in Re Susan Jacob

ACCEPTED
01-18-00419-CR
01-18-00419-CR
Cause No. ____________ FIRST COURT OF APPEALS
HOUSTON, TEXAS
From the 405th District Court of Galveston County, Texas 5/24/2018 10:53 PM
CHRISTOPHER PRINE
CLERK
In the ___ Court of Appeals
In re Kristie L. Walsdorf, Relator
Houston, Texas
Petition for Writ of Mandamus
FILED IN
And 1st COURT OF APPEALS
HOUSTON, TEXAS
Brief in Support of the Petition 5/24/2018 10:53:13 PM
CHRISTOPHER A. PRINE
Clerk
Identity of Parties and Counsel
Relator is Kristie L. Walsdorf, counsel for Susan Nicole Jacob, who is
one of the two real parties in interests. Relator is represented by Mark
W. Bennett of Bennett & Bennett, 917 Franklin Street, Fourth Floor,
Houston, Texas 77002.
The other real party in interest is the State of Texas, represented
by Galveston County District Attorney Jack Roady, 600 59th Street,
Suite 1001, Galveston, Texas 77551.
Respondent is the Honorable Michelle Slaughter, Judge of the
405th District Court in Galveston County, Texas.
Table of Contents
Identity of Parties and Counsel................................. 1
Table of Contents ................................................... 1
Index of Authorities ..............................................3
Statement of the Case ..............................................3
Statement of Jurisdiction........................................ 4
Issue Presented ...................................................... 4
Statement of Facts ................................................. 4
Argument .............................................................. 4
Relief Sought ....................................................... 4
Brief in Support of the Petition ................................ 4
Standard ............................................................. 5
The Record .......................................................... 5
Clear Right to Relief............................................. 5
Prior restraints are disfavored. ........................... 6
The Davenport standard is the correct
threshold standard.............................................. 7
Public policy disfavors this prior restraint..............8
The State’s rationale does not hold up. ...................8
No Adequate Remedy ............................................ 10
Conclusion .......................................................... 10
Prayer ................................................................. 11
Certification ........................................................ 11
Certificate of Service ............................................ 12
Appendices ........................................................... 13
Appendix A: Certified or Sworn Copies .................... 13
Appendix A1: Certified Copy of Protective Order .... 13
Appendix A2: Certified Copy of State’s Motion
for Protective Order ......................................... 16
Appendix A3: Reporter’s Record............................ 19
Appendix B: [Intentionally Left Blank] ................... 36
Appendix C: Text of Law (Other than Case Law)
on Which Argument is Based.................................. 37
Section 22.221(b) of the Texas Government
Code, Writ Power .............................................. 37
2
Selected Portions of Texas Disciplinary Rule of
Professional Conduct 3.09, Special Duties of a
Prosecutor, and Comments Thereto ...................... 37
Index of Authorities
CASES
Alexander v. United States, 509 U.S. 544 (1993) ...............................6
Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) (orig. proceeding) ... 6, 7
In re Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (orig. proceeding) ................................................... 7
In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, no pet.)
(orig. proceeding) .........................................................................8
In re King, 293 S.W.3d. 376 (Tex. App.—Amarillo 2009, no pet.)
(orig. proceeding) ......................................................................... 7
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) ..........................6
San Antonio Express–News v. Roman, 861 S.W.2d 265 (Tex.
App.—San Antonio 1993, orig. proceeding) ............................. 8, 10
STATUTES
Tex. Govt. Code § 22.221(b)(1) ...................................................... 4
OTHER AUTHORITIES
Tex. R. Discip. Proc. 3.09(d) .............................................................9
Statement of the Case
3
The underlying proceeding is a criminal prosecution.
Respondent is the Honorable Michelle Slaughter, Judge of the
405th District Court in Galveston County, Texas.
Relator seeks relief from Respondent’s having signed a Protective
Order comprising a prior restraint on Relator’s speech under article 1,
section 8 of the Texas Constitution.
Statement of Jurisdiction
Galveston County is a county in this Court’s district. This Court has
jurisdiction under section 22.221(b)(1) of the Texas Government
Code. Tex. Govt. Code § 22.221(b)(1).
Issue Presented
Is the Protective Order a void prior restraint?
Statement of Facts
On June 26, 2017 Real Party in Interest the State of Texas filed a
Motion for Protective Order. On October 2, 2017 Respondent entered
the Protective Order, restricting Relator’s speech.
Argument
Relief Sought
Relator files this Petition for Writ of Mandamus to ask this Court to
grant the writ and order Respondent to vacate its Protective Order.
Brief in Support of the Petition
4
Standard
To demonstrate the right to mandamus relief, Relator must establish
that Respondent clearly abused her discretion, and that Relator has no
adequate remedy by appeal.
The Record
The record comprises:
• The State’s Motion for Protective Order;
• The Protective Order; and
• The Reporter’s Record from October 2, 2017.
The Protective Order provides:
[1] The Defendant and counsel shall be admonished that the
purpose of discovery is case preparation and that sensitive
information provided within the scope of the Protective Order is to
be used only for that purpose;
[2] Information disclosed under the Protective Order shall be used
only by the defendant, the attorney representing the defendant, or
an investigator, expert, consulting legal counsel, or other agent of
the attorney representing the defendant solely for purposes of this
action;
[3] The Defendant and counsel for the defense shall not release or
communicate the information to any other outside parties.
Clear Right to Relief
This Protective Order is a prior restraint on Relator’s speech.
5
A prior restraint on speech is an order “forbidding certain
communications when issued in advance of the time that such
communications are to occur.” Alexander v. United States, 509 U.S.
544, 550 (1993). “[P]rior restraints on speech and publication are the
most serious and the least tolerable infringement on First Amendment
rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).
Relator has a clear right to relief because the prior restraint
violates article I, section 8 of the Texas Constitution, which “provides
greater rights of free expression than its federal equivalent.” Davenport
v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992) (orig. proceeding).
Prior restraints are disfavored.
Prior restraints on speech are presumptively unconstitutional. See id.
In the context of a prior restraint affecting attorneys and parties to a
case:
… federal courts consider three factors. First, the court must
consider whether the requested order is narrowly tailored. Next, the
court determines whether a gag order is the least restrictive means,
or if less burdensome alternatives would achieve the same
governmental objective. Finally, the court applies the “threshold
standard for imposing a prior restraint.
6
In re Benton, 238 S.W.3d 587, 593 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (orig. proceeding) (internal quotation marks and
citations omitted).
The Davenport standard is the correct threshold
standard.
In Davenport, the Texas Supreme Court concluded that a gag order in
a civil proceeding will withstand state constitutional scrutiny only if
there are specific findings supported by evidence that:
(1) an imminent and irreparable harm to the judicial process will
deprive litigants of a just resolution of their dispute, and
(2) the judicial action represents the least restrictive means to
prevent that harm.
Davenport v. Garcia, 834 S.W.2d at 10.
The trial court made no such findings, and there is no evidence
that the Protective Order is necessary to prevent an imminent and
irreparable harm to the judicial process that will deprive litigants of a
just resolution of their dispute.
While Davenport involved a civil case, the Amarillo, Waco and
San Antonio Courts of Appeals have applied the Davenport test to
prior restraints in criminal proceedings. In re King, 293 S.W.3d. 376
(Tex. App.—Amarillo 2009, no pet.) (orig. proceeding); In re Graves,
217 S.W.3d 744, 753 (Tex. App.—Waco 2007, no pet.) (orig.
7
proceeding); San Antonio Express–News v. Roman, 861 S.W.2d 265, 268
(Tex. App.—San Antonio 1993, orig. proceeding).1
Public policy disfavors this prior restraint.
The State in its Motion for Protective Order describes the records
subject to the Protective Order:
The State is producing records regarding a law enforcement officer
and/or state employee, in accordance with the State’s duty to
disclose Brady / Giglio / Morton evidence.
Motion for Protective Order. The due process clause of the United
States Constitution requires a prosecutor to seek out and disclose to
the defense Brady and Giglio evidence. This is an absolute rule, and
disclosure may not be conditioned on a prior restraint barring the
defense from discussing such evidence.
The State’s rationale does not hold up.
The State in its Motion for Protective Order relied solely on Rule 3.09(d)
of the Texas Disciplinary Rules of Professional Conduct:
1
The Fourteenth Court of Appeals in In re Benton discussed the various threshold
standards, and declined to decide which applies to a prior restraint on counsel in a
criminal cases because the prior restraint in that case failed the least stringent test. In
re Benton, 238 S.W.3d 587, 597(Tex. App.—Houston [14th Dist.] 2007, no pet.).
The Davenport test is the only one approved under the more-stringent Texas
Constitution. Here, as in Benton, though, whichever standard applies, the prior
restraint in this case fails to satisfy it.
8
Texas Rules of Professional Conduct § 3.09(d) requires that a
prosecutor “make timely disclosure to the defense of all evidence or
information …” exculpatory or mitigating “… except when the
prosecutor is relieved of this responsibility by a protective order of
the tribunal." Comment 5 of Rule 3 explains the exception. “The
exception in paragraph (d) recognizes that a prosecutor may seek an
appropriate protective order from the tribunal if disclosure of
information to the defense could result in substantial harm to an
individual or to the public interest.” Texas Rules of Professional
Conduct §3.09, Comment 5. The State requests that the Court
enter a Protective Order in this case with the following provisions:
Motion for Protective Order.
Rule 3.09(d) is an ethical rule, not a rule of criminal procedure. It
does not govern the trial court, but creates disciplinary liability for a
prosecutor’s failure to comply with his due-process obligations to
disclose Brady and Giglio evidence. The exception in Rule 3.09(d)
relieves a prosecutor of disciplinary liability under Rule 3.09(d) for
failing to disclose Brady and Giglio evidence in limited circumstances.
Tex. R. Discip. Proc. 3.09(d).
The “protective order” referenced in Rule 3.09(d) is not an order
gagging another lawyer (such as Relator) but a protective order
9
relieving the prosecutor of his ethical duty to disclose Brady and Giglio
information.2
Under the disciplinary rule the prosecutor is subject to discipline
if he does not either a) disclose Brady; or b) get a protective order
relieving him of that responsibility. “Disclose Brady and Giglio
material subject to a prior restraint on the defense” is not an option
created by Rule 3.09(d).
No Adequate Remedy
Mandamus is the appropriate method by which to challenge a gag
order. San Antonio Express–News v. Roman, 861 S.W.2d at 266. Because
no appealable order has been entered, Relator has no adequate remedy
by appeal. See id. at 267.
Conclusion
Because the Protective Order is a prior restraint, it is presumptively
unconstitutional. Because there are no specific findings supported by
evidence either that an imminent and irreparable harm to the judicial
process will deprive litigants of a just resolution of their dispute, or
2
Even if a prosecutor got a protective order relieving him of his Rule 3.09(d)
responsibility, he would still have a Constitutional duty under Brady and its progeny,
with which Rule 3.09(d) has nothing to do.
10
that the judicial action represents the least restrictive means to prevent
that harm, the Protective Order does not meet the standard of
Davenport v. Garcia, it is void. Relator clearly abused his discretion in
entering this protective order.
Prayer
For these reasons, Relator asks that the Court order the clerk to file
this Petition for Writ of Mandamus and set it for hearing; order the clerk
of the court to give notice to all parties of the filing of the petition and
the hearing date; and, following the hearing, issue a Writ of Mandamus
directed to Respondent to vacate the Protective Order, and grant any
other relief to which Relator may be entitled.
Certification
I have reviewed the petition and concluded that every factual
statement in the petition is supported by competent evidence included
in the appendix or record.
___________________________
Mark W. Bennett
11
Certificate of Service
A copy of this petition will be delivered to attorney for the State by the
efiling system.
___________________________
Mark W. Bennett
12
Appendices
Appendix A: Certified or Sworn Copies
Appendix A1: Certified Copy of Protective Order
13
Appendix A2: Certified Copy of State’s Motion for
Protective Order
16
Appendix A3: Reporter’s Record
19
1
Motion October 2, 2017
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 14-CR-1986 and 15-CR-0860
3 THE STATE OF TEXAS ) IN THE DISTRICT COURT
)
4 vs. ) GALVESTON COUNTY, TEXAS
)
5 SUSAN NICOLE JACOB ) 405th JUDICIAL DISTRICT
6
7 DEFENDANT'S OBJECTIONS TO STATE'S MOTION FOR
PROTECTIVE ORDER AND MOTION FOR DISCLOSURE OF
8 WITHHELD INFORMATION AND/OR SANCTIONS
9
10
11 On the 2nd day of October, 2017, the following
12 proceedings came on to be held in the above-entitled
13 and numbered cause before the Honorable Michelle
14 Slaughter, Judge Presiding, held in Galveston County,
15 Texas.
16 Proceedings reported by computerized stenotype
17 machine.
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19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
2
Motion October 2, 2017
1 APPEARANCES
2 ADAM POOLE
SBOT NO. 24042968
3 Chief Assistant Criminal District Attorney
Galveston County District Attorney's Office
4 600 59th Street, Suite 1001
Galveston, Texas 77551
5 Telephone: 409.766.2344
Fax: 409.766.2290
6 E-mail: adam.poole@co.galveston.tx.us
Attorney for Prosecution, The State of Texas
7
KRISTIE WALSDORF
8 SBOT NO. 24076145
Walsdorf Law Firm
9 305 21st Street, Suite #247
Galveston, Texas 77550
10 Telephone: 409.766.7330
Fax: 409.750.7131
11 E-mail: kwalsdorf@walsdorflaw.com
Attorney for Defendant, Susan Nicole Jacob
12
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KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
3
Motion October 2, 2017
1
2 CHRONOLOGICAL INDEX
3 DEFENDANT'S OBJECTIONS TO STATE'S MOTION FOR
PROTECTIVE ORDER AND MOTION FOR DISCLOSURE OF
4 WITHHELD INFORMATION AND/OR SANCTIONS
5 October 2, 2017
6 Page Vol.
7 Adjournment ....................................16 1
8 Reporter's Certificate .........................17 1
9
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KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
4
Motion October 2, 2017
1 THE COURT: Let's go on the record in
2 14-CR-1986, 15-CR-0860, State of Texas vs. Susan
3 Nicole Jacob.
4 Let's have appearance of counsel for
5 the record?
6 MR. POOLE: Adam Poole for the State.
7 MS. WALSDORF: Kristie Walsdorf for
8 the defense.
9 THE COURT: Is this Susan Jacob?
10 MS. WALSDORF: Yes, ma'am.
11 THE COURT: Okay. All right. We are
12 here on the, in each case, on the State's Motion to
13 Adjudicate Guilt and Revoke Community Supervision.
14 Ms. Jacob, could you please stand up
15 for a moment?
16 MS. WALSDORF: Your Honor, if I may
17 clarify?
18 THE COURT: Sure.
19 MS. WALSDORF: We're only here on the
20 protective order issue.
21 THE COURT: Only on protective order?
22 I thought this was an MRP.
23 MS. WALSDORF: No, no.
24 MR. POOLE: They were Motion to Revoke
25 but --
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
5
Motion October 2, 2017
1 MS. WALSDORF: We're just here today
2 for the protective order.
3 THE COURT: So we're here then on
4 these cases regarding some Brady issues? So do you
5 want to proceed, Ms. Walsdorf?
6 MS. WALSDORF: Yes, Your Honor. I
7 went ahead -- we were here while Judge Garner was on
8 the bench for you. At that time the State said they
9 had some Brady information. I had filed for a
10 Brady -- or I filed for discovery -- I filed for
11 discovery in June, on June 12th. And in court the
12 State orally said they had some Brady information
13 regarding an Officer Coolly. They did not file for a
14 protective order. I was simply told orally they had
15 a protective order, and they did give me a copy of
16 it. Then they gave me a copy of the actual order.
17 We had a little chitchat in the back
18 with Judge Garner. Judge Garner said, Wait until
19 Judge Slaughter is here. So my motion stands. I
20 went ahead and laid out all the arguments. My
21 biggest issues is this hasn't even been filed by the
22 State. So really I'm kind of just going blind. What
23 I know is in the other hearings that I've had in
24 these cases, I have called the First Assistant, Kevin
25 Petroff, to the stand who says, as a general policy,
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
6
Motion October 2, 2017
1 their office will not disclose Brady information
2 until the case is set for final resolution, which in
3 some cases can take months. But his testimony is
4 that they wanted a blanket protective order, although
5 he understood that the Michael Morton says they shall
6 disclose, there's indeed a rule for the prosecutors
7 to follow the discovery rules, they shall disclose,
8 that they wanted the Courts first to order defense
9 attorneys to comply with that protective order, even
10 when the State was not presenting what they have to
11 present under the comments. They are allowed to get
12 protective orders when they can show there is
13 substantial harm to an individual or to the public.
14 In this case the State has not put
15 forth anything in the motion stating there is any
16 sort of a public harm or any harm to an individual,
17 let alone it being substantial harm.
18 And I went ahead and put in the motion
19 the official transcript where Mr. Petroff testified
20 that it was not -- it was their policy to induce the
21 local police agency to give them Brady information in
22 hopes they would continue to do so. If the State
23 were to step out and ask for these protective orders
24 every time something came up only with the police
25 officer's personnel file.
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
7
Motion October 2, 2017
1 I can only assume that is what this
2 is. Again, I haven't been given any information
3 about what this Brady information is. I'm assuming
4 it must be a personnel file because, according to the
5 first assistant, that's what they asked for. To my
6 knowledge they haven't asked for protective orders in
7 any other cases regarding any other individuals. And
8 I know that the -- in addition to the fact I don't
9 have any of this information, the State's kind of
10 taking on a dual role in that they're creating a
11 conflict of interest.
12 The police departments themselves,
13 they have their own attorneys. And in this case
14 nobody has excepted, nobody has objected. We don't
15 know they even have an issue with this. State has
16 taken it upon themselves to say, on one hand we're
17 going to prosecute police officers when they do
18 something wrong. On the other hand we're going to
19 jump in and protect their personnel files.
20 So without even having the police
21 agency's attorneys come in, the State's kind of
22 taking on a dual role, creating a conflict of
23 interest. I think the threshold issue is; one, the
24 State hasn't filed anything in the motion. They
25 haven't done what they're supposed to do and stated
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
8
Motion October 2, 2017
1 any sort of substantial harm, let alone any harm.
2 Again, we're just kind of flying blind that the DA's
3 Office policy is to bind defense attorneys with the
4 carrot being -- I say this because it was on the
5 report and I want to point that out in the transcript
6 that I provided that was certified, that the DA's
7 office wants the ability to penalize defense
8 attorneys for putting any of this information out in
9 the public, even though Michael Morton does not --
10 even Michael Morton says you have to disclose this,
11 there are no specific provisions in there stating
12 defense attorneys can't use this information for the
13 betterment of their client and their case.
14 At one point Mr. Petroff testified
15 that was a fear that some of these personnel files
16 might be put on Facebook. As you know, defense
17 attorneys are bound by our ethical duties. We're not
18 allowed to put anything on Facebook. Nobody has ever
19 accused me have putting something on Facebook. That
20 is not what I would do with the information. I would
21 use that as I'm allowed to do to work the case.
22 At the very least, I've got the --
23 should have the ability to see what it is and discuss
24 it with my client. I pretty much have been prevented
25 from working on her case because we haven't been
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
9
Motion October 2, 2017
1 provided this information.
2 Again, there are very specific means
3 for the State to get these protective orders. Most
4 of the case protective orders have to do with
5 children or child witnesses. In this case they're
6 specifically asking them for police officers.
7 Now, police officers are doing
8 something that needs to be protected, well, then the
9 State needs to show where I'm going to do something
10 to harm them substantially. They simply haven't done
11 that.
12 Michael Morton -- what Michael Morton
13 did in ethical rules, what they've done is they have
14 removed the gatekeeping process. It is no longer up
15 to the DAs to say what they shall give to the defense
16 attorneys. It's no longer, with all due respect,
17 Your Honor, there is no longer gatekeeping function
18 for the judiciary that's been taken out.
19 The rule is you just have to hand this
20 information over. And the few times I've actually
21 had to litigate these, judges have agreed with me so
22 far the cases where I've been given the information,
23 I will state on the record, I've never put any of
24 this information on the Facebook. I have not shared
25 it with the public. I have not brought it to the
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
10
Motion October 2, 2017
1 media. I have done no such thing with it. And I
2 don't think I've even been accused of doing that, but
3 at this point they haven't even said what harm, let
4 alone anything substantial, would come from them.
5 Just provide me the information I've asked for and
6 they're obligated to give me.
7 THE COURT: Response?
8 MR. POOLE: Judge, I will agree on one
9 thing, and that is I think initially this came to the
10 Court a little differently than most because when it
11 was first presented it was Judge Garner on the bench.
12 He basically said, I don't want to sign this
13 document. I just want to let Judge Slaughter hear it
14 later. Laimplet that's why the motion hasn't been
15 filed.
16 Typical procedure is come -- we come
17 up with the records and the motion for protective
18 order. It all gets done, then and there. We have
19 set for a hearing. I know you're well aware what the
20 protective order motion states, and they do state the
21 purpose behind them is to prevent substantial harm,
22 if these documents, which are confidential, marked
23 privileged and definitely sensitive material, if they
24 were released to the public in anyway.
25 So I very strongly disagree with what
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
11
Motion October 2, 2017
1 Ms. Walsdorf has said repeatedly here and repeatedly
2 in her motion where she says that we've indicated to
3 her we have Brady. Brady and this material was
4 Brady. She hasn't seen it so she has no idea if it's
5 Brady. I couldn't disagree more that it's Brady.
6 You look at the officer in question Officer Cooley,
7 he had no responsibility in one case. He was present
8 at the arrest of the other. He had no interaction
9 with the defendant whatsoever, nothing to do with the
10 drugs -- I can't think of how any of these records
11 could relate to being impeachable or anything like
12 that.
13 And we're a step removed from that
14 because this is an MRP. So the underlying case has
15 already been disposed of. Also the records regarding
16 Officer Cooley, we're being overly inclusive with
17 what we're turning over. Their allegations not only
18 have not been substantiated but actually disproven.
19 Yet we're still turning it over. That's our policy.
20 We're overly inclusive even if it's
21 not Brady, we still turn it over. We simply request
22 a protective order. The language of the protective
23 order comes directly out of 39.14 in terms of what it
24 prevents them from doing. They can only uses it for
25 criminal purposes for that case. It's just that
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
12
Motion October 2, 2017
1 39.14 doesn't describe any result or remedy if they
2 were violated. That's what the protective order is
3 for. The Court could amend it and write it in a
4 different penalty or no penalty at all. It's
5 entirely up to the Court. We're going to give the
6 records over regardless of whether a protective order
7 is signed and regardless of what it says. But we're
8 going to keep continuing to ask for that protective
9 order because if they were to subpoena these records
10 themselves, then you would have the attorneys for
11 these individual agencies eation coming in and they
12 would be requesting a protective order. We're
13 getting to this same places either way. This is
14 simply a biproduct of our process of being overly
15 inclusive, turning the records over regardless of
16 requesting a protective order.
17 THE COURT: Can you tell me what's in
18 those records that would substantially harm the
19 individual or be against public interest or a problem
20 in any way, shape or form?
21 MR. POOLE: Yes, Your Honor. So in
22 regards to this particular officer, it's a little bit
23 complicated because one of the investigations sort of
24 shoehorned in a lot of ciliary documents such as the
25 officer's divorce decree. I mean, it's pages and
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
13
Motion October 2, 2017
1 pages of records that are not related to anything.
2 It's like various employee
3 information, internal memos. There is also a lot of
4 proprietary information in here. In addition to
5 that, even under the additional section we always
6 turn over anyway, there are, for example, complaints
7 that were not substantiated about a dating
8 relationship he had that turned out not be in any
9 violation of any kind of policy. It's just personal
10 information. Like I said, we still want to turn it
11 over. We intend to turn it over regardless. We're
12 just asking there be a protective order in place.
13 THE COURT: Ms. Walsdorf?
14 MS. WALSDORF: Well, Your Honor, I
15 don't think it matters whether it's Brady -- I'm
16 sorry. I don't think it matters whether it's Brady
17 information or not. If it's discoverable material,
18 it does need to be turned over. Again, when I said I
19 was flying blind, it was simply an oral conversation
20 we had in chambers with the Judge Garner back in
21 August.
22 So I'm going off of memory because
23 there was nothing filed. Okay? In that respect I do
24 think we still get the information. And it has been
25 litigated before. This was an open records request.
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
14
Motion October 2, 2017
1 We went through the same problems with Judge Neves.
2 In fact that's when the city did make an appearance
3 and said themselves Michael Morton actually changed
4 local rules in there was no more in camera review.
5 It had to be disclosed.
6 So either route we still get this
7 information, but it has been already addressed by
8 Judge Neves when he said, Yeah. I understand.
9 Because I was able to say I've been asking for them
10 under open records at the same time, which is why we
11 had the prosecutor's office and city attorney's
12 office in here testifying about the same issue.
13 In the end, Your Honor, even though
14 these might be sensitive documents, yeah, they're
15 personnel files. They're sensitive, but that does
16 rise to what is needed in order to show substantial
17 harm or harm to the public interest. Just because
18 they might be sensitive does not show I'm going to do
19 something with that information that is going to
20 create harm. Just because I might know something as
21 an attorney doesn't mean that individual, that
22 officer, is going to be harmed by my basic knowledge
23 of that information.
24 THE COURT: All right. Here's what
25 I'm going to do, just given particular facts as I
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
15
Motion
October 2, 2017
1 understand them on this case, I'm going to go ahead
2 and grant the protective order. But, Ms. Walsdorf,
3 of course, you're going to receive this information.
4 If you find something in this information that you
5 believe is Brady or impeachment evidence or some sort
6 of evidence that you believe that you actually need
7 for your client's case, let me know. And then we can
8 have a hearing on that and if I -- I can decide to
9 lift that protective order for that purpose. So --
10 but, of course, protective order is limited and still
11 allows you to utilize the information, receive the
12 information.
13 That's how we'll proceed in this case.
14 Okay?
15 Thank you.
16 Do you have an order?
17 MR. POOLE: Yes, Judge.
18
19
20
21
22
23
24
25
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
16
Motion
October 2, 2017
1 STATE OF TEXAS
2 COUNTY OF Galveston
3 I, Karen S. Bernhardt, Deputy Court Reporter in
4 and for the 405th District Court of Galveston, State
5 of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription
7 of all portions of evidence and other proceedings
8 requested in writing by counsel for the parties to be
9 included in this volume of the Reporter's Record in
10 the above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted, tendered in an offer of
16 proof or offered into evidence.
17 I further certify that the total cost for the
18 preparation of this Reporter's Record is $56.00 and
19 will be paid by Galveston County voucher.
20 WITNESS MY OFFICIAL HAND this the 25th day of
21 October, 2017.
22 /s/Karen S. Bernhardt
Karen S. Bernhardt, CSR 1601
23 Expiration Date: 12/31/18
Deputy Court Reporter, 405th District Court
24 Galveston County, Texas
3901 29th Street No.
25 Texas City, Texas 77590/ Telephone: 713.962.2530
KAREN S. BERNHARDT, C.S.R.
(713) 962-2530
Appendix B: [Intentionally Left Blank]
36
Appendix C: Text of Law (Other than Case Law) on Which
Argument is Based
Section 22.221(b) of the Texas Government Code, Writ
Power
(b) Each court of appeals for a court of appeals district may issue all
writs of mandamus, agreeable to the principles of law regulating those
writs, against :
(1) a judge of a district, statutory county, statutory probate county, or
county court in the court of appeals district;
….
Selected Portions of Texas Disciplinary Rule of
Professional Conduct 3.09, Special Duties of a
Prosecutor, and Comments Thereto
The prosecutor in a criminal case shall:
…
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate the guilt of
the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the
tribunal; ….
37
Comment:
Source and Scope of Obligations
1. A prosecutor has the responsibility to see that justice is done, and
not simply to be an advocate. This responsibility carries with it a
number of specific obligations. [A] prosecutor is obliged to see that the
defendant is accorded procedural justice, that the defendant's guilt is
decided upon the basis of sufficient evidence, and that any sentence
imposed is based on all unprivileged information known to the
prosecutor. See paragraph (d). …. Applicable law may require other
measures by the prosecutor and knowing disregard of those obligations
or a systematic abuse of prosecutorial discretion could constitute a
violation of Rule 8.04.
….
5. The exception in paragraph (d) recognizes that a prosecutor may
seek an appropriate protective order from the tribunal if disclosure of
information to the defense could result in substantial harm to an
individual or to the public interest.
38