WR-80,923-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/21/2015 12:31:21 PM
Accepted 4/21/2015 1:11:20 PM
ABEL ACOSTA
CLERK
EXHIBIT D
Transcript on Motion for Disclosure of
Trial Files
1
1 REPORTER'S RECORD
2 VOLUME 3 OF _____ VOLUMES
3 TRIAL COURT CAUSE NO. W-F09-00409-Y
4 ) IN THE CRIMINAL DISTRICT
)
5 EX PARTE RODERICK HARRIS ) COURT NUMBER 7 OF
)
6 ) DALLAS COUNTY, TEXAS
7
8 _____________________________________________
9 MOTION FOR DISCLOSURE
_____________________________________________
10
11
12 On the 26th day of March, 2015, the following
13 proceedings came on to be heard in the above-titled and
14 numbered cause before the Honorable Elizabeth D. Frizell,
15 Judge Presiding, held in Dallas, Dallas County, Texas.
16 Proceedings reported by computerized stenotype
17 machine.
18
19 VEARNEAS W. FAGGETT, TEXAS CSR #3129
20 Official Court Reporter
21 Criminal District Court No. 7
22 214.739.3906
23
24
25
2
1 A P P E A R A N C E S
2 MS. SHELLY O'BRIEN YEATTS
SBOT NO. 24033487
3 MS. REBECCA OTT
SBOT NO. 24074842
4 MS. JACLYN O'CONNOR LAMBERT
SBOT NO. 24049262
5 Assistant District Attorneys
HONORABLE SUSAN HAWK
6 CRIMINAL DISTRICT ATTORNEY OF DALLAS COUNTY
133 North Riverfront Boulevard
7 Dallas, Texas 75207
Telephone: 214.653.3600
8 Attorneys for State of Texas
9
10 MR. ROBERT ROMIG
SBOT NO. 24060317
11 MR. JEREMY SCHEPERS
SBOT NO. 24084578
12 MR. BRAD D. LEVENSON
SBOT NO. 24073411
13 OFFICE OF CAPITAL WRITS
1700 N. Congress Ave., Ste. 460
14 Austin, Texas 78711
Telephone: 512.463.8522
15 Attorneys for Defendant
16
17
18
19
20
21
22
23
24
25
3
1 I N D E X
2 MARCH 26, 2015 PAGE VOL
3 Proceedings ................................... 5 3
4 Defense Motion for Access to DA file withdrawn. 6 3
5 State Motion for Access to Dr. Reed's report .. 6 3
6 State Motion for Roderick Harris Trial Files .. 23 3
7 Reporter's Certificate ........................ 42 3
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 E X H I B I T I N D E X
2
3 (No exhibits were offered or admitted in this volume)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
1 P R O C E E D I N G S
2 (March 26, 2015)
3 THE COURT: We are on the record in
4 Ex Parte Roderick Harris, Cause Number W-09-00409, and
5 State's attorneys and Defense attorneys are here. If you
6 all would just go from my right to your left and state
7 your names.
8 MS. YEATTS: Shelly Yeatts for the State,
9 Your Honor.
10 MS. OTT: Rebecca Ott for the State.
11 MS. LAMBERT: Jaclyn Lambert for the
12 State.
13 MR. LEVENSON: Brad Levenson from the
14 Office of Capital Writs.
15 MR. ROMIG: Robert Romig from the Office
16 of Capital Writs.
17 MR. SCHEPERS: Jeremy Schepers, Office of
18 Capital Writs.
19 THE COURT: Okay. And I have two motions
20 to consider today. State's Motion for Disclosure of
21 Roderick Harris' trial files as well as the State's
22 Motion for Access to Dr. Christine Reed's psychological
23 evaluation. And, State, you may proceed.
24 MS. YEATTS: Your Honor, for the record,
25 also the Office of Capital Writs previously had a motion
6
1 pending for access to the District Attorney's trial file,
2 and counsel came earlier this week and did review the
3 District Attorney's trial file. So, we'd ask for the
4 record -- they had indicated that they wish to withdraw
5 that motion and ask for them to do that now, Your Honor.
6 MR. SCHEPERS: That's correct. We're
7 happy to withdraw that motion, Your Honor.
8 THE COURT: Okay. That motion is
9 withdrawn. And any other matters we need to take up
10 before we start?
11 MS. YEATTS: No, ma'am.
12 THE COURT: You may proceed.
13 MS. YEATTS: So, first, can we talk about
14 the motion for State's access to Dr. Reed's --
15 Dr. Christine Reed's report.
16 THE COURT: Yes.
17 MS. YEATTS: What happened at trial,
18 Judge, is that defendant had experts who went in and
19 evaluated him prior to trial. One of those experts was
20 Dr. Toni McGarrahan. She conducted a psychological
21 evaluation of the defendant in October of 2011. This
22 trial was May of 2012.
23 The State's position, Your Honor, is that the
24 defendant's speaking to his own experts prior to trial
25 triggers the Lagrone case and triggers the State to have
7
1 its ability to use its examination of the defendant at
2 trial as rebuttal.
3 Prior to trial the State filed a motion under
4 Lagrone for access to the defendant because of his
5 limited Fifth Amendment waiver prior to trial by speaking
6 to his own experts.
7 The judge at the time, Judge Snipes, granted
8 that motion. So the State's expert that we have hired
9 for trial is Dr. Christine Reed, and she went in and
10 evaluated the defendant prior to trial.
11 Under the Court's order, that evaluation was
12 then sealed, and the State did not have access to it.
13 With the intent being if the defendant called experts
14 during trial that he had spoken to or that had evaluated
15 him, the State would have received a copy of Dr. Reed's
16 report. That did not happen. So the State has never had
17 access to her report.
18 In this writ, however, Your Honor, Mr. Harris
19 has relied on the evaluation that Dr. McGarrahan his own
20 expert did prior to trial, and that was a psychological
21 examination.
22 What happened here is that several of the
23 claims in this writ rely on Dr. McGarrahan's testing and
24 rely on her evaluation. The counsel for Office of
25 Capital Writs has used another psychologist,
8
1 Dr. Underhill to take her raw data and generate scores
2 based on that raw data, and Dr. Underhill's scoring of
3 the psychological testing has been utilized and relied on
4 in numerous pending claims. And that includes -- there's
5 several claims of ineffective assistance of counsel based
6 on failure to investigate and present certain evidence in
7 this writ, Your Honor.
8 One of those claims is a fetal alcohol syndrome
9 claim. The allegations are that trial counsel should
10 have investigated and raised and presented evidence of
11 fetal alcohol syndrome at trial.
12 Two of their experts, one psychologist,
13 Dr. Brown and a M.D. Dr. Davies, Dr. Davies' evaluation
14 was just done in December of last year and provided to
15 the State and the Court. Both of those experts are
16 relying on the psychological testing done prior to trial.
17 Also, there's a toxicologist. The issue there
18 is the possible lead exposure in west Dallas. The
19 toxicologist also relies on the psychological evaluation
20 that was done prior to trial.
21 Other experts rely on that information assuming
22 that there's some type of neurological deficits based on
23 the psychological evaluation. Dr. Robinson who does the
24 schools-to-prison pipeline theory, in testimony she's
25 relying on the assumption that there's neurological
9
1 damage based on the psychological done prior to trial and
2 Laura Sovine who was a social worker, she also relies on
3 these conclusions.
4 So we know at this point what Dr. McGarrahan's
5 testing was because Dr. Underhill made a list of those
6 tests and the results. We know that Dr. McGarrahan's
7 testing include an IQ test and also general academic
8 testing, that includes like reading, writing, and math.
9 I don't know, Your Honor, what Dr. Reed's
10 evaluation shows because that's been sealed and never
11 provided to the State. I don't know what testing she
12 did. She was the State's expert at trial. She was our
13 consultant, but she -- in the court order, she did not
14 reveal the results of her testing.
15 So I am in a position, Your Honor, that I had
16 an expert at trial and I now have an expert on my writ
17 who is Dr. Christine Reed, but I don't have access to the
18 evaluation she did of the defendant.
19 So, interestingly, Your Honor, when I called
20 her, I called her and said I don't have a copy of your
21 report, of course, because it was sealed and I'll have to
22 get permission from the Judge to access that report. She
23 indicated that Mr. Romig also was interested in having
24 her report, and he had previously called her during his
25 investigation and asked for the report; and she told him
10
1 that she couldn't provide it to him because it was
2 sealed.
3 So the point, Judge, is that the defendant's
4 Fifth Amendment waiver and speaking to his experts and
5 then relying on that communication in their writ triggers
6 an examination by the State and triggers the State having
7 access to the examination that was previously done by his
8 own expert.
9 The State believes that what the Office of
10 Capital Writs wishes to do at this point is narrow our
11 rebuttal. I believe their position from the
12 communication -- of course, they can explain that to
13 you -- I believe their position is that they want to use
14 Dr. McGarrahan's evaluation now only as to the
15 neuropsychological deficits.
16 So it seems like they're putting the cart
17 before the horse which is a place we've been previously
18 when we've been in front of you, Judge. Because I feel
19 like they want to narrow the scope of the State's
20 rebuttal based on relevancy.
21 But the State's position is they're coming in
22 and they're saying counsel is ineffective because their
23 client had these deficits and these deficits are based on
24 this mental health condition. And they want the State to
25 be limited to talking about the mental health condition
11
1 that's identified by their experts.
2 But the State's position is this is rebuttal
3 and that we can look at the deficits, and those deficits
4 were all talked about at trial. I'm talking about ADHD,
5 learning problems, things of that nature.
6 So the State's position is that we can look at
7 the cause of those deficits. We can look at the etiology
8 of those deficits and we can bring our own experts and
9 explain on our own terms what caused those deficits, what
10 could be the basis of them. We don't think we're limited
11 by their expert's scope and their expert's framing of
12 those issues.
13 I think I'll close at that point with an
14 opportunity for rebuttal, Judge.
15 THE COURT: Okay. Response from the
16 Defense.
17 MR. ROMIG: Thank you, Your Honor. At the
18 start I should mention just for the record that our
19 client Mr. Harris is not in court today and that's with
20 our understanding.
21 At the outset I'd say on this issue we don't
22 disagree in large measure with what the State just said.
23 There's a lot -- by putting into issue during our writ
24 Mr. Harris' neurological deficits, we've certainly opened
25 up the opportunity for the State to rebut that issue.
12
1 Where we disagree with the State is exactly in
2 the limitations of what they're allowed to rebut. It's
3 not so much our request to limit them, but it's what the
4 case law says in Lagrone and Soria from the Court of
5 Criminal Appeals about exactly how broad that waiver of
6 Fifth Amendment protections has been.
7 I have a couple cases to give, Your Honor, that
8 were cited in the State's brief (tendering).
9 THE COURT: Thank you.
10 MR. ROMIG: And I have flagged relevant
11 portions. What the Court of Criminal Appeals has said is
12 that when a defendant initiates and uses a psychiatric
13 examination and presents psychiatric testimony, the
14 defendant then may be compelled to undergo an examination
15 from the State's expert, and the State may present
16 rebuttal testimony of that expert based upon his
17 examination of the defendant. But the Court of Criminal
18 Appeals specifically says that the rebuttal testimony is
19 limited to the issues raised by the Defense expert.
20 So to give an example, Your Honor, just because
21 Defense expert cardiovascular surgeon goes in and
22 examines the defendant doesn't mean now the State can
23 choose any type of expert witness they want to go in and
24 speak to the defendant and ask him about any issue he
25 wants because obviously --
13
1 THE COURT: Do you think that's what the
2 State is doing here?
3 MR. ROMIG: No, not exactly, Your Honor.
4 The problem in this case is that Dr. McGarrahan a Defense
5 expert at trial is a neuropsychologist but also does
6 general psychological evaluations. And so in this case
7 she was one expert that did multiple, different types of
8 examinations of the defendant.
9 She did personality testing. She did a general
10 mental health examination, and she did specific
11 neurological examinations that utilized a specific
12 battery of tests that only neuropsychologists do.
13 It's those neuropsychological testings that are
14 the basis of our fetal alcohol syndrome claim. The basis
15 of the deficits for which the application is speaking
16 about.
17 Now it may be that Dr. Reed did
18 neuropsychological testing. We are also in the dark as
19 far as what Dr. Reed did as the State mentioned. In our
20 investigation, we discovered that Dr. Reed had done an
21 evaluation but that it was sealed under Lagrone. So I
22 think it's entirely appropriate for, Your Honor, to get
23 the report and find out what was done.
24 What we're saying is not appropriate is if
25 Dr. Reed merely did a general psychological evaluation
14
1 that was aimed at looking at things like schizophrenia,
2 major mental health diagnoses, that's not what we're
3 talking about in the application. What we're talking
4 about is neuropsychological deficits. If Dr. Reed didn't
5 do neuropsychological testing, it's not apples and
6 apples; it's apples and oranges.
7 And you'll actually see in the third case that
8 we've given you that the State cites is the Davis case.
9 In that case at trial there was a distinction made
10 between the types of experts you can use. The Defense
11 had a psychiatrist evaluate the defendant, and the trial
12 court said, okay, State, you can have a psychiatrist.
13 You cannot have a psychologist. And that was an
14 appropriate limitation.
15 So in this case all we're saying is that, Your
16 Honor, needs to look at Dr. Reed's report and look at
17 what testing she actually conducted. And, if it's not
18 neuropsychological testing, that's just simply not the
19 issue that's been brought up by the application so it's
20 not appropriate to disclose.
21 THE COURT: Okay. And Dr. Reed's report,
22 where is that? I wasn't the judge when she testified.
23 MS. YEATTS: It's sealed. She would have
24 provided a copy to Judge Snipes under seal and he would
25 have reviewed it.
15
1 THE COURT: Where would Judge Snipes have
2 put it?
3 MS. YEATTS: We can certainly ask her to
4 provide a sealed copy to you now, Judge.
5 THE COURT: That would be great.
6 MS. YEATTS: But I'd like to address some
7 of those items, if I may.
8 THE COURT: Okay. Were you finished,
9 counselor?
10 MR. ROMIG: For the moment, yes.
11 THE COURT: Okay. You may respond.
12 MS. YEATTS: The way the Court of Criminal
13 Appeals has narrowed the Lagrone cases and the cases that
14 follow, is that it's mental health expert and mental
15 health expert. It's not narrowed beyond that.
16 Dr. Reed is a forensic and clinical
17 psychologist, and Dr. McGarrahan is a neuropsychologist.
18 I imagine -- without having seen Dr. Reed's report, I
19 don't know, but I imagine there's a lot of crossover in
20 those types of evaluations.
21 Counsel is splitting hairs by saying -- he
22 can't pick the State's expert, Your Honor. And my
23 position would be that when we present the evidence and
24 when we present the testimony, anything that my expert
25 has to say would go to weight and not admissibility.
16
1 He's trying to upfront bar me from using this witness,
2 and I don't think that's appropriate, Your Honor.
3 I think that the Davis case supports the
4 State's position. In the Davis case, the trial court did
5 elect to limit the psychologist's examination because the
6 psychiatrist had not done any testing. So in that case
7 the trial court decided that the State wouldn't bring a
8 psychologist to do testing. They would just bring in a
9 parallel psychiatrist.
10 Your Honor, that case otherwise supports the
11 State's position of the expansion of Lagrone, and that
12 wasn't the issue before the Court of Criminal Appeals.
13 That was already something that had been decided by the
14 trial court, and they're moving beyond that.
15 Also, Judge, in the Ward case that I cited in
16 my brief, the issue was a social worker testifying about
17 mitigation who had relied on other evaluations done by
18 other individuals. And the Court there decided that the
19 State could have its own psychiatric expert come in and
20 evaluate the defendant when the social worker who took
21 the stand relied on third party psychiatric evaluations.
22 So there the Court's focus in these cases, Your
23 Honor, the cases that follow Lagrone is on the
24 defendant's choice to break his silence, and the Court of
25 Criminal Appeals has said they are not going to do hair
17
1 splitting on these issues on whose testimony whose
2 evaluations are allowed.
3 Also, Judge, you know this is a writ hearing.
4 We don't have a jury in the box. And my position would
5 be that my rebuttal would be allowed broadly so that I
6 can bring in different experts.
7 If his expert wants to say that the ADHD and
8 the other characteristics that he exhibited throughout
9 life were based on alcohol fetal syndrome, I can be
10 bringing experts that say these deficits were based on
11 something else. They have a different etiology.
12 So I don't have a jury in the box, Judge. This
13 is part of what you are deciding in this writ. He claims
14 that trial counsel should have brought in this expert,
15 and I can show the Court, if trial counsel had brought in
16 that expert, this is the one or two or three or four
17 experts I may have brought in at rebuttal at trial or the
18 State would have brought in at rebuttal at trial.
19 And then part of your decision in this writ,
20 Judge, is to decide whether that's relevant and whether
21 that would have been admitted at trial. And until you
22 hear that testimony from the witness stand, you shouldn't
23 be asked to make that decision upfront now and preclude
24 that evidence from coming in later. That's part of your
25 decision on the writ.
18
1 So we would submit our findings. You would
2 make those decisions on whether that evidence would have
3 been admitted or not. There's no reason to decide that
4 now and to preclude the State from putting on a portion
5 of its case this early in the game, Your Honor.
6 THE COURT: Okay. Let me hear the
7 Defense's response.
8 MR. ROMIG: So just a couple of points on
9 that, Your Honor. I would say, first, I don't think the
10 State's description of the Lagrone cases and the case law
11 is exactly accurate. I don't think the CCA has gone so
12 far as to say mental health evidence is mental health
13 evidence and it's all the same.
14 What they have instead focused on is the
15 evaluation that is performed. Absolutely, the Defense
16 has no right and we are not trying to suggest which
17 expert does or does not get to evaluate on behalf of the
18 State. We have no problems with Dr. Reed as an expert
19 witness. It's that did she do the equivalent type
20 testing. We're not even saying she has to do the same --
21 THE COURT: Well, I mean, it does kind of
22 boil down to that. What was she testing and how would we
23 know that unless I have --
24 MR. ROMIG: Exactly. You need to get the
25 report. That's our point. You need to get the report
19
1 and look at it and see is what she is doing is looking at
2 actual cognitive deficits. Because that's the underlying
3 data that we're going to be focusing on in the writ
4 hearing is cognitive impairments, not other sort of
5 psychological issues like psychosis. That's not part of
6 our focus.
7 THE COURT: But I need you to also address
8 the State's point. If he's saying, oh, my counsel was
9 ineffective. He should have brought this expert up.
10 MR. ROMIG: Exactly, Your Honor.
11 THE COURT: And that's a technical
12 decision on what to bring up. And they are saying, yeah,
13 and if you had, guess what I would have brought up. So
14 is it ineffective or is it strategically deciding what to
15 bring --
16 MR. ROMIG: That's why I think it's a
17 little bit of a red herring on the part of the State to
18 say let's focus on what could the State have in
19 speculation presented had they been back in that
20 situation.
21 THE COURT: How would they know that
22 unless we allow them to view --
23 MR. ROMIG: The writ hearing is about
24 counsel's performance, not the State's performance.
25 THE COURT: Right. But, if you are trying
20
1 to evaluate whether counsel performed inadequately,
2 wouldn't that be a part of it? They should have called
3 that person or maybe they should not have because in turn
4 three, four, five, six things would have been brought up.
5 MR. ROMIG: The problem with evaluating
6 that way, Your Honor, is it doesn't actually look at
7 counsel's performance. It starts to look at the end
8 game. It starts to look at what might the State have
9 done, and we don't know what the State would have done.
10 And, in fact, by the time trial happens, we
11 should be evaluating the trial counsel's performance on
12 what they did pretrial. Whether the State brought
13 forward another expert, at that point their performance
14 is done. Trial counsel's performance has been complete.
15 If we're going to be evaluating trial counsel's
16 performance, we need to be looking at only what
17 information they would have had at the time they're doing
18 their investigation and creating the case.
19 THE COURT: They, meaning Defense counsel?
20 MR. ROMIG: Defense counsel. They
21 wouldn't have had the defense of the State's expert's
22 report. They wouldn't have known necessarily what
23 experts the State were planning on utilizing.
24 THE COURT: So am I understanding this
25 correctly? Judge Snipes sealed this from both sides?
21
1 Defense has not reviewed it; State has not reviewed it?
2 MS. YEATTS: Correct, Your Honor.
3 THE COURT: Okay.
4 MR. ROMIG: All we are asking, Your Honor,
5 is please review it and make sure it's actually
6 equivalent data.
7 THE COURT: You're saying how would trial
8 counsel know because they didn't --
9 MR. ROMIG: They would have never received
10 it until after trial is going on.
11 THE COURT: All right. I'll take a look
12 at that.
13 MS. YEATTS: I am aware that Pat Kurlin
14 communicates extensively with Defense counsel during this
15 trial, and I imagine he has told Defense counsel, given
16 them some indication of whether he would be calling
17 Dr. Reed depending on what they did. Those things are
18 often negotiated as a part of strategy.
19 And also just to remind you that we're also --
20 the case law governs this, but we're also looking at the
21 economy of this issue. We hired this expert and paid
22 her. She did an evaluation. He has waived his Fifth
23 Amendment privileges.
24 Do I want to bring in another expert and do my
25 evaluation from scratch? I don't know, Your Honor. But
22
1 there is an economy piece to this.
2 THE COURT: Okay. All right. Anything
3 else on that issue?
4 MS. YEATTS: No.
5 THE COURT: All right. Let's go to the
6 State's Motion for Disclosure of Roderick Harris' trial
7 files.
8 MS. YEATTS: There is one other brief
9 thing on that, Your Honor.
10 We would ask in conjunction with our motion
11 that Dr. McGarrahan's raw data be provided to our expert
12 to prepare for our writ hearing.
13 THE COURT: Okay. Any objections from the
14 Defense?
15 MR. ROMIG: I'm sorry which expert?
16 THE COURT: Dr. McGarrahan's.
17 MS. YEATTS: Dr. McGarrahan's raw data.
18 MR. ROMIG: Provided to Dr. Reed?
19 MS. YEATTS: To Dr. Reed. Your Honor, the
20 raw data usually does not go through counsel. Usually --
21 often at trial there's an agreement between counsel, and
22 the psychologists contact each other and exchange that
23 raw data.
24 THE COURT: Do you all object to that?
25 MR. SCHEPERS: At the very least, Your
23
1 Honor, we would think that if that sort of scenario
2 is what is occurring that our experts need to have
3 Dr. Reed's raw data as well if you make the determination
4 to release that report.
5 THE COURT: Okay. Any objections from the
6 State?
7 MS. YEATTS: If the report is released,
8 the State does not object to an exchange of raw data
9 including Dr. Reed.
10 MR. SCHEPERS: If the report is released,
11 the exchange is fine with us.
12 THE COURT: All right. Anything else?
13 MS. YEATTS: Not on that issue.
14 THE COURT: All right. Let's go to
15 State's Motion for Disclosure of Roderick Harris' trial
16 file.
17 MS. YEATTS: Okay. Your Honor, as we said
18 the bulk of this writ, I think five out of six claims,
19 are ineffective assistance of trial counsel, and those
20 ineffective assistance claims go to failure to
21 investigate and failure to present certain evidence.
22 The State's position is that Mr. Harris' trial
23 file documents their investigation. The trial file
24 documents the performance and the preparation, the
25 investigation made to prepare for trial.
24
1 We are aware in past cases that the Office of
2 Capital Writs normally scans trial counsel's file. It's
3 been their practice in other cases in this building or
4 three other cases where they agreed to provide the State
5 with the trial file.
6 In two of those cases, the trial file was
7 provided on disks. In one case -- of course, I am
8 talking about portions of the file that are relevant to
9 the ineffective assistance claims, Your Honor. I should
10 have said that upfront.
11 In one case they provided portions of the file
12 designating what they didn't think was relevant to the
13 claims. In the third case, they agreed to provide the
14 file and then counsel was substituted.
15 So, the State's position is that the Court of
16 Criminal Appeals has held in the McCann case, which the
17 Office of Capital Writs is very familiar with because
18 they were involved in this case, the Court of Criminal
19 Appeals held that the trial file belongs to the
20 defendant. The trial files belong to the individual.
21 So, based on our discussions, our understanding
22 and based on the response that the Office of Capital
23 Writs has filed, is that they acknowledge that Mr. Harris
24 has entered into a limited waiver to attorney-client and
25 work-product privilege information in his file. That the
25
1 issue has become what do we do based on that waiver.
2 The State believes that the McCann case clearly
3 says on Page 3 and on Page 9 that the file belongs to the
4 client. I think what the Office of Capital Writs is
5 proposing based on an answer they filed last week is that
6 it's up to trial counsel what the scope of this waiver is
7 and what to provide.
8 And the State is opposed to that position
9 because they represent the client. The file belongs to
10 him. They're in possession of the file. Trial counsel
11 turned over the original copy of the file to them. And
12 as of Tuesday, trial counsel didn't have a copy. I don't
13 know if a copy has been provided to trial counsel since
14 Tuesday.
15 The State believes that putting trial counsel
16 in a position of evaluating the ineffective assistance
17 claims and determining the scope of that waiver and trial
18 counsel determining what to turn over to the State puts
19 that duty in the wrong place.
20 I don't believe it's practical, Your Honor. We
21 think this is governed by Texas Rule of Evidence 503(C)
22 and (D)3 that says the privilege belongs to the client.
23 The privilege belongs to Mr. Harris. When he's waived
24 it, we feel like they have a duty to review the file,
25 determine what relates to the ineffective assistance
26
1 claims and provide that to the State.
2 And, Your Honor, the State believes that
3 these -- much of the claims that are made in this writ
4 were based on and rely heavily on the original review of
5 the trial file. So we believe it brings the file
6 specifically into issue and that likely involves a fair
7 volume of materials.
8 THE COURT: Let me be clear. What part of
9 the file are you requesting, all of it?
10 MS. YEATTS: Anything that relates to the
11 ineffective assistance claims and those claims cover --
12 THE COURT: It could be all of it.
13 MS. YEATTS: It could be all of it, Your
14 Honor. Those claims cover the mitigation case and those
15 claims cover objections that were or were not made in the
16 guilt innocence phase, and those claims cover the
17 pretrial investigation. So the State cannot imagine much
18 that might be in the file that would not relate to those
19 claims.
20 THE COURT: I'll give the Defense a chance
21 to respond. I don't think their argument is that the
22 file doesn't belong to the client. I don't think. It's
23 how extensive is it. Is it opening up the entire file.
24 Anyway, let me let you finish then I'll hear their
25 response.
27
1 MS. YEATTS: Well, the problem is that
2 they want to make the claims of ineffective assistance,
3 but they don't want to provide the evidence that they
4 have in their hand that relate to those claims. And to
5 put the burden on trial counsel, on Brad Lollar, on Doug
6 Parks, on the other attorneys -- first of all, there are
7 four attorneys and -- so you are talking about four
8 people looking at the file, looking at the scope of the
9 waiver, deciding what may or may not be involved in
10 claims that Mr. Harris has raised. They don't -- the
11 terms -- the claims are framed by Mr. Harris. And, to
12 put that burden on the Defense attorneys, the State
13 believes is improper.
14 Also, Your Honor, there's a chilling effect to
15 those attorneys being willing to provide portions of a
16 file that doesn't belong to them, and there's a chilling
17 effect because they may be in fear that if they make a
18 mistake, if they analyze Mr. Harris' claims wrong, they
19 could be liable for a grievance. So there's a chilling
20 effect to them putting this on the trial attorneys' lap
21 to undertake this burden.
22 THE COURT: You're saying what motivation
23 do they have to say, yeah, you're right. I messed up.
24 Here you go. Or, no, I didn't. Here you go. Because
25 then doesn't it affect you when you are in trial? Should
28
1 I put this in my file because later it's discoverable.
2 See, that's kind of the principle behind it because you
3 have a free flow of information with the defendant.
4 MS. YEATTS: That's part of the chilling
5 effect. The chilling effect I'm talking about is they're
6 worried that if they provide something that they should
7 have kept privileged that they will be grieved, and that
8 they'll be grieved by Mr. Harris who filed these
9 ineffective assistance claims.
10 THE COURT: I can understand that. Was
11 that it on that point, because I know you have more? But
12 I want to take it a point at a time and let them respond
13 and then you can go on to the next one, unless you're not
14 finished.
15 MS. YEATTS: They can go ahead, Your
16 Honor.
17 THE COURT: Okay. Defense's response.
18 MR. SCHEPERS: Thank you, Your Honor.
19 First, we certainly recognize and agree with the State
20 that by having raised claims of ineffective assistance of
21 counsel here we've created a limited waiver of otherwise
22 privileged information. I think the State's assessment
23 of our position is pretty close to spot-on where we
24 stand.
25 The State thinks because we've raised
29
1 ineffective assistance of counsel claims that then
2 they're automatically entitled to view trial counsel's
3 files. It's our position that trial counsel is the party
4 that should determine what information is relevant and
5 necessary to be revealed to this Court to defend
6 themselves against those IAC claims.
7 There are three brief points that I'd like to
8 highlight on that, and then I will respond to a couple of
9 the State's arguments.
10 The first point that I'd like to make is that
11 nowhere in the State's motion is there any binding
12 authority for the idea that the State is now entitled to
13 access to trial counsel's files. What these cases stand
14 for, the Texas cases and many of the ABA opinions as
15 well, is that trial counsel once an IAC claim is raised
16 is then permitted to defend themselves with otherwise
17 privileged information.
18 The second point that I'd like to highlight is
19 that I think the State's request for such broad discovery
20 in this case in a lot of ways is really a breath-taking
21 proposition in my opinion in a criminal case. In very
22 few scenarios is a defendant in a criminal case ever
23 required to provide discovery to the State.
24 Now there certainly are some scenarios, for
25 example, if competency is being litigated, the defendant
30
1 would have to turn over relevant medical records. The
2 defendant would also have to provide limited discovery
3 regarding experts that they want to put on at trial.
4 But I think the discovery in those cases is
5 significantly smaller than what the State asked for here.
6 And, perhaps, more importantly there's a specific
7 statute, case law and evidentiary rule that specifically
8 requires that and in this case that just simply doesn't
9 exist.
10 The third point I would like to make is that in
11 an IAC writ, the State does not represent trial counsel.
12 Now almost certainly they'll be arguing that trial
13 counsel performed effectively, but they're not trial
14 counsel's representatives in this matter. And we don't
15 think it's appropriate for them to substitute their
16 judgment in for what trial counsel should be making
17 determinations of what information is relevant and
18 necessary.
19 And in response to the State's argument, I
20 would like to point out, Your Honor, we have just this
21 morning actually we met with two of Mr. Harris' trial
22 counsel and we've told them that we'll provide for them
23 copies of the file for their review. So they will have
24 access to those materials both to prepare themselves for
25 court and also to determine which of those materials are
31
1 necessary to put into the fact-finding process during
2 their testimony in the May hearing.
3 The second point that I would like to make is
4 regarding the chilling effect that the State is talking
5 about. The first thing I would like to point out is that
6 I think a far greater chilling effect than the
7 possibility of -- than trial counsel having to look and
8 see what's in their file to determine what to release, is
9 a Court such as yourself ordering that their entire trial
10 file or to the extent that it's relevant and necessary is
11 automatically turned over to the State. I think that
12 would have a significantly larger chilling effect a court
13 order going into place rather than trial counsel
14 themselves sitting down and determining how they need to
15 defend themselves against those IAC claims.
16 I also would like to point out -- I think there
17 was some suggestion that there would be the possibility
18 of fear of reprisal from the Office of Capital Writs
19 based on the material that is turned over.
20 In the four and a half years that our office
21 has existed, we've never filed a bar grievance against an
22 attorney for turning over materials. And to be honest,
23 Your Honor, I can't come up with a scenario in my head
24 right now where that would be appropriate. I certainly
25 can't make a blanket statement, but I can't come up with
32
1 any scenario off the top of my head right now or filing a
2 bar grievance or something along those lines would be the
3 appropriate remedy.
4 So, our position is basically -- we're asking
5 you certainly to deny the State's motion and then keep
6 the power where the case law supports that it should be,
7 with trial counsel, to determine which of this
8 information needs to be turned over.
9 THE COURT: Have any portions of the file
10 been turned over to the State at this point?
11 MR. SCHEPERS: They have not, Your Honor.
12 THE COURT: Okay. So, before the State
13 argues open up the whole file, why not look at --
14 depending on how I rule, why not look at what's provided
15 and see if that's sufficient first before you make the
16 argument that maybe more is needed.
17 MS. YEATTS: I would be happy for the
18 Court to order the Office of Capital Writs to provide
19 what they think is relevant to an ineffective assistance
20 claim and to provide a privileged log and then I could --
21 you know, Your Honor could view the privileged log and
22 the Court could also and if there's something on the
23 privileged log that you think we should have access to we
24 would challenge it at that point.
25 THE COURT: I'm sorry. I cut you off. I'm
33
1 going to come back to you. You weren't finished yet. Did
2 you have anything else you wanted to say?
3 MR. SCHEPERS: I do now. Just to be
4 clear, we're objecting to turning over any materials to
5 the State but I was finished. Thank you, Your Honor.
6 THE COURT: Okay. You may respond.
7 MS. YEATTS: Your Honor, one thing that
8 counsel referenced in a cite in a brief is the American
9 Bar Formal Opinion 10-456. I would point out to the
10 Court that is an advisory opinion. The American Bar
11 Association and its advisory opinions are not binding on
12 the Court.
13 Also, the problem is that the American Bar
14 Association opinion does not take into account the McCann
15 case which says that the trial file belongs to the
16 client, belongs to Mr. Harris. And I'm not sure with the
17 McCann case in existence that it would not be problematic
18 for trial counsel to turn over anything, anything hard
19 copy from the file.
20 I think there's a practical piece to this, too,
21 Your Honor. If we wait until trial counsel is on the
22 stand and then we bring up the subject and then we
23 determine that something they're talking about is
24 documented in the file and that needs to be part of these
25 proceedings, we'll be doing that piecemeal and we'll be
34
1 slowing down the hearing and we may be wasting the Court
2 and the parties time.
3 In this instance the American Bar opinion talks
4 about that trial file should be provided only under court
5 supervision, and I think that's where we are, Your Honor.
6 We are in the phase of court supervision. And in the
7 instance of these writs, of course, the writ is filed
8 with evidence attached; the affidavits of the experts,
9 the affidavits of the family members, the people who have
10 something to say about the writ claims.
11 In the past, Your Honor, the State's response
12 would include affidavits by the trial attorneys
13 addressing those writ claims. So, at the phase we're at
14 now, we would have normally in the past already have had
15 trial attorneys' testimony in the record. Because the
16 Office of Capital Writs in the past has asked us not to
17 speak to the trial attorneys until after the Order
18 Designating Issues is entered, which we have done in this
19 case, we don't have evidence from the trial attorneys but
20 we could, Your Honor.
21 We could have evidence from the trial attorneys
22 in the form of affidavits which even under the American
23 Bar Association opinions would then allow the Court to
24 order those attorneys to provide portions of their
25 records that relate to these claims.
35
1 So the State's position is there's no sense to
2 wait until the hearing. That pushes things off. The
3 State's position is that really the purpose of opposing
4 this motion is to put the State at a disadvantage to
5 prepare for this hearing.
6 THE COURT: The hearing is scheduled for
7 May?
8 MS. YEATTS: Yes, ma'am.
9 THE COURT: I will make the decision well
10 before May, I promise you.
11 Anything else from the Defense?
12 MR. SCHEPERS: Your Honor, we would just
13 like to add in that we don't think the State's reference
14 to McCann here is particularly relevant in light of the
15 fact that trial counsel does have access to these files.
16 Certainly, we agree with the proposition in McCann which
17 we think is essentially always been the law. It was
18 clarified, stated in McCann, that the file belongs to the
19 client.
20 I think the biggest point that I would like you
21 to take away from this is just what a huge step the State
22 is asking here for in a criminal case, just massive
23 amounts of discovery without any case law, without any
24 statute, without an evidentiary rule; and we believe that
25 this power should be left for trial counsel to determine
36
1 how they need to defend themselves and not to let the
2 State substitute their own opinion in there.
3 THE COURT: There will definitely be a lot
4 of material.
5 Anything else from the State?
6 MS. YEATTS: Just, Your Honor, that I
7 think the McCann case is on point. It puts trial counsel
8 in a bind. We think that the Office of Capital Writs has
9 the duty and obligation here to review the file and
10 determine what's relevant. That's all, Your Honor.
11 MR. LEVENSON: Counsel -- may I add
12 something?
13 THE COURT: Yes, you may.
14 MR. LEVENSON: Of the -- if this court was
15 -- two things: If this court was going to rule for the
16 State, one, we would less likely take a mandamus up to
17 the Court of Criminal Appeals. So that might delay --
18 depending on how long the court took. Because there is
19 again no law or statute that talks about this type of
20 discovery.
21 Second, the issue of electronic versus paper.
22 The State has asked for electronic copy of our files. At
23 one point we were negotiating with the State and we said
24 to them, if you will supply an electronic version, we
25 would consider continuing to supply an electronic
37
1 version.
2 The State would not give us an electronic
3 version. They made their files available to review. If
4 this court was going to determine that the State should
5 have access to the files, at most the State should come
6 to Austin and review the same way that we reviewed their
7 files on paper without the electronic version. It
8 certainly makes it easier for the State to have an
9 electronic version but there's no --
10 THE COURT: Okay. Any objections to that
11 from the State, if I were to rule that way?
12 MS. YEATTS: The State doesn't have a
13 problem with reviewing the hard copies of the file, Your
14 Honor. The issue with our file, we don't provide an
15 electronic copy because we don't have one, and we have to
16 provide the manpower and pay to have our files scanned.
17 We believe the Office of Capital Writs already has this
18 on disks which they should have already and may be
19 providing to trial counsel.
20 THE COURT: You're saying that would be an
21 easier way to do it?
22 MS. YEATTS: It is, Your Honor. The State
23 believes that the reason they don't want to provide an
24 electronic copy is they don't want the State to offer
25 that into evidence which has been done in the past. And
38
1 we think that the file should be offered into evidence to
2 document what the Office of Capital Writs had in
3 developing their writ claim.
4 THE COURT: Okay.
5 MS. YEATTS: So we would ask for an
6 electronic copy, Your Honor. And also when they came to
7 review our file earlier this week, they tagged items they
8 wanted copies of. I provided those to them. There was
9 nothing that they asked for a copy of that I didn't
10 provide.
11 THE COURT: Defense.
12 MR. LEVENSON: We would do the same thing
13 for them, if they came to Austin. If we were not going
14 to object to the Court's ruling, if the Court went that
15 way, we would make copies available to them. Also, we do
16 scan the files for our benefit, the benefit of us. We
17 don't do it for the use of the State later on.
18 THE COURT: But help me understand. She's
19 saying they don't have theirs in an electronic version;
20 you do. So is it to make it more burdensome upon them or
21 what would be the purpose -- if you have it both ways,
22 what would be the purpose of having them come in for the
23 physical files as opposed to electronic?
24 MR. LEVENSON: They can. I mean it cost
25 money and manpower for us to scan our files and we do it
39
1 so we can review them. We have an easier way of
2 documenting them.
3 THE COURT: Like I'm trying to make it
4 easier for me, not easier for you, right? Is that the --
5 MR. LEVENSON: We scan them for our
6 benefit. We're not scanning them for the State. The
7 State could spend manpower and money to scan their files
8 like we do, because they know that we would like to see
9 their files as well.
10 THE COURT: I understand. Okay. Anything
11 else from the State?
12 MS. YEATTS: That's all, Your Honor.
13 THE COURT: All right. Anything else from
14 the Defense?
15 MR. LEVENSON: No, Your Honor.
16 THE COURT: Okay. Dr. Reed's report, who
17 can get in contact with Dr. Reed?
18 MS. YEATTS: I can, Your Honor.
19 THE COURT: Okay. Let me review that, and
20 then I'll give you a ruling on both of these motions; and
21 I will do that well before the hearing in May so then
22 both sides will know and can prepare accordingly.
23 MR. ROMIG: Your Honor, I guess I would
24 just add one thing on Dr. Reed.
25 THE COURT: Yes.
40
1 MR. ROMIG: Again, we object to it being
2 disclosed, if it's not relevant. If you do disclose it,
3 we would also like to have a copy, if possible.
4 THE COURT: Okay. All right. Any
5 objections to them having a copy, if I do disclose it?
6 MS. YEATTS: We will be getting copies of
7 all of their doctor's reports.
8 THE COURT: I thought the issue was
9 Dr. Reed. That was the main issue. That's the only
10 report I'm reviewing.
11 MS. YEATTS: Although I did ask for raw
12 data from Dr. McGarrahan's report.
13 THE COURT: Okay. And if I were to rule
14 that this report is going to be unsealed, I think we have
15 an agreement that there will be an exchange of raw data
16 so I understand that.
17 MS. YEATTS: I don't object to them
18 receiving a copy of Dr. Reed's report, Your Honor. I
19 expect that to be part of their litigation.
20 THE COURT: Very good. Both sides trying
21 to be fair. I love it. I love it. So I will review
22 that and I'll have my court coordinator get in contact
23 with you all. You don't have to come back down here for
24 my ruling unless you just want to make a trip to Dallas.
25 I can email it to you. We'll get that to you in some
41
1 form so that you know.
2 Okay. Anything else I need to cover for the
3 record?
4 MR. LEVENSON: No, Your Honor.
5 THE COURT: All right. That's all for the
6 record.
7 (End of the proceedings)
8 -o-0-o-
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
42
1 STATE OF TEXAS &
2 COUNTY OF DALLAS &
3
4 I, Vearneas W. Faggett, Official Court Reporter in
5 and for the Criminal District Court No. 7 of Dallas,
6 State of Texas, do hereby certify that the above and
7 foregoing contains a true and correct transcription of
8 all portions of evidence and other proceedings requested
9 in writing by counsel for the parties to be included in
10 this volume of the Reporter's Record in the above-styled
11 and numbered cause, all of which occurred in open court
12 or in chambers and were reported by me.
13 I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits, if
15 any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $ ______ and
18 will be paid by ________________.
19 WITNESS MY OFFICIAL HAND this the 21st day of
20 April, A.D., 2015.
21 /s/Vearneas W. Faggett
VEARNEAS W. FAGGETT, CSR# 3129
22 Official Court Reporter
Criminal District Court No. 7
23 Dallas County, Texas
133 N. Riverfront Blvd.
24 Dallas, Texas 75207
Telephone: 972.739.3906
25 Expiration: 12/31/2015
43
1 D I S C L O S U R E
2 Note: Supreme Court Rule Adopted and Promulgated in
3 Conformity with Chapter 52 of the Government
4 Code, V.T.C.A
5
6
7 Please be advised that pursuant to Supreme Court
8 Rule IV, B.5., with regards to disclosure, I, to the best
9 of my knowledge, have no existing or past financial,
10 business, professional, family or social relationships
11 with any of the parties or their attorneys which might
12 reasonably create an appearance of partiality, except as
13 follows: NONE.
14
15
16
17 /s/Vearneas W. Faggett
VEARNEAS W. FAGGETT, CSR #3129
18 Expiration: 12/31/15
Criminal District Court No. 7
19 Frank Crowley Criminal Courts Bldg.
133 N. Riverfront Blvd.
20 Dallas, Tx 75207
21
22
23
24
25