New government loophole for open records requests.

Criminal defense attorneys and other government watchdog types who use open records requests to obtain information suffered a recent setback. In City of Dallas v. Abbott, the Texas Supreme Court addressed the government’s deadline for complying with such requests and gave the government a new loophole.

In the past, the government had a strict 10-day deadline for complying with open records requests. If the request was vague or overly broad, the government could seek clarification but the clock stopped running only until the clarification was provided. Now, however, the government’s deadline will be extend by 10 days.

That may not seem like such a big deal but the concern is that government officials may use the loophole to improperlydelay the release of information in time-sensitive situations in order to avoid accountability. Such concerns seem well-founded in light of the government’s history in this arena, which is what led to the legislature to impose the strict deadline in the first place.

Lawyer Bill Christian, who has represented the Austin American-Statesman on open records matters, has the following suggestions for avoiding improper delays with open records requests:

• Be as specific as possible so there are no grounds for seeking clarification. Don’t ask for “all documents” or “all records” unless it’s for a narrow, well-defined category.

• Make specific, narrow and numbered requests so that it’s more difficult for the agency to claim that the requests are vague.

• If you know what you are asking for, identify that document specifically as one of the numbered list.

• When a government agency seeks clarification, reply as quickly as possible with a narrowing or clarifying explanation.

Definition of “commercial instrument” (Shipp v. State).

According to the Texas Court at Appeals blog, the CCA will take up the issue of whether forgery of a “commercial instrument” includes a store receipt.

The Sixth Court of Appeals (Texarkana) didn’t think so, limiting the definition to instruments that affect a legal relationship or convey some sort of future benefit, and excluding a store receipt because it simply memorializes a transaction that has already occurred. Here’s the court of appeals opinion: Allen Ray Shipp v. State.

Update re. Briscoe v. Virginia (SCOTUS)

Back in November, I posted the following blurb about a case on this month’s argument calendar in the SCOTUS:

Briscoe v. Virginia (07-11191) — Scope of crime lab analysts’ role in a criminal trial; sequel to Melendez-Diaz v. Massachusetts,on Sixth Amendment Confrontation Clause rights. The Melendez-Diaz case,which was decided earlier this year, requires the prosecution, when itpresents a lab report as evidence in a criminal trial, to make theanalyst who prepared it available for cross-examination by defensecounsel. Sadly, the 5-4 decision may already be in jeopardy. More….

Thankfully, the SCOTUS remanded Briscoe (pdf) for further proceedings “not inconsistent with” the Melendez-Diaz opinion (pdf).

1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”

Upcoming Criminal Justice Issues in the SCOTUS

The following cases on the January argument calendar for the Supreme Court of the United States are of interest to criminal law practitioners.

Mon., Jan. 11:

Briscoe v. Virginia (07-11191) — Scope of crime lab analysts’ role in a criminal trial; sequel to Melendez-Diaz v. Massachusetts, on Sixth Amendment Confrontation Clause rights. The Melendez-Diaz case, which was decided earlier this year, requires the prosecution, when it presents a lab report as evidence in a criminal trial, to make the analyst who prepared it available for cross-examination by defense counsel. Sadly, the 5-4 decision may already be in jeopardy. More….

Tue., Jan. 12:

U.S. v. Comstock (08-1224) — Constitutionality of court-ordered civil commitment for federal convicts who are at the end of their sentences and people who have been found mentally incompetent to stand trial when deemed to be “sexually dangerous.”

1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”

Case of Note: Pottawattamie County, IA v. McGhee (SCOTUS)

On November 4, 2009, the U.S. Supreme Court will hear oral arguments in Pottawattamie County, IA v. McGhee, which addresses the extent to which prosecutors are immune from civil liability for egregious misconduct such as coercing false testimony from witnesses. Both the trial and appellate courts disagreed with prosecutors’ argument that the doctrine of absolute immunity should protect prosecutors from liability for such conduct.

11/4/09 Update. One of the prosecutors’ arguments in the Pottawattamie County case is that there is “no freestanding constitutional right not to be framed. ” Well, there ought to be.

11/11/09 Update. Here’s a link for the transcript of oral arguments (PDF). (Also added “case summaries” and added to the “additional coverage” list below.)

Case Summaries: (1) SCOTUSwiki, (2) LII / Legal Information Institute.

Additional Coverage (alphabetically by publication)

1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”

Case of Note: State of Texas v. Bennie Fuelberg

10/9/09 [11/22/09: Added Chris Gunter’s name and bio link]. The Pedernales Electric Cooperative case has been going on for a while but a new issue has come up that caught my attention. In the criminal case against former PEC executive Bennie Fuelberg, the AG’s office is trying to get Fuelberg’s attorney, Chris Gunter, disqualified, claiming that his previous representation of the PEC, as the alleged victim, amounts to representation of an opposing party. For more, see this Statesman article.

The applicable rule is counterintuitive to many people but it’s well-established that, in a criminal cases, the alleged victim is not a party to the lawsuit. Rather, the parties are the State of Texas and the accused. Nonetheless, the AG’s office would like the court to find the opposite in this particular context.

I haven’t had cause to research the issue but I’m skeptical of the AG’s position. Furthermore, I suspect that such an exception would open up a loophole that would be contrary to the interests of the State and alleged victims in general.

11/22/09 Update.  A visiting judge rejected the state’s request to have Bennie Fuelberg’s attorney disqualified. See this Statesman article for more.

1/29/10 Revision.
Changed category from “Cases of Note” to “Case Law.”

Case of Note: Ivey v. State (CCA)

Ivey v. State, which was originally litigated in our very own Travis County Court at Law No. 5, and handed down yesterday by the Court of Criminal Appeals, says that a judge can put a defendant on probation even if the defendant doesn’t want it and the jury denies it:

“We hold that a trial court may place an eligible defendant on community supervision even if the defendant has elected to have his punishment assessed by the jury and the jury does not recommend it.” Here’s the opinion.

Personally, I’ve always thought that jail or prison time is kind of like cash when it comes to a defendant’s debt to society. Of course, the judge can’t force Ivey to actually obey the terms and conditions of probation. If he chooses not to, it’ll be interesting to see what the judge has to say at the revocation hearing.

1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”

Case of Note: Texas v. Rhine (CCA)

Texas v. Rhine, which was argued yesterday before the Court of Criminal Appeals, is a case worth following. The appellant was charged with criminal penalties under administrative code promulgated by the Texas Commission on Environmental Quality. He argued that the provision is void as an unconstitutional delegation of authority by the legislature. If he were to win, it could have far-reaching ramifications for drug laws, some of which rely on a similar delegation of authority authorized under the Texas Controlled Substances Act.

9/23/09 Update. The Court of Criminal Appeals handed down its decision today, holding that, because the legislature “declared a policy and set standards and limitations on the authority delegated to TCEQ that are capable of reasonable application, provide guidance, and limit discretion, it has not unconstitutionally delegated to TCEQ authority more ‘properly attached to’ the legislature and, therefore, there is no violation of the separation of powers principle.” Nice try, Mr. Rhine. Better luck next time.

1/29/10 Revision. Changed category from “Cases of Note” to “Case Law.”

“I Want A Lawyer” Actually Means Something

To paraphrase Jon Stewart, if you apply your principles only when it’s convenient, then they’re not really your principles–they’re more like hobbies.  Allowing the police to ignore the law has the added danger of eroding our civil liberties and making us vulnerable to abuses of power.

Texas courts sometimes find it very, very inconvenient to apply certain constitutional principles requiring them to throw out evidence when the police break the law to obtain it.  That’s especially true if the evidence is, say, the confession of a killer. So I was actually a little surprised earlier this week when the Texas Court of Criminal Appeals agreed with a trial court’s decision to throw out a suspected killer’s videotaped confession because it was obtained in violation of his right to counsel (Texas v. Milton Wayne Gobert).

The law says that the police have to stop questioning a suspect when he asks for a lawyer. To keep the police from ignoring the law, the exclusionary rule requires courts to throw out illegally obtained evidence. Thus, when the police obtain a confession by continuing to interrogate a suspect after he’s invoked his right to counsel, the confession is inadmissible.

Comments to the Statesman’s coverage of the decision show that some folks want the confession to come in despite the fact that the police broke the law to obtain it. But making an exception just because we think a person is guilty and are offended by the crime he’s accused of would set a dangerous precedent. Next stop on this slippery slope is a place where a coerced “confession” is perfectly acceptable and more innocent people are going to prison.

I’m guessing this decision was as painful to make as it was correct. Kudos to Judge Bob Perkins for making the right decision in the first place, and to the Court of Criminal Appeals for upholding it.

1/29/10 Revision.
Changed category from “Cases of Note” to “Case Law.”