Defenders Critical Of Prosecutor

They Claim Clients Hurt By Withheldpolice Data

May 05, 1991|By Jackie Powder | Jackie Powder,Staff writer

Local defense attorneys are frustrated by the state's attorney's policy of routinely withholding pertinent police information they say iscritical to preparing an effective defense for their clients.

Thelawyers claim they are legally entitled to some of that information,and that being refused access to it creates inefficiency in the court system. They also contend that they are forced to advise clients without knowing basic facts of the case.

"I simply don't know what to tell my clients -- whether they should plead guilty, whether we will prevail -- if I don't have enough facts," said Carol A. Hanson, the district public defender for the county.

But State's Attorney William R. Hymes says his office providesdefense attorneys with all information they are entitled to, including summaries of police investigations and any material that would show a defendant's innocence in a case.

"This is an adversary procedure," Hymes said. "We're not supposed to roll over and play dead for the defense, and as long as I'm here, we never will.

"She wants absolute carte blanche to walk into the police department and say 'I want to see everything you have,' " Hymes said of Hanson's complaint.

Under Maryland law, prosecutors must provide defense lawyers with names and addresses of witnesses, expert opinions and reports, exculpatory information and any statements made by the defendant.

But defense attorneys in Howard County receive "very skimpy" information regarding defendant statements and exculpatory material, said Hanson. Shealso said material relating to searches and seizures and lineup identifications is generally not provided.

"I have a case where the state said there was no search and seizure, when I know for a fact the car was searched for CDS (controlled dangerous substance) and a knifewas taken from the car," Hanson said.

"I think there is a substantial risk of injustice resulting when all of the facts are not made known to defense counsel."

Three weeks ago, a Court of Special Appeals criticized a local judge's decision permitting the state to withhold witness statements and police reports from defense lawyers duringa 1988 murder trial. Even after the witnesses had testified, the state's attorney refused to make the information available to the defense.

The appeals court said that Circuit Judge Cornelius F. Sybert should have allowed the records to be reviewed by the defense. "It waserror to refuse to do so," the court said.

Hanson said that basedon her discussions with public defenders statewide, Howard County isone of the few jurisdictions where police reports are not available to defense attorneys.

Although prosecutors are not obligated to provide defense attorneys with official police reports, many state's attorneys operate under an "open-file policy," which allows defense lawyers access to them.

"A competent defense attorney can't intelligently evaluate the prosecution's case without having full access to information in police reports," said Columbia defense lawyer Jonathan Scott Smith, who is a former Baltimore County prosecutor.

Other area prosecutors have differing opinions on the issue.

"Even though I'm on the prosecution side, how can you defend your client without knowing what the report's all about?" said Howard B. Merker, a deputy state's attorney in Baltimore County. Defense attorneys there can get police reports directly from the police department by paying a copying fee, Merker said.

"In my mind, the more a defense attorney knowsabout the strength of his case, that will enable him to make an informed recommendation to his client to plead guilty," said Dwight Jackson, a prosecutor in the Prince George's County homicide unit. The state's attorney there has an open-file policy.

"Notes of an attorneyyou don't give; but any prepared reports by state agents we usually disclose to defense counsel," Jackson said.

The Anne Arundel State's Attorney's Office leaves the decision to individual prosecutors, said Gerald K. Anders, a deputy state's attorney.

Like Howard County, the Harford County State's Attorney's Office doesn't make police reports available to defense attorneys.

"We're very conservative about giving up reports; as a general policy we don't give them up," said Assistant State's Attorney Bill Christoforo. He said he believes his office is in the minority regarding its policy.

J. Theodore Wieseman, director of the Public Defender's Office in Montgomery County,says the open-file policy has worked well there and saves time and arguments in the courtroom over production of information from police investigations.

"There are times when the state loses cases they wouldn't have lost had they not turned everything over," Wieseman said. "But they shouldn't win because of surprises and being able to hide things that should go into court."

The contents of police reports vary. However, in most cases they include an officer's observationsof a crime scene and questioning of people.

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