Deferred Prosecution

 Legal Battle Won But War Ahead

Victim got a copy of record sought, but a second
lawsuit looms over new public information request

by Ken Martin
© The Austin Bulldog 2017
Part 9 in a Series
Posted Monday August 7, 2017 11:39pm
Updated Tuesday August 8, 2017 9:51am (to link to Settlement Agreement)

>The public information request that gave rise to a lawsuit in which Travis County Attorney David Escamilla sued Texas Attorney General Ken Paxton has been withdrawn. And with it the litigation over whether the County Attorney must provide the document at issue, as ordered in the AG’s open records ruling.

>The matter was put to rest when a Settlement Agreement was reached today that allowed the requestor to have an unredacted copy of the Deferred Prosecution Agreement (DPA) the County Attorney entered into with her abuser.

Escamilla declined to comment until a copy of the Settlement Agreement is filed. The Austin Bulldog filed a public information request for a copy of the Agreement and it was not immediately received. (It will be linked at the bottom of this story when obtained.)“We settled,” Austin attorney Bill Aleshire of Aleshire Law PC, told The Austin Bulldog in a telephone interview late yesterday.

The agreement requires the requestor not to publish or assist anyone in publishing the DPA. “But she may give it to her attorneys, counselor, or therapist. And it can be entered into any official court proceeding,” he said.

>The ability to enter a copy of the DPA into court proceeding is important because the requestor, Tara Coronado, is in a custody dispute with her abuser and former husband over whether one of her four children will be sent to an out-of-state boarding school.

>At the request of her attorney in that dispute, Coronado declined to personally comment on the Settlement Agreement.

One battle won, a war ahead

 Must Deferred Prosecution Deals be Secret?

County attorney denies victim of domestic
violence right to see deal her abuser got

by Ken Martin
© The Austin Bulldog 2017
Part 8 in a Series
Posted Wednesday July 5, 2017 1:59pm
Updated Wednesday July 5, 2017 2:55pm to add Coronado's statement about putting DPA online
Updated Wednesday July 5, 2017 3:40pm to strike incorrect sentence re: couldn't rely on previous determination
Updated Thursday July 6, 2017 10:08am to provide the correct blank form the county attorney uses for DPAs

The next stage in a legal battle over a prosecutor’s discretion to withhold certain records played out last Thursday in a state district court.

The Travis County Attorney’s Office and an intervenor in the county attorney’s lawsuit against the Texas Attorney General argued over which parts of the Texas Public Information Act (TPIA) would govern arguments when the matter goes to trial August 8.

“It’s prudent to give you a clear ruling on what’s going to trial,” Judge Lora Livingston of the 261^st District Court told the attorneys at the conclusion of the hearing, after listening to nearly two hours of arguments.

On Friday, Livingston ruled that plaintiff Travis County Attorney must limit arguments in favor of withholding a Deferred Prosecution Agreement (DPA) to the same grounds the county stated when it asked the Attorney General for a ruling.

A DPA is an agreement signed by the prosecutor, the defendant and the defendant’s attorney. It sets forth conditions that if met will result in dismissal of criminal charges. (More details about DPAs later.)

In its request for a ruling from the Attorney General (AG), the county cited only what’s commonly called the “law enforcement exception” contained in Section 552.108(a)(1):

“Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from (release) if: release of the information would interfere with the detection, investigation, or prosecution of crime.”

At Thursday’s hearing, Assistant County Attorney Tim Labadie argued that the county had not cited other sections of the Act because previous determinations by the AG had allowed the very same DPA to be withheld.

He asked the judge for permission to claim several other exceptions set forth under Sections 552.108(a)(2), 552.103, and 552.107.

The judge denied his request.

Attorney Bill Aleshire of Aleshire Law PC won the ruling by citing Section 552.326 which states, “the only exceptions to required disclosure … that a governmental body may raise in a suit filed under this chapter are exceptions that the governmental body properly raised before the attorney general in connection with a request for a decision regarding the matter….”

Why county sued the AG

 County Attorney Escamilla Wants to
Close the Courtroom, Seal Records

‘The Austin Bulldog’ intervenes to oppose
this unusual action to deny public access

by Ken Martin
© The Austin Bulldog 2017
Part 7 in a Series
Posted Friday February 25, 2017 12:21am
Updated Tuesday February 28, 2017 5:02pm to clarify Escamilla's statements (see underlined text)

To keep a Deferred Prosecution Agreement (DPA) from being obtained by a victim of domestic violence — and ensure that it isn’t widely disseminated — Travis County Attorney David Escamilla has taken the extraordinary step of requesting that a hearing be held in a closed courtroom and that the related exhibits, motions, and responses to be argued in court be sealed because they might make reference to the DPA.

The Austin Bulldog filed a petition February 21, 2016, to intervene and oppose the County Attorney’s petition.

Courts are rarely closed, except in some family law cases involving child custody. Honoring this principle provides transparency and accountability. It avoids courts being thought of pejoratively as a Star Chamber, the ancient English tribunal “established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would likely hesitate to convict them of their crimes.”

If the County Attorney’s petition is granted it would deny public access to courts, which is a cornerstone of our system of justice that is grounded in Texas law and the First Amendment, although this right is not absolute. Courts are sometimes closed to prevent dissemination of sensitive information to the public, such as matters dealing with attorney-client privilege, trade secrets, and matters of national security.

The Austin Bulldog’s motion states that the County Attorney’s petition to seal records fails to articulate — or to provide any evidence at all — of any “specific, serious and substantial interest which clearly outweighs” the presumption of openness of court records.

Attorney Bill Aleshire represents the Bulldog in this matter, citing in the motion Texas Rules of Civil Procedure 76a(3), which allows non-parties who pay a filing fee to intervene as a matter of right for the limited purpose or participating in proceedings.

“Trust in any governmental activity is enhanced with transparency,” said Aleshire, a former Travis County judge and before that tax assessor-collector. “And that trust is diminished with secrecy.  Why should any deals a prosecutor makes with any defendant be concealed from the public?  Is secrecy about prosecutor deals really in the public interest?  In this day of enhanced concerns about equal justice (e.g., Black Lives Matter) does secrecy about who gets what deal from a prosecutor enhance or diminish trust and respect for the criminal justice system?”

A hearing on the matter was originally scheduled for February 22. The hearing was rescheduled for March 8 after the County Attorney learned through The Austin Bulldog’s motion and Aleshire’s e-mails to him that the county had failed to comply with the requirement to post notice with the Clerk of the Supreme Court of Texas.

Why intervene?