The Sound of Tiny Rattles
So today’s my birthday. And what better to do on my birthday than go to court. Representing a guy charged with a family-violence assault. Pro bono, because he’s in the Army.
Wait. Back up. A couple of weeks ago I go to court for this guy. And there’s an envelope in the State’s file. It doesn’t say “work product,” so I pull the papers out and start reading, without noticing the big “work product” header at the top of the first page. Reading the State’s work product is not something I would willfully do, but sometimes the Universe smiles on our clients, because this particular “work product” was, like the old joke ((“What’s that envelope marked “work product” in the prosecutor’s file?” “That’s the Brady material.” Brady material is information that is exculpatory, is mitigatory, or would impeach a State witness.)) goes, full of exculpatory and impeaching information.
This was an “FCLD” case—a case handled by the Family Criminal Law Division of the Harris County DA’s Office. FCLD handles cases in which the complainant ((The “victim.”)) in a family-violence case has recanted or is not cooperating with the State. I have represented many people against FCLD, and I don’t recall ever receiving notice of Brady information. Which, come to think of it, is odd because recantation would be Brady.
FCLD has “caseworkers” whose job appears to be to get recanting complainants back on the State’s team. And it seems that these caseworkers write reports on their interviews with the recanting complainants, and those files go in that work-product envelope, and I stumbled into one of them. I saw something in the notes of the interview about a “made-up” story. But once I get the gist a prosecutor points out that the document says “work product,” so I stop reading and put it away.
Today I file a motion asking the judge to review the State’s work product in camera and determine what portions of the file the State must produce under Brady. And the prosecutor suggests that instead I read the file and take notes.
So I fire up my laptop and start typing away. Ticka-ticka-ticka.
“You’re not taking verbatim notes, are you?” ((Remember the bad old days, during the Holmes administration, when the Harris County DA’s Office not only would not give defense lawyers copies of offense reports, but would try to keep them from taking verbatim notes from offense reports?
Then Rosenthal came along, and prosecutors had better things to worry about.
Then Lykos came along, and we got copies of offense reports, with things like driver’s license numbers and witnesses’ contact info redacted. Prosecutors still redacted from our copies things like our clients’ identifying information, (so we would have to go back and hand-copy all of the redacted information onto our copy of the offense report) but “you’re not taking verbatim notes, are you?” seemed like a relic of the past. So you can imagine the spike in my blood pressure.))
A minute later: “Why don’t you just read through it?”
“I need to take notes.”
“I think you’re taking verbatim notes.”
“I don’t really care what you think.” I wasn’t taking verbatim notes, though I probably should have been. Ticka-ticka— “I’ll tell you what, let’s just have the judge decide my motion.”
The judge took the judicial approach to my motion, avoiding either a decision or unnecessary work—instead of agreeing to review the work product in camera ((Latin for “in chambers”; refers to the judge reviewing documents without the parties’ presence.)) he advised the prosecutor that she should probably let me take my notes and not concern herself with how I was doing so—which is better for my client than an in camera review, if the lesson sticks.
Why did this prosecutor, who has been licensed all of two and a half years, need that lesson? Did someone from the Holmes generation tell her that she could keep me from taking verbatim notes from the file?
I’ve occasionally had doubts about the ethics of the Family Criminal Law Division of the DA’s Office—the division seems to attract true-believer prosecutors who have never seen a false allegation of family violence, and for whom the end might justify the means—but it never occurred to me before now that that FCLD might be actively teaching young lawyers to suppress Brady information.
A good prosecutor will bend over backwards to give the defense Brady information. A good prosecutor won’t put Brady material in the work product envelope in the first place. A good prosecutor will shoot a copy of the Brady information and give it to the defense counsel so that there’s no doubt that the prosecutor’s Constitutional duty is complied with.
A snake, by contrast, would do what she could to keep defense counsel from having an exact account of the exculpatory information.
Most prosecutors get a great deal of leeway from me, but snakes are dangerous, so they get treated differently than other lawyers. I’ll double-check an ethical prosecutor for honest mistakes; I’ll quadruple-check a suspected snake for cheating.
So that’s this prosecutor’s birthday present ((On her birthday too, coincidentally.)) to me: early identification of a possible snake.
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