A number of municipalities have been subpoenaed for records that the criminal defense bar suspect the DA is not providing. The cities have claimed that this is an abuse of the criminal discovery process. See the link.

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PR-2018-1282&cmid=125510

More recently, the criminal defense bar has started filing open record act requests for the same material. This not only is something that effectively transfers the costs of prosecution and defense from the actual litigants to the city, but actually increases the costs because an ORA request requires more material be redacted (e.g. the faces of juveniles from all video, soc. Sec. #s, etc.) At least a subpoena already has a case and a judge involved, whereas the ORA likely would require a contest to generate any entirely new case and fees.

Ponca City has a Senator and a House member who are going to bring corrective legislation in the next session. They will be requesting a bill number next week - so I do not have that at the moment.

In any event, I thought you needed to know.

Mike Vanderburg
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, please destroy the message and contact the sender to report the email error.  The message and its attachments may not be copied, shared, distributed, or used in any manner by anyone other than the intended recipient.  The receipt of this email does not create an attorney client relationship, unless that relationship already exists independent of this email.
If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at vandemr@poncacityok.govmailto:vandemr@poncacityok.gov or by telephone at 580 767 0337 and destroy the original transmission and its attachments without reading them or saving them to disk. This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally privileged.
Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337

We also have another ORA case that involves this issue.  In Fabian & Associates v. City of Norman, et al.,, Case No. CV-2013-1388 LW, and Fabian & Associates v. City of Norman, Case No. CV-2017-1931 JV, the court ruled that police investigative reports and unsworn witness statements are work product that are exempt from public inspection and copying under the ORA.  See 51 O.S. § 24A.5(1)(a) ("[t]he Oklahoma Open Records Act, Sections 24A.1 through 24A.30 of this title, does not apply to records specifically required by law to be kept confidential including:  a. records protected by a state evidentiary privilege such as the attorney-client privilege, the work product immunity from discovery and the identity of informer privileges[.]"); Nauni v. State, 1983 OK CR 136, ¶ 31, 670 P.2d 126, 133 ("[u]nsworn statements of prosecution witnesses are considered to fall within the work-product privilege and are not discoverable.  This privilege extends as well to police investigative reports.") (citation omitted).

In Nauni, the Court further observed that "while the work-product privilege may not be applied in derogation of a criminal defendant's constitutional rights to disclosure of evidence favorable to the defendant, such evidence must be material to either guilt or to punishment before it is discoverable."  Nauni, 1983 OK CR 136 at ¶ 31, 670 P.2d at 133.  In my opinion, the duty to disclose evidence favorable to the defendant lies with the prosecutor because the municipality has no idea what is or is not favorable to the defendant.  While the decisions in the Fabian cases were not appealed, the argument may be useful before other judges.

Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
'  405.217.7700 | 6 405.366-5425 | * rick.knighton@normanok.govmailto:rick.knighton@normanok.gov | þ www.normanok.govhttp://www.normanok.gov/

This e-mail is the property of the City Attorney's office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.

From: Oama oama-bounces@lists.imla.org On Behalf Of Michael R. Vanderburg
Sent: Tuesday, December 10, 2019 3:30 PM
To: oama@lists.imla.org; Kathryn Walker Kathryn.Walker@NormanOK.gov; Steve Murdock (Steve.Murdock@edmondok.com) Steve.Murdock@edmondok.com; David Weatherford (davidweatherford17@gmail.com) davidweatherford17@gmail.com; david@widdoeslaw.com; bryceland@suddenlinkmail.com; Sue Ann Nicely sanicely@oml.org; 'Beth Anne Childs (bethanne@thechildsfirm.com)' bethanne@thechildsfirm.com; 'O'Meilia, David' DOMeilia@cityoftulsa.org; 'Michael Beason' mbeason@altusok.gov
Subject: EXTERNAL EMAIL : [Oama] criminal discovery and open records act requests

A number of municipalities have been subpoenaed for records that the criminal defense bar suspect the DA is not providing. The cities have claimed that this is an abuse of the criminal discovery process. See the link.

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PR-2018-1282&cmid=125510

More recently, the criminal defense bar has started filing open record act requests for the same material. This not only is something that effectively transfers the costs of prosecution and defense from the actual litigants to the city, but actually increases the costs because an ORA request requires more material be redacted (e.g. the faces of juveniles from all video, soc. Sec. #s, etc.) At least a subpoena already has a case and a judge involved, whereas the ORA likely would require a contest to generate any entirely new case and fees.

Ponca City has a Senator and a House member who are going to bring corrective legislation in the next session. They will be requesting a bill number next week - so I do not have that at the moment.

In any event, I thought you needed to know.

Mike Vanderburg
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, please destroy the message and contact the sender to report the email error.  The message and its attachments may not be copied, shared, distributed, or used in any manner by anyone other than the intended recipient.  The receipt of this email does not create an attorney client relationship, unless that relationship already exists independent of this email.
If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at vandemr@poncacityok.govmailto:vandemr@poncacityok.gov or by telephone at 580 767 0337 and destroy the original transmission and its attachments without reading them or saving them to disk. This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally privileged.
Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337

Thank you for the knowledge of both the prospective litigation and the Fabian cases.  There is a particular firm that routinely files an ORA request as soon as they are retained in an effort to get the police records.  For your information, we have an unpublished decision in Canadian County where a law firm sued the City alleging an ORA violation.  The City prepared a short narrative in its records providing the specific information set forth in 25 O.S. § 24A.8(A), and then prepared a lengthier narrative for internal purposes.  The law firm claimed that the City was obligated to provide the lengthier narrative in response to its ORA request.  The Canadian County judge (a former ADA) ruled that the City complied with the ORA and granted summary judgment.  The decision was not appealed.

Jonathan E. Miller
City Attorney
City of Mustang
P.O. Box 850854
Yukon, Oklahoma  73085
Telephone: (405) 938-9108

This message is sent by a lawyer and may contain information that is privileged or confidential.  If you received this transmission in error, please notify the sender by reply e-mail and delete this message and any attachments.  This e-mail is intended for the addressee(s) only, and may not be distributed to any other person without written consent of the sender.

From: Oama oama-bounces@lists.imla.org On Behalf Of Rick Knighton
Sent: Tuesday, December 10, 2019 4:34 PM
To: 'Michael R. Vanderburg' vandemr@poncacityok.gov; oama@lists.imla.org; Kathryn Walker Kathryn.Walker@NormanOK.gov; Steve Murdock (Steve.Murdock@edmondok.com) Steve.Murdock@edmondok.com; David Weatherford (davidweatherford17@gmail.com) davidweatherford17@gmail.com; david@widdoeslaw.com; bryceland@suddenlinkmail.com; Sue Ann Nicely sanicely@oml.org; 'Beth Anne Childs (bethanne@thechildsfirm.com)' bethanne@thechildsfirm.com; 'O'Meilia, David' DOMeilia@cityoftulsa.org; 'Michael Beason' mbeason@altusok.gov
Subject: Re: [Oama] criminal discovery and open records act requests

We also have another ORA case that involves this issue.  In Fabian & Associates v. City of Norman, et al.,, Case No. CV-2013-1388 LW, and Fabian & Associates v. City of Norman, Case No. CV-2017-1931 JV, the court ruled that police investigative reports and unsworn witness statements are work product that are exempt from public inspection and copying under the ORA.  See 51 O.S. § 24A.5(1)(a) ("[t]he Oklahoma Open Records Act, Sections 24A.1 through 24A.30 of this title, does not apply to records specifically required by law to be kept confidential including:  a. records protected by a state evidentiary privilege such as the attorney-client privilege, the work product immunity from discovery and the identity of informer privileges[.]"); Nauni v. State, 1983 OK CR 136, ¶ 31, 670 P.2d 126, 133 ("[u]nsworn statements of prosecution witnesses are considered to fall within the work-product privilege and are not discoverable.  This privilege extends as well to police investigative reports.") (citation omitted).

In Nauni, the Court further observed that "while the work-product privilege may not be applied in derogation of a criminal defendant's constitutional rights to disclosure of evidence favorable to the defendant, such evidence must be material to either guilt or to punishment before it is discoverable."  Nauni, 1983 OK CR 136 at ¶ 31, 670 P.2d at 133.  In my opinion, the duty to disclose evidence favorable to the defendant lies with the prosecutor because the municipality has no idea what is or is not favorable to the defendant.  While the decisions in the Fabian cases were not appealed, the argument may be useful before other judges.

Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
'  405.217.7700 | 6 405.366-5425 | * rick.knighton@normanok.govmailto:rick.knighton@normanok.gov | þ www.normanok.govhttp://www.normanok.gov/

This e-mail is the property of the City Attorney's office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.

From: Oama <oama-bounces@lists.imla.orgmailto:oama-bounces@lists.imla.org> On Behalf Of Michael R. Vanderburg
Sent: Tuesday, December 10, 2019 3:30 PM
To: oama@lists.imla.orgmailto:oama@lists.imla.org; Kathryn Walker <Kathryn.Walker@NormanOK.govmailto:Kathryn.Walker@NormanOK.gov>; Steve Murdock (Steve.Murdock@edmondok.commailto:Steve.Murdock@edmondok.com) <Steve.Murdock@edmondok.commailto:Steve.Murdock@edmondok.com>; David Weatherford (davidweatherford17@gmail.commailto:davidweatherford17@gmail.com) <davidweatherford17@gmail.commailto:davidweatherford17@gmail.com>; david@widdoeslaw.commailto:david@widdoeslaw.com; bryceland@suddenlinkmail.commailto:bryceland@suddenlinkmail.com; Sue Ann Nicely <sanicely@oml.orgmailto:sanicely@oml.org>; 'Beth Anne Childs (bethanne@thechildsfirm.commailto:bethanne@thechildsfirm.com)' <bethanne@thechildsfirm.commailto:bethanne@thechildsfirm.com>; 'O'Meilia, David' <DOMeilia@cityoftulsa.orgmailto:DOMeilia@cityoftulsa.org>; 'Michael Beason' <mbeason@altusok.govmailto:mbeason@altusok.gov>
Subject: EXTERNAL EMAIL : [Oama] criminal discovery and open records act requests

A number of municipalities have been subpoenaed for records that the criminal defense bar suspect the DA is not providing. The cities have claimed that this is an abuse of the criminal discovery process. See the link.

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PR-2018-1282&cmid=125510

More recently, the criminal defense bar has started filing open record act requests for the same material. This not only is something that effectively transfers the costs of prosecution and defense from the actual litigants to the city, but actually increases the costs because an ORA request requires more material be redacted (e.g. the faces of juveniles from all video, soc. Sec. #s, etc.) At least a subpoena already has a case and a judge involved, whereas the ORA likely would require a contest to generate any entirely new case and fees.

Ponca City has a Senator and a House member who are going to bring corrective legislation in the next session. They will be requesting a bill number next week - so I do not have that at the moment.

In any event, I thought you needed to know.

Mike Vanderburg
CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, please destroy the message and contact the sender to report the email error.  The message and its attachments may not be copied, shared, distributed, or used in any manner by anyone other than the intended recipient.  The receipt of this email does not create an attorney client relationship, unless that relationship already exists independent of this email.
If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify us by reply e-mail at vandemr@poncacityok.govmailto:vandemr@poncacityok.gov or by telephone at 580 767 0337 and destroy the original transmission and its attachments without reading them or saving them to disk. This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally privileged.
Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337

Folks:

I wanted to take a moment to answer the question concerning a subpoena
issued to a municipality. As a criminal defense attorney, I have a certain
bias in this area. It offends me that the police would want to keep a matter
confidential or private but freely discuss it with the prosecution and
hiding from the defense.

In my practice, I understand that the state courts have found that I cannot
subpoena information directly from the police department to my office.
However, it is clear that I can subpoena the records custodian to come to
court and bring with them what documents I have requested. From the
perspective of a city, I would think that this would be an inconvenience. In
my own practice, I would tend to subpoena the records custodian (chief of
police) along with the officer that I believe completed the report and make
them come to court at a status hearing. When that is necessary, I will tend
to wait until the end of the docket to collect information from the police
department in order to allow them to waste as much time as possible since
they wasted my time. In the event they choose not to attend, my practice is
to issue a contempt citation against the police chief and the officer and
seek to have them incarcerated for six months.

I would suggest that the better practice would be to make a complete copy of
the file and provide to defense counsel the same information provided to the
defense. In many instances, I have found that the information provided to
the state is lacking a great deal of the information contained in the file
which should have been provided to both parties.

I offer this not as an opinion as a defense attorney or to benefit the
defense, or even to ensure fairness as it is anticipated our criminal
justice system, but in an effort to decrease the cost to the municipalities
that are often the arresting agency in the District Court case. The Oklahoma
Court of Criminal Appeals has set a number of times that hot the game of
hide and seek will not be tolerated. There is no reason why municipalities
should engage in such a game. However, myself and many of my colleagues, or
more than happy to increase that cost as much is possible by forcing the
attendance of the officers in question to court for a meaningless docket to
do nothing more than to present us with the evidence and information to
which we would otherwise have a right to. The prosecution cannot be trusted
to turn over that information and likewise the police can also not be
trusted (as has been noted a number of times in Supreme Court decisions) to
turn over that information without prompting from the defense.  Contrary to
the earlier posting, I would urge the counsel for municipalities that are
reading this to conduct themselves accordingly. In the event that arrests
are made and referred to District Court, you would seem that a complete copy
should be made for defense counsel at the same time is made for the
prosecution.

Sincerely,

John M. Dunn

Attorney at Law

616 S. Main, Suite 206

Tulsa, OK  74119

(918) 526-8000

410 E. Cimarron, Suite 1

PO Box 1362

Mannford, OK  74044

(918) 865-8030

From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Michael R.
Vanderburg
Sent: Tuesday, December 10, 2019 3:30 PM
To: oama@lists.imla.org; 'Kathryn Walker'; Steve Murdock
(Steve.Murdock@edmondok.com); David Weatherford
(davidweatherford17@gmail.com); david@widdoeslaw.com;
bryceland@suddenlinkmail.com; Sue Ann Nicely; 'Beth Anne Childs
(bethanne@thechildsfirm.com)'; 'O'Meilia, David'; 'Michael Beason'
Subject: [Oama] criminal discovery and open records act requests

A number of municipalities have been subpoenaed for records that the
criminal defense bar suspect the DA is not providing. The cities have
claimed that this is an abuse of the criminal discovery process. See the
link.

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate
<https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PR
-2018-1282&cmid=125510> &number=PR-2018-1282&cmid=125510

More recently, the criminal defense bar has started filing open record act
requests for the same material. This not only is something that effectively
transfers the costs of prosecution and defense from the actual litigants to
the city, but actually increases the costs because an ORA request requires
more material be redacted (e.g. the faces of juveniles from all video, soc.
Sec. #s, etc.) At least a subpoena already has a case and a judge involved,
whereas the ORA likely would require a contest to generate any entirely new
case and fees.

Ponca City has a Senator and a House member who are going to bring
corrective legislation in the next session. They will be requesting a bill
number next week – so I do not have that at the moment.

In any event, I thought you needed to know.

Mike Vanderburg

CONFIDENTIALITY NOTICE: This e-mail transmission, and any documents, files
or previous e-mail messages attached to it, may contain confidential
information that is legally privileged. If you are not the intended
recipient, please destroy the message and contact the sender to report the
email error.  The message and its attachments may not be copied, shared,
distributed, or used in any manner by anyone other than the intended
recipient.  The receipt of this email does not create an attorney client
relationship, unless that relationship already exists independent of this
email.

If you are not the intended recipient, or a person responsible for
delivering it to the intended recipient, you are hereby notified that any
disclosure, copying, distribution or use of any of the information contained
in or attached to this message is STRICTLY PROHIBITED. If you have received
this transmission in error, please immediately notify us by reply e-mail at
mailto:vandemr@poncacityok.gov vandemr@poncacityok.gov or by telephone at
580 767 0337 and destroy the original transmission and its attachments
without reading them or saving them to disk. This email is covered by the
Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521 and is legally
privileged.

Michael R. Vanderburg

City Attorney for Ponca City, OK.

516 E. Grand Ave.

Ponca City, OK 74602-1450

580 767 0337

It offends me that the police would want to keep a matter confidential or private but freely discuss it with the prosecution and hiding from the defense.

Criminal defendants can plead the 5th and cannot be compelled to discuss their case with the police or the prosecution.  The cases we cited in support of our request for a writ of prohibition in City v. Brockman hold that one of the reasons discovery is limited in criminal cases is the Fifth Amendment shields defendants from discovery.  See Campbell v. Eastland, 307 F.2d 478, 487 n. 12 (5th Cir.1962), cert. denied 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963) ("the self-incrimination privilege would effectively block any attempts to discover from the defendant, he would retain the opportunity to surprise the prosecution whereas the state would be unable to obtain additional facts. This procedural advantage over the prosecution is thought to be undesirable in light of the defendant's existing advantages.")

In my practice, I understand that the state courts have found that I cannot subpoena information directly from the police department to my office. However, it is clear that I can subpoena the records custodian to come to court and bring with them what documents I have requested. From the perspective of a city, I would think that this would be an inconvenience.  In my own practice, I would tend to subpoena the records custodian (chief of police) along with the officer that I believe completed the report and make them come to court at a status hearing.  When that is necessary, I will tend to wait until the end of the docket to collect information from the police department in order to allow them to waste as much time as possible since they wasted my time. In the event they choose not to attend, my practice is to issue a contempt citation against the police chief and the officer and seek to have them incarcerated for six months.

The practice of waiting until the end of the docket to request information subpoena from a law enforcement agency is exactly why discovery in criminal cases is limited.  Another reason discovery is limited in criminal cases is to protect potential witness from harassment and intimidation.  Id.  Waiting until the end of a docket to collect information from a witness in order to waste as much time as possible is harassment.

I would suggest that the better practice would be to make a complete copy of the file and provide to defense counsel the same information provided to the defense. In many instances, I have found that the information provided to the state is lacking a great deal of the information contained in the file which should have been provided to both parties.

I would suggest that the better practice is to request discovery from the state and ask the court to specify the time, place and manner of making the discovery and may prescribe such terms and conditions as are just.  Why is this process not adequate?  And if the details that are lacking involve police investigative reports and unsworn witness statements, these items are not discoverable.  See Nauni v. State, 1983 OK CR 136, ¶ 31, 670 P.2d 126, 133 ("[u]nsworn statements of prosecution witnesses are considered to fall within the work-product privilege and are not discoverable.  This privilege extends as well to police investigative reports.") (citation omitted).

I offer this not as an opinion as a defense attorney or to benefit the defense, or even to ensure fairness as it is anticipated our criminal justice system, but in an effort to decrease the cost to the municipalities that are often the arresting agency in the District Court case. The Oklahoma Court of Criminal Appeals has set a number of times that hot the game of hide and seek will not be tolerated. There is no reason why municipalities should engage in such a game.  However, myself and many of my colleagues, or more than happy to increase that cost as much is possible by forcing the attendance of the officers in question to court for a meaningless docket to do nothing more than to present us with the evidence and information to which we would otherwise have a right to.  The prosecution cannot be trusted to turn over that information and likewise the police can also not be trusted (as has been noted a number of times in Supreme Court decisions) to turn over that information without prompting from the defense.  Contrary to the earlier posting, I would urge the counsel for municipalities that are reading this to conduct themselves accordingly. In the event that arrests are made and referred to District Court, you would seem that a complete copy should be made for defense counsel at the same time is made for the prosecution.

Not quite sure how municipalities are engaging in a game of hide and seek.  The criminal discovery code entitles a defendant to law enforcement reports made in connection with the particular case and can ask the trial court to specify the time, place and manner of making the discovery and may prescribe such terms and conditions as are just.  However, instead of petitioning the legislature to broaden the scope of discovery in criminal cases, defense attorney intend to harass municipalities by wasting their time and increasing costs as much as possible.  As similar threat was made in response to the Court of Criminal Appeals decision in City of Norman v. Brockman.  It has yet to materialize.  If it does, I now know what I should argue.
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
'  405.217.7700 | 6 405.366.5425 | * rick.knighton@normanok.govmailto:rick.knighton@normanok.gov | þ www.normanok.govhttp://www.normanok.gov/

This e-mail is the property of the City Attorney's office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.

From: Oama oama-bounces@lists.imla.org On Behalf Of John Dunn
Sent: Sunday, December 15, 2019 4:20 PM
To: 'Michael R. Vanderburg' vandemr@poncacityok.gov; oama@lists.imla.org; Kathryn Walker Kathryn.Walker@NormanOK.gov; 'Steve Murdock' Steve.Murdock@edmondok.com; 'David Weatherford' davidweatherford17@gmail.com; david@widdoeslaw.com; bryceland@suddenlinkmail.com; 'Sue Ann Nicely' sanicely@oml.org; 'Beth Anne Childs' bethanne@thechildsfirm.com; 'O'Meilia, David' DOMeilia@cityoftulsa.org; 'Michael Beason' mbeason@altusok.gov
Subject: EXTERNAL EMAIL : Re: [Oama] criminal discovery and open records act requests

Folks:
I wanted to take a moment to answer the question concerning a subpoena issued to a municipality. As a criminal defense attorney, I have a certain bias in this area. It offends me that the police would want to keep a matter confidential or private but freely discuss it with the prosecution and hiding from the defense.

In my practice, I understand that the state courts have found that I cannot subpoena information directly from the police department to my office. However, it is clear that I can subpoena the records custodian to come to court and bring with them what documents I have requested. From the perspective of a city, I would think that this would be an inconvenience. In my own practice, I would tend to subpoena the records custodian (chief of police) along with the officer that I believe completed the report and make them come to court at a status hearing. When that is necessary, I will tend to wait until the end of the docket to collect information from the police department in order to allow them to waste as much time as possible since they wasted my time. In the event they choose not to attend, my practice is to issue a contempt citation against the police chief and the officer and seek to have them incarcerated for six months.

I would suggest that the better practice would be to make a complete copy of the file and provide to defense counsel the same information provided to the defense. In many instances, I have found that the information provided to the state is lacking a great deal of the information contained in the file which should have been provided to both parties.

I offer this not as an opinion as a defense attorney or to benefit the defense, or even to ensure fairness as it is anticipated our criminal justice system, but in an effort to decrease the cost to the municipalities that are often the arresting agency in the District Court case. The Oklahoma Court of Criminal Appeals has set a number of times that hot the game of hide and seek will not be tolerated. There is no reason why municipalities should engage in such a game. However, myself and many of my colleagues, or more than happy to increase that cost as much is possible by forcing the attendance of the officers in question to court for a meaningless docket to do nothing more than to present us with the evidence and information to which we would otherwise have a right to. The prosecution cannot be trusted to turn over that information and likewise the police can also not be trusted (as has been noted a number of times in Supreme Court decisions) to turn over that information without prompting from the defense.  Contrary to the earlier posting, I would urge the counsel for municipalities that are reading this to conduct themselves accordingly. In the event that arrests are made and referred to District Court, you would seem that a complete copy should be made for defense counsel at the same time is made for the prosecution.

Sincerely,

John M. Dunn
Attorney at Law
616 S. Main, Suite 206
Tulsa, OK  74119
(918) 526-8000

410 E. Cimarron, Suite 1
PO Box 1362
Mannford, OK  74044
(918) 865-8030

From: Oama [mailto:oama-bounces@lists.imla.org] On Behalf Of Michael R. Vanderburg
Sent: Tuesday, December 10, 2019 3:30 PM
To: oama@lists.imla.orgmailto:oama@lists.imla.org; 'Kathryn Walker'; Steve Murdock (Steve.Murdock@edmondok.commailto:Steve.Murdock@edmondok.com); David Weatherford (davidweatherford17@gmail.commailto:davidweatherford17@gmail.com); david@widdoeslaw.commailto:david@widdoeslaw.com; bryceland@suddenlinkmail.commailto:bryceland@suddenlinkmail.com; Sue Ann Nicely; 'Beth Anne Childs (bethanne@thechildsfirm.commailto:bethanne@thechildsfirm.com)'; 'O'Meilia, David'; 'Michael Beason'
Subject: [Oama] criminal discovery and open records act requests

A number of municipalities have been subpoenaed for records that the criminal defense bar suspect the DA is not providing. The cities have claimed that this is an abuse of the criminal discovery process. See the link.

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PR-2018-1282&cmid=125510

More recently, the criminal defense bar has started filing open record act requests for the same material. This not only is something that effectively transfers the costs of prosecution and defense from the actual litigants to the city, but actually increases the costs because an ORA request requires more material be redacted (e.g. the faces of juveniles from all video, soc. Sec. #s, etc.) At least a subpoena already has a case and a judge involved, whereas the ORA likely would require a contest to generate any entirely new case and fees.

Ponca City has a Senator and a House member who are going to bring corrective legislation in the next session. They will be requesting a bill number next week - so I do not have that at the moment.

In any event, I thought you needed to know.

Mike Vanderburg
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Michael R. Vanderburg
City Attorney for Ponca City, OK.
516 E. Grand Ave.
Ponca City, OK 74602-1450
580 767 0337