Discovering he can't get basic info, Virginia attorney goes to extremes
August 25, 2000
James Connell III has handled dozens of cases at the Fairfax County, Va., Public Defenders Office, but he has seen only two police reports.
Neither was provided by the commonwealth attorney's office.
That's because Virginia law allows Fairfax Commonwealth Attorney Robert Horan and his assistants to withhold from the defense any information, including police reports, that prosecutors do not plan to use in their case.
While federal courts and many other jurisdictions require prosecutors to turn over police reports and other discoverable evidence, commonwealth attorneys in Virginia are pretty much setting their own policies on what they show the other side. And Horan's policy, like that in neighboring Loudoun County, Va., is to give them as little as possible.
Horan did not return phone calls for this article, although other prosecutors say he is well within the law. But Connell says Horan's strict interpretation of the Virginia Code has made it nearly impossible to defend clients properly at trial or advise them on how to proceed.
The policy has also driven Connell to an extreme measure in an effort to defend a current client facing carjacking charges: He is trying to use Virginia's Freedom of Information Act -- a law designed to give the public access to the workings of government -- to get hold of the police report.
That effort has failed thus far and is now pending before the Virginia Supreme Court. Meanwhile, the carjacking case has twice gone to trial without a verdict and appears to be headed that way again.
Connell is not the only Northern Virginia defense attorney who believes he's operating at a disadvantage. Loudoun County Assistant Public Defender Bonnie Hoffman says the effect of the policy is devastating to her clients.
"It results in cases being tried that wouldn't have been," Hoffman says. "You have to know what evidence is out there to advise clients intelligently."
Connell's fight over the police report began with a March 21 incident at an Exxon Station in Reston, Va. According to testimony from alleged victim Mary Carson, Ahmed Shireh walked up to the pump where she was filling her tank, removed the nozzle, and entered her car.
Then, while Shireh tried to start the engine, Carson says she ran around to the passenger side to grab her purse. An unidentified passerby who saw the incident began to yell. Shireh got out of the unmoved car and walked away. He was picked up by police soon afterward.
In April, while preparing for trial, Connell requested the police reports under the Freedom of Information Act, which generally compels the commonwealth's "public" bodies to provide information to citizens. Fairfax Assistant Commonwealth Attorney Andrew Kersey refused, and Connell filed suit to force him to give up the report.
In court, Connell argued that Horan's office fell under the law because it's an agency of the commonwealth and supported wholly by public funds.
In his briefs before Fairfax County Circuit Judge Jane Roush, Kersey pointed out that Virginia law compels only the release of "criminal incident information," defined as "a general description of the criminal activity reported, the date and general location ..., the identity of the investigating officer, and a general description of any injuries suffered or property damaged or stolen."
The prosecutor also wrote that "the commonwealth's attorney is clearly not a legislative body or a board or a bureau or a commission or a district or agency."
He continued, "A commonwealth attorney is a constitutional officer, and the General Assembly did not include constitutional officers in the FOIA definition of a 'public body.' "
Roush sided with Kersey. In an opinion issued in June, she wrote that while every person paid with public funds is a member of a public body, Connell's reading was "too broad and facile a reading of FOIA."
To be considered a public body, she wrote, the organization must hold public meetings, alert the public, take minutes, and other things typically allowed to give the maximum access to the public.
Meanwhile, Shireh's first trial ended in a mistrial because of prosecutorial error during the closing argument. The second trial ended in a hung jury earlier this month. The case will go to trial again in early September, Connell says.
If Shireh is convicted of carjacking, he faces 15 years to life in prison. If he were convicted of a lesser charge, grand larceny, he would face a sentence of no more than 10 years.
Connell says the key to the case is Carson's allegation that she saw Shireh twice reach for his waistband as though he was carrying a weapon. While he's now seen Carson testify to that effect, he was not aware of her allegations earlier because he had not seen the police report.
"The entire case rests on these two gestures," Connell says. "It's important the jury knows how the incident was described that night."
"It's the weakest possible carjacking case I've ever seen," Connell continues. "There were no verbal threats made, and the car was never taken."
While Connell prepares for the third trial, he also waits for the Virginia Supreme Court to rule on his appeal of the FOIA ruling. Fairfax attorney Michael Devine is representing Connell, while Jack Gould, also of Fairfax, is Kersey's counsel. The court is in recess until September and has not set a date to take up the case.
FIGURING OUT FOIA'S ROLE
Chip Woodrum, a member of Virginia's House of Delegates and chair of the Freedom of Information Advisory Council, says he believes that defense attorneys should have access to police reports. But he disagrees with Connell's effort to demand it from prosecutors under FOIA.
"The Freedom of Information Act is designed to make sure the citizenry have access to the political process and so that the government receives their full input," Woodrum says. "Although there are some overlaps, it is not designed to be a substitute for discovery in litigation."
In at least one neighboring county, however, Connell would not have needed to go that far.
Alexandria Commonwealth Attorney Randy Sengel says he has an open discovery policy where defense attorneys are given police reports if requested. If the report contains a confidential informant or a witness who has asked to remain anonymous, the names will be blocked out.
Sengel, who took over the office in 1997 after 18 years as an assistant, says showing cards early in a case often results in plea agreements. "The more a defense attorney knows, the more likely [a case] will be successfully resolved," he says.
However, even with the office's open policy, there are times when the reports must be fully or partially withheld.
"The dividing line would be how complicated the case is," he says. "When there's a lot of material or you run into a witness who only talks on the condition of confidentiality, it becomes an issue."
As in other jurisdictions that allow access to police reports, commonwealth attorneys reserve the right to black out information on the reports or withhold parts of the file.
Arlington County, Va.'s discovery policy lies somewhere between those in Fairfax and Alexandria.
Arlington Commonwealth Attorney Richard Trodden says, "Mr. Horan plays it straight and by the rules." Trodden adds that he allows Arlington defense attorneys to view police reports, although they can't make copies.
"We tell the defense attorney when we are holding evidence back, and it's never anything they are entitled to," Trodden says. "If you have a smoking gun, you're not going to let anyone know if you don't have to."
Trodden recalls prosecuting one drug dealer who had a letter from a confederate in prison who explained how to lie on the stand. When he was arrested, the letter was seized and withheld by the prosecution until after the defendant took the stand. Then Trodden used the letter to undermine the defendant's testimony.
"It was dynamite," Trodden says. "And there was some howling by the defense about that."
Over in Loudoun County, Commonwealth Attorney Richard Anderson says his office used to have an open discovery policy, but he now subscribes to Horan's theory.
"Defense attorneys complained that documents weren't there that should have been and there wasn't enough accountability," he says. "It needed to be more defined. Now I know what I've given them, and what is and isn't in the file."
He also says Connell's FOIA case should be turned away. "If the Freedom of Information Act request was granted," he says, "you wouldn't need any discovery rules."