Open Records Policies Shine Light on Misconduct, Injustice

Dallas County (TX) District Judge Mark Stoltz issued findings of fact and conclusions of law last week before recommending that the murder convictions of Dennis Lee Allen and Stanley Orson Mozee be overturned. The two men were subsequently released after each had served 15 years in prison. The judge’s findings will now go before the Texas Court of Criminal Appeals for review. ABC News WFAA 8 reported (here) that the two are expected to be exonerated.

Allen and Mozee were convicted of the 1999 murder of Reverend Jesse Borns Jr., who was found stabbed outside his workplace, a retail store. No physical evidence linked the men to the crime. The conviction was won on the unrecorded confession of Mozee — who immediately recanted and claimed he was coerced into signing the police-written statement — and the testimony of two jailhouse informants. The informants denied under oath at trial that they were promised compensation for their testimony.

However, when the Innocence Project and the Innocence Project of Texas reviewed the case file of former Assistant District Attorney Rick Jackson, they found ample evidence — concealed from the defense, an apparent Brady violation — that compensation was negotiated and delivered in the form of reduced sentences for the informants in their own criminal cases. One of the informants reminded the ADA that a Dallas Police Detective knew that the informant’s testimony was “conditioned on dismissal of charges” pending against him.

Dallas District Attorney Craig Watkins, who instituted an open file policy in 2008, and his Conviction Integrity Unit agreed with the Innocence Project and Ezekiel Tyson, Jr., attorney for Mozee, that the former prosecutor had withheld exculpatory evidence, which resulted in an unfair trial. The informants admitted to defense attorneys that they gave false testimony about Allen and Mozee.

Nina Morrison, a senior staff attorney with the Innocence Project, noted that without the open files policy, investigators would never have discovered the letters that recorded the compensation discussions. The Texas legislature made open files a statewide requirement with passage of the Michael Morton Act.

Morrison said, “… the legislature has provided a model for the nation by putting these protections in place statewide.”

The Innocence Project also conducted DNA testing on numerous pieces of evidence from the crime scene, including a blood stain, hair under the fingernails of the victim, and a hammer found next to the body. None of the biological material matched Allen or Mozee but did reveal the presence of one or more other unidentified individuals.

In the case report from the Innocence Project (here), Natalie Roetzel, Chief Staff Attorney with the Innocence Project of Texas, said, “Having access to old District Attorney files has proven to be one of the most effective ways of determining if persons are in prison as a result of unfair trials.”

Even though the American Bar Association approved expanded open discovery in 1994, and even though the Brady requirement, established in Brady vs. Maryland, requires that the prosecution share exculpatory evidence with the defense, in many jurisdictions resistance to opening criminal case files before trial and after conviction is still strong, taking many forms, and using varied justifications.

Last month, the Ohio Innocence Project (OIP) filed a public records lawsuit in the case of Adam Saleh, who was convicted of a 2005 murder and sentenced to 38 years in prison. The OIP does not represent Saleh but would like to review his case to ascertain if his claim of innocence has merit.

The lawsuit alleges that police around the state have increasingly resisted release of criminal case records. According to an article in Akron Legal News (here), the lawsuit claims that “… police departments are wrongly interpreting prior court rulings when it comes to the public’s right to get information about closed cases.”

The lawsuit by Cincinnati attorney Donald Caster argues that changes in Ohio Supreme Court evidence rules have addressed concerns such as the safety of informants. The Ohio case has been referred to mediation.

The Columbus Dispatch recently editorialized (here) that “Files should be open” in an Ohio State Supreme Court case, which will establish whether arrest records and incident reports of private universities and hospitals are public documents. The editorial concludes,

“In a free society, police work must be done in the open to guard against abuse — and against unfounded charges of abuse. Whether citizens are able to keep an eye on the actions of law enforcement shouldn’t depend on who signs an officer’s paycheck. Secrecy creates a system that is more susceptible to corruption and the violation of civil rights.”

Open disclosure in the criminal justice system — including access to both police and prosecutor work files from the point of arrest through post-conviction — is indeed a hallmark of a free society. Law enforcement and prosecutors who have not yet fully supported the practice and spirit of open records should follow the lead of Dallas District Attorney Craig Watkins and others. Providing transparency places them on the side of both truth and history.

3 responses to “Open Records Policies Shine Light on Misconduct, Injustice

  1. Nancy, This is an excellent article! Very much needed.

  2. Reblogged this on Sue Russell Writes and commented:
    A disturbing case out of Texas once again puts the spotlight on Open Records policies and how critical they are to justice. The case also highlights the perils of allowing jailhouse informants’ words to replace solid evidence. Dennis Lee Allen’s and Stanley Orson Mozee’s murder convictions were overturned last week after the two served 15 years in prison. They were convicted of the 1999 murder of Rev. Jesse Borns, Jr. The convictions were based on Mozee’s unrecorded – and immediately recanted – confession (he claims he was pressured to confess) and the word of two jailhouse informants. No DNA since tested ties either man to the murder.

    As Nancy Petro writes on the Wrongful Convictions Blog:
    “Law enforcement and prosecutors who have not yet fully supported the practice and spirit of open records should follow the lead of Dallas District Attorney Craig Watkins and others. Providing transparency places them on the side of both truth and history.”

    Amen to that.

  3. We need this spirit, which is lacking, in Arizona.

    “As Nancy Petro writes on the Wrongful Convictions Blog:
    “Law enforcement and prosecutors who have not yet fully supported the practice and spirit of open records should follow the lead of Dallas District Attorney Craig Watkins and others. Providing transparency places them on the side of both truth and history.”

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