‘Rules of the Game’

Jan 13, 2008  •  Post A Comment

It was during the course of a lengthy investigation into shoddy DNA and forensic work that would shut down the Houston Police Department’s crime lab—and cause ripples at crime labs throughout the nation—that KHOU-TV executive producer David Raziq encountered another powerful story with far-reaching implications, one for which he and investigative reporter Jeremy Rogalski will take home a duPont Award.
Entitled “Rules of the Game,” the six-minute piece detailed a Texas law that tilts the scales of justice in favor of the prosecution in criminal cases by allowing it to withhold from the defense, until trial, basic evidence that might point to someone’s innocence. Such exculpatory evidence might include police and lab reports and eyewitness accounts. As a result, attorneys’ ability to put on an effective defense has been crippled and innocent people have gone to jail.
“We talked to three dozen defense attorneys around Texas, former prosecutors in several counties and various legal experts. What emerged was a draconian story of law and justice in Texas,” said Mr. Rogalski.
“We expect a level playing field. It’s not the case in Texas. State law says the district attorney’s office holds all the cards and gets to show which ones it wants to show on the table. What’s happening, according to defense attorneys, is the deck is stacked against them,” he said.
The law, which is supposed to be trumped by the federal Brady law, is enforced in various ways in different counties throughout the state. In Harris County, where Houston is located, defense attorneys are sometimes—and sometimes not—allowed to review police, eyewitness and lab reports at the D.A.’s office, but are not allowed to make copies of what can be hundreds or even thousands of pages of documents. They are permitted only to take handwritten notes, and the notes cannot be verbatim.
“In some counties, the defense is not allowed to see any of this material during discovery. It only comes to light if the author of the document is on the witness stand,” explained Mr. Raziq.
In still other counties, the defense has access to all the D.A.’s evidence before trial, as is the case in most judicial systems across the U.S.—upholding the tenet of equal justice that defendants have the right to see all the evidence against them before trial.
Mr. Rogalski likened the situation of a defense attorney in Texas to a surgeon going into an operating room but not knowing what kind of surgery needed to be performed; he said attorneys often are placed in the position of digesting complicated reports during 20- to 30-minute court recesses and defending their clients on the fly.
He and Mr. Raziq hope the station’s report will bring about change, but they don’t discount the power of the prosecutors’ offices and the fact that most judges are former prosecutors.
“It’s business as usual and I don’t know why. It’s been this way for so long and it’s the way it’s done. I couldn’t believe I was in 21st-century America,” said Mr. Rogalski. “For whatever reason, I think there are people behind bars who are innocent. If they’re innocent, by default, a guilty person is walking free, and that’s a little scary.
“The defense says it should be about seeking the truth and not a game of hide the ball or dirty pool on an unlevel playing field. Equal justice is supposed to be about two opposing sides seeking the truth, based upon the facts as they are known.”
Credits: Jeremy Rogalski, reporter; Chris Henao, producer; Keith Tomshe, photojournalist and editor; David Raziq, executive producer for investigative reporting; Keith Connors, news director


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