I really think I have asked this quesiton in the past, but I don't recall the answer and I can't find the post.

I have a case where the defense attorney filed an Anders brief, and the appelant exercised his right to proceed pro se. The defendant is indigent, and the court reporter filed a copy of the record with the appellate court and the district clerk. This particular court reporter insists that the district clerk's office not make a copy of his records, so the judge orders the district clerk's copy sent to the appellant in TDC. (I know it's crazy, and I have repeatedly asked the judge to send a copy. That's a whole nother story.)

So you can guess what happens next. The dough head in TDC doesn't return the record, and I can't write the brief without it. The last time this happened I filed a Motion to Compel the return of the brief with the Court of Appeals, along with each of my Motions for Extension of Time. The court never granted my motion, I never filed a brief, and the case was affirmed. (Whew.)

Now I have the same situation, and I really, really need that record. I know I can go to Tyler to read the one at the Court of Appeals, but I need it at hand while I'm writing.

Does anyone else have this problem? How do you solve it?

Never had such a bizarre thing occur (most often, we deal with defense attorneys slow to return to the record).

How about: Since the trial judge got you in this pickle, file a motion and get an order from the judge ordering the institution (jail or prison) to seize (allowing the defendant to remove any work product) and return the record to the clerk. To expedite matters FAX a copy of the order to the institution. Failing that file a motion and get an order from the judge instructing the reporter to file another copy of the record with the clerk. I would copy the COA on all correspondence.

Also, one COA might be more sympathetic than another COA. Call the COA clerk's office and explain your problem.

The COA staff might have another solution. In practice, some COA don't seem to care about a State's brief where an Anders brief has been filed. We usually just file a letter with the COA acknowledging the Anders brief and informing the COA that we will file a brief if so ordered. I can't recall ever being ordered to file a brief or losing a case where an Anders brief was filed.


JAS

[This message was edited by JAS on 08-05-08 at .]

Umm, defendant has no right to privacy in cell. He has no ownership of the record. Seems to me someone could just go into the cell and get it. I bet it is in great shape.

Or, order another copy of the record and send the bill to the judge.

Aren't court reporters now required to provide an electronic copy of the record as well nowadays? Maybe just get the disk.

Hope it wasn't a sex crime.

Sounds like you had a specific experience, JohnR.

Just a thought, John, but in practice would jail or prison authorities act without a court order to seize legal materials? I have no experience on this so I don't know.

JAS

As for getting your record back, I would think that you would get best results by discussing the matter with the particular warden of the unit.

As for giving an inmate access to an appellate record in general, I seem to recall that the officer responsible for the law library can be held responsible for maintaining the record and ensuring the inmate has adequate access to it in the library. (It has been a long time since I worked for Inmate Legal Services, but I seem to recall that they can help facilitate things).

We recently had an inmate decide to go pro se on an out-of-time appeal. Becasue it was a sexual offense with pornography in the record, the judge decided to bench him back to the county to do his research rather than give him a copy. That seemed to work well.

It would seem to me that the document in question is a governmental record and that your defendant is (at least after notice) intentionally concealing, removing, or otherwise impairing the availability of the it. Maybe the defendant is not worried about committing a Class A misdemeanor under 37.10(a)(3), but at least that statute should give you a little leverage.