SUNSHINE WEEK – DISTRICT ATTORNEYS
The District Attorney is a constitutional officer pursuant to Louisiana Constitution Article 5, Section 26. The District Attorneys responsibility is to “…represent the state in all civil actions, and shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand juries in his district, and be the legal advisor to the grand juries. He shall perform other duties provided by law.” He is sometimes termed “the peoples attorney”.
Prosecutors are also governed by special rules concerning professional misconduct which include: refraining from “prosecuting a charge that the prosecutor knows is not supported by probable cause” and “timely disclosure to the defense of all evidence or information…” which “…tends to negate the guilt of the accused or mitigate the offense…” The U.S. Supreme Court in its 1963 ruling, Brady v. Maryland, opined that the government’s withholding of evidence material to the determination of guilt or punishment violated the constitutional right to due process. This type of evidence is generally called exculpatory evidence and can include impeachment evidence that may impact the credibility of a law enforcement witness. Impeachment evidence could be evidence that demonstrates bias or prejudice against a party, motive for fabrication of testimony, poor reputation for truthfulness, past incidents of untruthfulness, prior inconsistent statements, officer presently under suspension, demonstrates the officer has misidentified a suspect in another case, sustains claims of excessive force (if that is an issue in the matter at hand) or supports misconduct in the handling of the defendant’s case.
Some of our requests were aimed at gauging just how proactive District Attorneys are at soliciting, gathering and documenting Brady material from Law Enforcement Agencies. Based on the information provided, very few District Attorneys’ Offices seem to be regularly soliciting Brady material or maintaining a list of officers who may be unreliable or impeachable as a witness. Some District Attorneys objected to our request citing an exemption to the public records law dealing with “records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated”. While we certainly recognize the purpose of this exemption under the law is to protect the integrity of ongoing criminal investigations, our requests were merely aimed at “list” that are maintained or “communication” to solicit information from Law Enforcement Agencies. Others claim it would be “unreasonably burdensome” to respond to our request because they would manually have to search for the information in their offices – information which should readily be getting disclosed to defendants.
While most District Attorneys were cooperative with our endeavor to seek out and evaluate public documents there is one worthy of mention. Upon receipt of our requests one District Attorney indicated: “Our office requires you personally appear to request records.” When questioned about the statutory authority and asked to provide the appropriate response he replied: “I’m not your law clerk. Look it up.”
Even more frightening was the claim from one District Attorney that he was informed by office staff that a Brady list existed prior to him becoming District Attorney. However, sometime between him winning the election and taking office his predecessor allegedly engaged in an arduous effort of discarding records for a period of up to six weeks. Now the office is unable to locate the “Brady list.”
Did you know?
A particular format is not required to request a public record. Public records request may be made in person, submitted by e-mail, mail, fax or through an online portal, if available.
Apparently the District Attorney mentioned above didn’t know. Or didn’t care!!!
DISTRICT ATTORNEYS: (Louisiana Constitution Article 5, Section 26)
The following five requests were sent to each District Attorney in the state.
- Current or most recent Brady list maintained by the District Attorney’s Office OR IN THE ALTERNATIVE, if a Brady list doesn’t exist any and all files or documents maintained pursuant to your obligations under Brady, including but not limited to electronically stored information.
- Any and all communication sent during the period of time of January 1, 2021 through December 31, 2021 to law enforcement agencies seeking out relevant Brady material.
- Individual appointment calendar of the District Attorney for the period of time of January 1, 2022 through January 31, 2022, including but not limited to: traditional hard copy calendars and electronically stored information on cell phone(s), computer(s) and/or other electronic devices.
- Expenses reports or listing of expense reimbursements for District Attorney for the period of time of January 1, 2022 through January 31, 2022 OR IN THE ALTERNATIVE; any and all documents of expense reimbursements for District Attorney for the period of time of January 1, 2022 through January 31, 2022.
- Compensation received by the District Attorney for the calendar year of January 1, 2021 through December 31, 2021, including but not limited to salary, salary augmentation, stipends, vehicle subsidies, cell phone subsidies, insurance benefits, etc.
The District Attorneys were then graded based on ten objective factors with each being worth one point, for a maximum score of ten points. Below is how the governing bodies ranked after the passage of at least thirty days from the date of the request.
Have the public bodies made information regarding how to request public records readily available and easy to find (i.e. website, etc.)?
- 14% 14%
Did the public bodies acknowledge the receipt of the public records request or provide any exemptions within three days?
- 52% 52%
Did the public bodies produce the records for inspection or provide an estimate of time reasonably necessary for production within five days of the request?
- 24% 24%
Did the public bodies accept the e-mailed requests without a demand that it be presented on a particular form, in a particular format or submitted in an alternative fashion?
- 94% 94%
Did the public bodies accept the request without demanding that a state issued identification card be provided?
- 83% 83%
Did the public bodies refrain from inquiring about the purpose of the requests?
- 89% 89%
Did the public bodies respond without employing an attorney to respond?
- 94% 94%
Were the records or information made available free of charge and/or without a request for a deposit?
- 76% 76%
Were the records or information made available by electronic means or did the custodian indicate the records could be copied using a portable scanning device?
- 76% 76%
Were the records provided by the public bodies responsive to the requests and of good quality?
- 76% 76%