Motion to Permit Interview of Susan Simmons

In the Criminal District Court No.3
Dallas County, Texas

MOTION TO PERMIT APPELLANT TO INTERVIEW SUSAN SIMMONS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW DARLIE LYNN ROUTIER, appellant/defendant in the above styled and numbered cause and files this her motion requesting the Court to permit her counsel to interview Susan Simmons. In support, appellant would show the following:

A.
INTRODUCTION

This is a motion for permission to do something that defense attorneys (as well as prosecuting attorneys) do in every criminal case every day of the week without consulting the court: interview a witness. Susan Simmons is the most important witness in this case. Counsel for the defendant have never attempted to question her outside of the presence of the prosecutor and the Court because the Court instructed the attorneys for both sides off-the-record that she was "off limits." The Court has fashioned unusual procedures for giving the lawyers some access to Simmons, but those procedures bear little resemblance to the ordinary methods that attorneys use to do their jobs in an adversarial system. Counsel have quietly acquiesced to those procedures because they believed that they would have an opportunity to question Simmons in the usual manner before they were asked to meet their burden of proving that her record cannot be lawfully used. It is now essential that counsel exercise their right and duty.

Counsel feel that they must take the precaution of asserting their right to freely interview Simmons on the record in a written motion because they fear that the record would be misleading otherwise. Any defense attorney who did not do all that he could to interview Simmons would be guilty of ineffective assistance and legal malpractice. Of course, that is not the case here. The truth is that counsel have tried to go the extra mile to accommodate the Court's wishes without prejudicing their client because this is such a sensitive, difficult, and high profile case. Counsel understand the Court's desire to avoid a "circus atmosphere" in a case where the original court reporter committed perjury to cover up her mistakes and caused such public questioning of the integrity of the Dallas County court system. However, counsel cannot sacrifice their client's freedom and life in the name of perceived decorum.

B.
SUMMARY OF THE UNRECORDED1 LEGALLY
UNAUTHORIZED RESTRICTIONS THAT THE COURT
IMPOSED ON COUNSEL'S ACCESS TO THE MOST
IMPORTANT WITNESS THROUGHOUT THESE
PROCEEDINGS.

1. At some point at or near the time of formal designation by this court that Susan Simmons would be the court reporter who would attempt to reconstruct the Halsey record, the Court, in chambers and off-the-record, advised the parties not to contact Simmons regarding her work in this case.

2. Subsequently, the protocol established by the Court for any hearing in which Simmons would testify was as follows:

a. The Court would interview Simmons and then advise the parties what her anticipated testimony would be;

b. Then the parties would be allowed to, presence of the Court and of each "interview" Simmons;

c. Over appellant's objection, the Court denied appellant's counsel the right to ask Simmons questions directly in the hearings in open court;

d. The parties were required to submit to the Court in writing any questions that they wanted the Court to ask of Simmons;

e. Following the Court's initial questioning of Simmons, the Court permitted the parties to suggest in the other, further questions for Simmons, again to be asked only by the Court.

3. Pursuant to prior order(s) of the Court, the appellant filed on March 2, 2000, her (1) Defendant-Appellant's Objections To The Proposed New Reporter's Record and (2) Defendant-Appellant's Request For An Evidentiary Hearing To Resolve All The Factual Disputes About The Reporter's Record.

4. The State filed its response to the pleadings of the appellant and, following the Court's consideration of the same, on June 23, 2000, a conference was held in chambers off-the-record between the Court and the parties.

5. During this conference, counsel for appellant asked for permission to interview Susan Simmons and the Court denied this request.

6. The Court further directed appellant to submit in writing the questions appellant proposed for Simmons in any further hearing(s) on the attempted reconstruction of the appellate record in this cause. Again, any such questions would be asked by the Court rather than appellant's counsel in any future hearing(s).

7. Appellant has previously submitted her proposed issues and questions to be answered in her pleadings of March 2nd

C.
THE TEXAS COURT OF CRIMINAL APPEALS HAS
STRONGLY CONDEMNED THE KIND OF JUDICIAL
INTERFERENCE WITH COUNSEL'S ACCESS TO A
MATERIAL WITNESS THAT THE COURT HAS IMPOSED IN
THIS CASE AND ANY ATTORNEY WHO ACQUIESCED TO
THOSE RESTRICTIONS WOULD BE GUILTY OF
INEFFECTIVE ASSISTANCE AND MALPRACTICE.

1. The prior testimony of Simmons, primarily in the form of responses to leading questions, together with appellant's independent review of Simmons' work product and evaluation of the applicable industry standards, has raised a multitude of questions that appellant must ask Simmons.

2. As is usually the case, it is foreseeable that there will be multiple follow-up questions once the initial responses are provided by Simmons. As is well-known by all those who are familiar with the adversary process, it is wholly impossible to set forth follow-up questions prior to hearing the answers to the initial questions.

3. The Court prohibition against appellant from Simmons is unjustified under the facts and the law.

4. Factually, there is nothing in the record (or off-the-record) that suggests that counsel will coerce, manipulate, threaten, or otherwise "abuse" Simmons so as to warrant this extraordinary order.

5. Legally, the Court's order restrains counsel's unqualified duty to render effective assistance of counsel. interviewing

6. "The right of reputable counsel to interview a witness has apparently been so rarely denied in American jurisprudence that we find very few cases on the subject." Leahv v State, 111 Tex.Crim. 874, 13 S.W.2d 874, 882 (1928). In Leahy a critical witness against the defendant was in jail and the sheriff had denied the defendant accessto this witness to interview him. The defendant sought relief from the court to order this access but the motion was denied.

The Court of Criminal Appeals posed the question to be answered as "whether the State can legally deny opportunity of interview to the accused or his counsel with a state's witness, or, put in another way, whether the state can, by the affirmative acts of its officers, prevent all contact between a prospective witness for the state and accused or his counsel." 13 S.W.2d at 881. In answering this question with an unqualified "no," the Court reasoned as follows:

By the terms of our state Constitution the accused is guaranteed the right of compulsory process for his witnesses. He is entitled to know the na~~s of the witnesses upon whose testimony the indictment was found. Article 392, C.C.P. When a witness has been served with process by one party, it shall inure to the benefit of the opposite party in case he should need said witness. Article 463, C.C.P. Copy of an indictment must be served on defendant in certain cases and delivered upon request in all cases. Articles 488 and 489, C.C.P. No arraignment shall take place until the expiration of at least two entire days after the day a copy of indictment was served on defendant, etc. Article 493, C.C.P. The clerk is required under penalty to issue subpoenas when and only when written application is made under oath setting out the names of the witnesses, their residence, etc. Article 103 P.C., and article 463, C.C.P. These various provisions evidence clearly an inten~ion to have a prosecution conducted fairly and in the open, with every opportunity given the accused to prepare for his trial. The law does not give to the state a proprietary interest in a witness which entitles it to his exclusive possession, for, by the terms of article 462 C.C.P., a witness under process is a witness for either or both sides. If an accused is to be denied all opportunity to talk to a witness, then the above compulsory process clause of the Constitution becomes in most part an empty and highsounding phrase. If the state can incarcerate a witness and prevent any chance of interview and opportunity to know in advance what such a one's testimony will be, it is in effect a nullification of the salutary provisions of the clause of the Constitution already referred to, as practically all of its benefits are thus destroyed. Such opportunity of interview would seem to be a necessary implication arising from the compulsory process clause above quoted. The right of reputable counsel to interview a witness has apparently been so rarely denied in American jurisprudence that we find very few cases on the subject.

Addressing himself to this question, Presiding Judge Dupois of the Rhode Island Supreme Court uses the following vigorous language:

"The attorney for the defendant not only had the right, but it was his plain duty towards his client, to fully investigate the case and to interview and examine as many as possible of the eye-witnesses to the assault in question, together with any other persons who might be able to assist him in ascertaining the truth concerning the event in controversy. Witnesses are not parties and should not be partisans; they do not belong to either side of the controversy; they may be summoned by one or the other or both, but are not retained by either. It would be a most unfortunate condition of affairs if a party to a suit, civil or criminal, should be permitted to monopolize the sources of evidence applicable to the case to use or not as might be deemed most advantageous.***The defendant, therefore, has the constitutional right to have compulsory process for obtaining witnesses to testify in his behalf, he has also the right either personally or by attorney to ascertain what their testimony will be." State v. Papa, 32 R.I. 459, 80 A. 15.

As illustrating the general attitude of the courts of other states toward the right of consultation with witnesses, we quote from decisions as follows:

"It was fatal error to refuse the defendant the privilege of conferring with his own witnesses, whether they were under the rule or not. This has been so held where his counsel were refused this right. White v. State, 52 Miss. 216; Allen v. State, 61 Miss. 627. And very much more is this so in reference to the defendant himself. The denial was an invasion of his constitutional right. It is often of vital importance that both defendant and his counsel should, together, confer with his witnesses in the progess (sic) of a trial. The right cannot be restricted except that the trial court may impose reasonable limitations as to the length of time of the conference." Shaw v. State, 79 Miss. 21, 30 So. 42.

"Where a material witness, and particularly as in this case, an accomplice, is incarcerated in jail and to that extent under the control of the prosecution, and the defendant makes application for leave to interview or question such witness in reference to his testimony, under all the facts shown here, the court should afford a reasonable opportunity for such purpose, and the denial of the request of the defendant was error." Exleton V. State, 30 Oki. Cr. 234, 235 P. 630.

"Whatever the popular notion may be, it is neither the duty nor the right of the State, acting through its public officers, to secure the c9nviction of orie of its citizens by any available means, fair or foul. The Constitution guarantees to every one accused of crime a fair and impartial trial (Art. 111, Sec. 16), and the state had no more right to deny defendant's counsel access to a witness material to the defense than it would have had to secrete the witness to prevent the defendant from using him, or to deny the defendant the right to process to compel the attendance of a witness, and defendant could not be required to call Felt to the witness stated without knowing in advance what his testimony would be." State V. Gangner, 73 Mont. 194, 235 P. 703.

The following language occurs in the case of Brown v. State, 3 Tex. App. 313: "It is the duty of attorneys to prepare and acquaint themselves with their cases by talking to the witnesses before the announcement for trial; and, if attorneys are appointed by the court to defend, it is the duty of the court to furnish them full opportunity and facility to converse with the witnesses, and make their necessary preparation before they are forced into trial; and this is especially the duty of the court in cases involving the grave issues of *882 the life or liberty of the citizen."

The right of an accused to have a fair opportunity *883 to prove his innocence is but the expression of a fundamental truth that has been given life and vitality by many provisions of modern law1 but which in reality is as ancient as the human desire for justice and fair dealing between men. It follows that we are of the opinion that [111 Tex.Crim. 589] appellant or his counsel were entitled to the opportunity of interviewing the Mexican, Martinez." 13 S.W.2d at 881-883.

7. It appears Leahv was a case of first impression inasmuch as the Court of Criminal Appeals had to reach out to other jurisdictions to find cases which addressed this issue. But even in 1929, when the Court felt it permissible to refer to the witness as "the Mexican," the Court came down strongly on the right of an accused to interview potential witnesses without State interference.

8. There remains a scarcity of published cases on this issue no doubt due to the obviousness of the answer. But in the event there remains any question as to the vitality of this ruling, the case of Stearns v. Clinton, 780 S.W.2d 216 (Tex.Crim.App. 1989) will remove any doubt. This case also calls in to question the authority of this Court to even issue an "order" prohibiting the interviewing of Simmons.

Stearns was a capital murder prosecution in Lubbock "county where the district attorney had a "rule" that defense attorney's could not interview a state's witness without permission. Counsel dutifully sought permission from the Crown but no response was forthcoming. Counsel then had the audacity to interview a witness anyway.

As a result of his sticking his neck out thusly, the State asked the trial court to remove counsel's head. The trial court cooperated by rescinding the defense counsel's status as court-appointed counsel and a new attorney was appointed to represent the defendant.

The case was before the Court of Criminal Appeals on a request for extraordinary relief, i.e., mandamus. The Court observed that the district attorney's "rule" of defense counsel's not contacting "its" witnesses was a nullity. The Court next reiterated that it is a defense counsel's dutv to investigate the facts of a case and its corollary that "...'counsel has a responsibility to seek out and interview potential witnesses ... and failure to do so is to be ineffective, if not incompetent' . ..," 780 S.W.2d at 224, citing Ex ~arte Duffey, 607 S.W.2d 507, 517 (Tex.Crim.App. 1980).

The Court found that the defense counsel was "between a rock and a hard place" in that he was removed as counsel because he interviewed a witness but could have been deemed incompetent if he had not interviewed the witness. "As a result of this dichotomy, [counsel's] effectiveness was rendered impotent." 780 S.W.2d at 224.

In conditionally granting mandamus relief, the Court further observed that "[flor this Court to acquiesce and condone such judicial behavior will surely encourage similar behavior and substantially encroaches on the honest good-faith efforts of appointed counsel to represent their client and present their cause, thereby putting the independence of the bar into jeopardy." 780 S.W.2d at 225.

9. Counsel's duty to investigate by interviewing witnesses can be string-cited but appellant's counsel would suggest starting with the following: Strickland v< Washington, 466 U.S. 668; Davis v. Alabama, 596 F.2d 1214 (5~ Cir. 1979); Harris v. Estelle, 487 F.2d 1293 (5~ Cir. 1974); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965);. Ex Darte Welborn, 785 S.W.2d 391 (Tex.Crim.App. 1990; Butler v. State, 716 S.W.2d 48 (Tek.Crim.App. 1986); Ex Darte Lilley, 656 S.W.2d 490 (Tex.Crim.App. 1983); Ex Darte Duffey, 607 S.W.2d 507 (Tex.Crim.App. 1980); and Flores v. State, 576 S.W.2d 632 (Tex.Crim.App. 1979).

10. The Court's directive for appellant's counsel not to speak to Simmons places counsel in the position of having to choose between acts of ineffectiveness, or, in the words of Steam, between a rock and a hard place. Among those choices are: (1) counsel can prepare potentially ill-considered questions or not have any questions asked at all; (2) counsel can agree to an impermissibly restrictive hearing or not have a hearing at all; or (3) counsel can exercise their duty to their client or their duty to abide by the Court's orders.

11. Counsel's position is untenable in the face of the Court's current order and this position will remain unchanged without counsel being allowed to proceed in a normal, routine manner in doing their assigned job as delineated by~the laws and Constitution of the United States. There is no factual rationale to the restriction on interviewing Simmons and no apparent legal authority either. As a result of this order, counsel for appellant, like counsel in Stearns, is rendered impotent.

WHEREFORE, PREMISES CONSIDERED, the appellant prays this Court to set this Motion for a hearing and following which the Court grant this Motion.s