I’m looking for suggestions on how to deal with a situation where I need to respond to a death penalty brief but have no record with which to work. As per the appellate rules, the clerk’s and reporter’s records were prepared in triplicate, with the originals being sent to the Court of Criminal Appeals and the other two sets being filed with the district clerk “for the use of the parties.” According to the district clerk’s records, at their requests, one of those two copies of the record was mailed to the defendant’s appellate attorney and the other copy was mailed to his writ attorney back in mid to late 2009. The appellate attorney filed his brief in April. As our May deadline for responding was approaching, I contacted that attorney, who practices 136 miles away, to point out that we were unable to begin working on our brief because he had not returned the record. He apologized and said he’d get it sent the next day. But then he later emailed me to say that he didn’t think he’d ever received the record and that he’d prepared his brief form a CD that he could copy for me. I then reviewed the trial court’s record in the district clerk’s office and saw cover letters when they sent him the record, which gibed with the entries on their website. So, I sent him a certified letter a week ago, attaching copies of the clerk’s cover letters and website info, declining his offer to send a copy of his CD, saying that I did not want to read a 25-volume record on a computer screen and wanted to make sure I was working from the same official documents that he and the CCrA were working from. I told him if the record was not returned within a week, I would have to seek relief from the court. I also sent a letter to the district clerk, noting her duty to maintain those two copies for the parties use, noting that she had sent them to the defense attorneys, and asking that she take whatever action necessary to assure the immediate return of the record that the appellate attorney had been mailed. I sent copies of both letters to the trial court and the CCrA, and sent a copy of one to the writ attorney, just to make sure everyone was aware of the problem. To date, I have not heard from anyone. (I didn’t really expect to hear from the writ attorney, who is also 125 miles away, because his writ is not due until after our brief.) So, I spoke with Sian Schilhab at the CCrA today to see what she recommended. She said she was not aware of this ever happening before and suggested that I contact TDCAA to see if anyone there had encountered a similar problem. I did so today and Seth suggested that I post this on the forum while he checked with John Stride. So, does anyone have any recommendations? Sian seemed to agree that jurisdiction over the appeal fell now in her court, although the trial court still had jurisdiction over the writ. As a result, I plan to file something with the CCrA but am not sure what relief to seek. I am inclined to ask that the court compel the appellate attorney to return the record or make arrangements to have it reproduced and re-filed with the district clerk. Sian said I could also ask that the CCrA remand the case to the trial court to have it get involved. She seemed to think a mandamus against the district clerk would not fly. In any event, she said I would need to back up all of my factual allegations, which should be fairly easy to do between the cover letters and affidavits I should be able to get from the clerk and the court reporter. Has anyone ever had to deal with a similar situation? If not, does anyone have any suggestions on how to best handle this? Thanks in advance. Jim Rosenkild, Nueces County.

I've run into the problem before of the defense attorney not returning the record. Generally, a phone call or letter has resulted in return of the record.

If the record has truly been lost, then the court reporter could be required to produce another duplicate, and the party causing the loss could be forced (presumably by the trial court) to reimburse the county for the expense.

If the defense attorney is just refusing to return it, perhaps:

contempt of court following an order to return it;

criminal charge of tampering with a record;

criminal charge of theft;

subpoena duces tecum to bring record to hearing on why defense attorney should not be held in contempt of court.

By the way, if a CD exists, then that should be an accurate duplicate of the record, assuming it covers both the clerk's and court reporter's records. Just a matter of printing it out (again, bill the defense attorney) if you need a hard copy.

Personally, I have gotten very comfortable with electronic records. But I can understand why you would want a hard copy of such a large record.

Keep us posted.

My suggestions have already been passed along: briefly, if you can't work it out locally, move the CCA to order the trial court to resolve the matter.

Personally, over recent years I have noticed the sluggishness with which some defense attorneys return the records after filing their briefs. It can be a significant delay sometimes.
Has anyone else has noticed this trend?

I realize that clerks are often overworked, unfamilar with appellate work, and lack authority to order counsel to return records, so I wonder if it is time to seek implementation of an appellate rule? Perhaps one that requires all counsel (1) to certify in their brief that they have returned the record within two business days of filing their brief, or (2) to forward a receipt to the appellate court within two business days of filing their brief that demonstrates they have returned the record, or (3) another alternative.

Any comments?

A couple of our defense attorneys got flooded during Ike. One of the many things lost were reporters records. Once it was clear that the records had floated away, the court reporter just printed off new ones. Can you go to your court reporter?


We have had a few new guys (not the usual appellate crowd) hang on to records. Generally, a phone call results in the record returned....often marked up a bit.
One guy actually said that record was his. I explained he was appointed and that the record belonged to the county. He fedexed it back the next day....and I haven't seen another appeal from him.

My experiences here in Collin County have generally been positive. The clerk's get right on attorneys who do not timely return the record.

In Dallas County, we sometimes had issues with non-indigent defendants only paying for their "own" copy, and the court reporter's expecting prosecutors to pay for another copy.

As to the court reporter printing a new copy, death penalty records are large and the printing cost would be too. And, pagination doesn't always stay the same depending on if the court reporter's computer or printer changed in the mean time. I briefed a death penalty case one time where the other side was using a reporters record with different page numbers from mine. Disaster.

The clerk's rarely call for our office, but I have almost always had immediate response from the defense attorneys. Only once did I have to resort to having the clerk's call and demand.