural rules and tactics to resist the discovery of evidence or make life more difficult for the other side, at least as it relates to revealing the truth. Eventually, the truth always comes out and it does us no good—in fact, it makes us look bad—to prolong the inevitable.
    Ultimately, we are purveyors of the truth. We are the ones in the white hats. We are the seekers of justice. Being obstructive, being disagreeable, or, heaven forbid, hiding the truth, is not who we are. When the media and other critics are coming after us for discovery or Brady shortcomings, I think it is even that much more important that we strive for openness and transparency. In doing so, we can reclaim the moral high ground on these issues, increase the likelihood of a fair and just result in each case, and ultimately restore and enhance public confidence in our profession.