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." |