Little help would be appreciated.

We have an open file policy. Policy is for file to be open up to the friday before jury docket w/is on Monday a.m.
Also, we have an Agreed Discovery Order stating they are entitled to copies of file, but must first pay the clerk before they will turn it over (fee is for copy cost).

Issue - Def. Atty got the agreed disc. order and judge signed it back in July. Def. atty never went and paid the clerk for making the copies and doesn't appeared to have done any type of follow up.

Picked the jury this a.m. After, Def. atty asked to see the police report. We said no. Def. Atty pointed out the agreed disc. order. When asked if he ever went to pay for it or pick it up. Said thought the client did it.

Question - do we have to show him our file?

Do you want to litigate the incompetence of the defense attorney today or through a future postconviction write?

I understand that, completely. But, that leads to the question of what's the point of having office standards or policies if you don't enforce them?
Would it be better to do away with the "Open File closing the Friday before Trial" paragraph in the Agreed Disc. Order?

Now, I wouldn't say you should abandon a standard just because a lawyer is too incompetent to meet it. There should be consequences for the laziness. Perhaps the lawyer shouldn't be on the appointment list. Perhaps a grievance is called for. Perhaps you get a court order next time requiring the defense attorney to appear for discovery at a particular time and place and you pursue a contempt order when he ignores it.

But, you can't punish the defendant for the lawyers incompetence.

Most lawyers do a great job. They care about their reputation. But, we all know a few who are on the downside of their career. Maybe it's booze. Maybe it's family problems. Maybe they just don't have the scruples required of the job. But they are not the majority.

So, griping about it is OK. Go ahead, complain. But, then we have to do something about it other than have no standards at all.

The fact that counsel does not get to see a police report prior to its required disclosure under Evid.R. 612 or 615 (assuming it contains no Brady material), should not result in a valid claim of ineffective assistance. I would not let counsel have an open file except on the terms as you choose. It appears you may have an overbroad discovery order in place (but one you agreed to). If I thought the court would exclude evidence for my failure to comply with that order I would remedy that and in the future agree only to an order that conforms to 39.14. We have both a standard 39.14 order and an open file policy. That system seems to work well.

We recently had a case reversed (on direct appeal) for ineffective assistance. Court held that trial counsel failed to come and watch a video of defendant ranting with police after her arrest for assault of a public servant. Our position was that admission of the full tape would not have helped D's position and was not exculpatory.

Appellate court held that tape was discoverable (well, yes, but not mandatory) and could have changed the outcome of the trial. Huh?

Anyway, we have a PDR pending, hoping for some sanity from above. Meanwhile, the lesson is that appellate courts more and more think it is their job to try cases for lawyers.

Most defense attorneys do a good job, and I don't know what your defendant's attorney's story is. However, I can clearly recall having copies or making copies of reports, and still wanting to check something 'real quick' in the state's file, either prior to or during hearing/trail. I have always been accommodated (but I also have worked with a great group of prosecutors). I say go the extra mile, even if you don't want to. It saves appellate time (the claim is no reasonable investigation), extends the comraderie we all should have, and saves your reputation among brethren if you ever find yourself on our side (we have long, long memories). You could always take the time to remind the slacker about your policy, and how this would be a one time exception.

The fact that the prosecutor failed to provide access to a police offense report/investigation report will never, of itself, support a claim that defense counsel failed to properly investigate a defense. Whatever you choose to do to promote comraderie is your choice. We all play by a set of rules. Yet, rules are made to be broken and bent. But, I would not make that determination based on some phantom fear that opposing counsel will be proved ineffective because he did not follow an established procedure that might have gotten him something he was not entitled to in the first place.

The Johnson case involves an appellate court using hindsight to second guess or critique the strategy of an attorney (who made a conscious choice with respect to known evidence that arguably would have benefitted the defense). That is a different subject from what appears to be involved in your case.

Furthermore, one will note that the Austin Court cited nothing for its conclusions that seeking and obtaining inculpatory statements in the defendant's own voice is an essential part of case investigation, preparation for trial, and trial strategy or a fundamental aspect of discovery required (1) to prepare adequately for the prosecution's efforts to incriminate the defendant through the defendant's own words, which, as here, are often a damning form of evidence or (2) to make informed judgments regarding the strength of the prosecution's case or what witnesses to call.

That same thing could be said for all of the state's evidence- but neither Kinnamon nor Iness have yet been overruled. Johnson may involve a tangible thing not privileged, but your situation clearly involves a written statement of a witness or the work product of the state's investigators or their notes or report. To me, that is all the difference in the world.

[This message was edited by Martin Peterson on 10-25-05 at .]

I think anyone faced with this decision should go read Rompilla v. Beard from the Supremes, very recently handed down. It very often *IS* ineffective assistance to fail to look at the file whether or not there's Brady material in it. Don't only think about the state-law implications of your decisions vis a vis IAC claims... realize that in the bigger felonies your convictions will eventually be subject to federal writs-- what if the state precedent you rely on has been superceded by the Supremes?

my $.02,
Georgette