It seems as though the wait for prior J & S's is getting longer and longer. It can take more than 6 months to get priors from Dallas or Harris County. I believe we may need to look at a legislative fix to our dependence on paper priors.
I'd like to hear from ALL participants about how long it takes to get misdemeanor judgement and sentences from other Counties including Tarrant. I'd also like to hear suggestions as to how we can fix this short of issuing a subpoena for the out of County Clerk. Thanks.
When the Punishment Standards Commission was looking at the issue of criminal history (back in 1992 for you young
'uns), the intial recommendation was to place the burden on the defendant to challenge the accuracy of a criminal history allegation.
Or, we could ease the restrictions on authentication so that a faxed or digital image is admissible.
Or, we could allow the introduction of a rap sheet to create a presumption and leave it to the defendant to rebut it.
Or, we could get clerks to do their jobs a lot quicker.
Many times we have to send an investigator down to Harris County and verbally ask the clerk for a copy of the J&S. We tell them not to leave until they get the J&S. This only takes place in important cases. In less "pressing" we subpoena the clerk.
My solution: Enact law which sets up a centralized computer into which all judgments in courts of record are entered in electronic format (e.g., pdf) by scanner or other method. Clerks are required to send such copies to the central location (which might also be handled electronically). These records are indexed by name of the defendant and put in a particular electronic folder. Prosecutor can then request copy of any judgment against "Joe Blow", which arrives at least as quickly as pen packets do currently. Rules of evidence are amended to provide any copy coming from the repository is presumed authentic and to pertain to the defendant (based on identity of name). Defendant is free to prove it was a different person who was convicted (or to shift burden to prosecution to further show identity by filing a sworn affidavit challenging identity). Local clerks are freed to do other things. Cost of central repository is paid at state level (and shouldn't be all that much). To go back in time, clerks merely send in their minute books (which supposedly already contain all of the judgments). Prosecutors or their investigators are freed to do other things. There could even be requirement that all judgments reflect certain indentifying information for the defendant.
[This message was edited by Martin Peterson on 02-04-02 at .]
I think a combination of martin's data base idea and the presumption that John talked about are both needed. Perhaps a metting between the District Attorneys with their respective clerks offices might alleviate some of the backlog.
I think Martin's idea is first class, and would solve an enormous amount of problems. But the legislature doesn't meet for another 2 years.
If the clerk from whatever county doesn't want to do it the easy way, by timely mailing in the proper paperwork, then he can do it the hard way, by driving to your courthouse, and waiting around with the rest of the witnesses until called by the State.
And then he can drive home. Perhaps, if we are all lucky, the trip from your courthouse to his home county is long enough for him to figure out that there is an easier way of doing his job than personally going to court. A letter from a prosecutor's office requesting certified records is really a polite way of demanding the clerk do his job.
As those who have been to our fine city know, the clerk may get too much enjoyment out of the seeing the beauty that is downtown Fort Worth. In fact other clerks from out of town may start refusing to cooperate just to get to see all that "Cowtown" has to offer.
Copies fax well and can come in per the case you cite but faxes fingerprints are pretty worthless and from what I am told its not he mailing bur rather the retrieving from the warehouse that causes the delay.
The need for fingerprint identification needs to be eliminated. Gibson, 952 S.W.2d at 573 essentially allows this to occur for driving offenses reported to the DPS (where nothing more than the name and DL number are used to identify the person convicted). I believe the burden of disproving identity could constitutionally be shifted to the defendant (since who should better know the facts). This type of change will require a change by statute or in the rules of evidence (or both). Often even the original does not contain an identifiable print- making the judgment useless under the present scheme. By the way, the last time I requested a misdemeanor judgment from Dallas County, the Clerk decided to send (instead) a computer printout of the criminal index, showing that such judgment existed at one time, but obviously providing no way of proving identity. The printout showed the disposition, etc., so I guess they thought that would do. Do the urban areas not keep minute books that are not stored in some warehouse? Of course, I recognize that the county clerks seem to take a completely different view of what goes in the minutes than most district clerks. Digital documents are the coming thing and sooner or later collecting them all at a central location will get some legislators' attention.
My argument isn't fully developed, but it might go something like this: It was recently held that establishing the identity of the defendant in a prior criminal proceeding is a procedural matter entailing a question of conditional relevance. Proof of identity is an "evidentiary fact" which presents a question of law for the court and this evidence need not even have been presented to the jury for a conviction to be sustained. Smith, 998 S.W.2d at 687, 690. Just as the Legislature obviated the need to prove a predicate under Rule 702 with respect to intoxilizer test results, Scherl, 7 S.W.3d at 652-3, and Rule 402 with respect to breath test refusals, Moore, 981 S.W.2d at 707-8, it could specify what evidence of a prior conviction is required to prove the fact of the conviction or that certain evidence is admissible without other proof. And the courts could recognize that a prima facie showing of admissibility (authenticity and relevance) shifts the burden to the defendant. E.g. Ruckman v. State, No. 12-99-388-CR (burden to show admission was voluntary is on the State, but once this burden is met, the burden shifts to defendant to show statement was involuntary). I recognize, however, that the Legislature would effectively have to overrule such cases as Zimmer, 989 S.W.2d at 51-2. I think giving the defendant the opportunity to file a "counter-affidavit" would cure the idea that he can be picked on just because he shares a name with someone. I have to wonder whether Mr. Smith got prosecuted for perjury as well as robbery.
Maybe Barry Green will return to present the other side. Even good arguments sometimes don't carry much weight in the Legislature. Now if we can only find someone willing to draft the actual bill and get a good fiscal note. By the way, Terry, I think we are less than a year away from the next session, so maybe it is time to rally the troops. Unfortunately, I just didn't have a good (more immediately available) solution to Richard's problem, so I thought I'd throw out what I could. Actually, I have found many, many county clerks very willing to help in providing certified copies of judgments at no cost to our office on a fairly prompt basis. But there is no doubt, Dallas and Harris Counties are more problematic.
When I get in a jam for a judgment, I usually resort to calling a prosecutor in that jurisdiction and begging for a favor. It has always been my experience that clerks will move a little faster for one of their own. In some hypothetical county that certainly wouldn't be mine , the prosecutor can even go pull the file, make the copy, then ask the clerk to certify it. I've also found this method works well when I'm trying to get out of state judgments. And I'm always willing to repay the favor, in kind or with a cold beer.
Perhaps we should do away with fingerprint identification...BUT, I am reminded of a case in a small county up the road a few years back. I was called to the courthouse to "prove-up" a pen packet on a defendant -- he was hoping for a good plea offer because he claimed to be a first-timer with no prison record. The D.A. at the time was hoping to slam the guy because he had a previous agg robbery, according to the judgment and sentence.
The person in the J&S had the same name and nearly identical birthdate as the defendant. He was from Houston, just like the judgment & sentence reported, even the photo in the paperwork looked like the guy in the courthouse. BUT, and it's a big BUT -- the fingerprints in the pen packet were NOT the prints of the guy sitting at the table there in the courtroom. The fingerprints sparked a further investigation, and lo and behold, the defendant WAS NOT the guy who had the previous conviction.
We have all had a defendant who did not have the criminal history initially reported on TCIC or NCIC. That is not the point.
The point is: Who should have the burden of putting the State on notice that it should be prepared to prove the criminal history belongs to the defendant. If the defendant files a sworn affidavit that he is not the person who has the alleged criminal history, then the State would have the fingerprints compared. And, with little effort on the defendant's part, his due process rights are protected.
On the other hand, in the other 99.9% of the cases, why should the State be required to go to the time and expense of obtaining the records and making fingerpring comparisons if there is no genuine dispute?
In most states, it is done this way because punishment is done by the judge, rather than a jury. And, even in Texas, if the judge is doing punishment, a PSI essentially uses the same time-saving procedure. And under the PSI procedure, a defendant must offer proof that the PSI, including the criminal history, is inaccurate.
So, what is the big deal about extending this to jury trials?
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