                                               WR-80,923-02
                                 COURT OF CRIMINAL APPEALS
                                                 AUSTIN, TEXAS
                               Transmitted 4/21/2015 12:31:21 PM
                                  Accepted 4/21/2015 1:11:20 PM
                                                  ABEL ACOSTA
                                                          CLERK




            EXHIBIT D


Transcript on Motion for Disclosure of
              Trial Files
                                                               1




 1                       REPORTER'S RECORD

 2                   VOLUME 3 OF _____ VOLUMES

 3              TRIAL COURT CAUSE NO. W-F09-00409-Y

 4                              ) IN THE CRIMINAL DISTRICT
                                )
 5   EX PARTE RODERICK HARRIS   ) COURT NUMBER 7 OF
                                )
 6                              ) DALLAS COUNTY, TEXAS

 7

 8         _____________________________________________

 9                     MOTION FOR DISCLOSURE
           _____________________________________________
10

11

12        On the 26th day of March, 2015, the following

13   proceedings came on to be heard in the above-titled and

14   numbered cause before the Honorable Elizabeth D. Frizell,

15   Judge Presiding, held in Dallas, Dallas County, Texas.

16        Proceedings reported by computerized stenotype

17   machine.

18

19              VEARNEAS W. FAGGETT, TEXAS CSR #3129

20                    Official Court Reporter

21                 Criminal District Court No. 7

22                          214.739.3906

23

24

25
                                                   2




 1                     A P P E A R A N C E S

 2   MS. SHELLY O'BRIEN YEATTS
     SBOT NO. 24033487
 3   MS. REBECCA OTT
     SBOT NO. 24074842
 4   MS. JACLYN O'CONNOR LAMBERT
     SBOT NO. 24049262
 5   Assistant District Attorneys
     HONORABLE SUSAN HAWK
 6   CRIMINAL DISTRICT ATTORNEY OF DALLAS COUNTY
     133 North Riverfront Boulevard
 7   Dallas, Texas 75207
     Telephone: 214.653.3600
 8   Attorneys for State of Texas

 9

10   MR. ROBERT ROMIG
     SBOT NO. 24060317
11   MR. JEREMY SCHEPERS
     SBOT NO. 24084578
12   MR. BRAD D. LEVENSON
     SBOT NO. 24073411
13   OFFICE OF CAPITAL WRITS
     1700 N. Congress Ave., Ste. 460
14   Austin, Texas 78711
     Telephone: 512.463.8522
15   Attorneys for Defendant

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 1                           I N D E X

 2   MARCH 26, 2015                                    PAGE VOL

 3   Proceedings ...................................     5   3

 4   Defense Motion for Access to DA file withdrawn.     6   3

 5   State Motion for Access to Dr. Reed's report ..     6   3

 6   State Motion for Roderick Harris Trial Files ..    23   3

 7   Reporter's Certificate ........................    42   3

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 1                E X H I B I T    I N D E X

 2

 3   (No exhibits were offered or admitted in this volume)

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                                                                      5




 1                        P R O C E E D I N G S

 2                    (March 26, 2015)

 3                    THE COURT:     We are on the record in

 4   Ex Parte Roderick Harris, Cause Number W-09-00409, and

 5   State's attorneys and Defense attorneys are here.          If you

 6   all would just go from my right to your left and state

 7   your names.

 8                    MS. YEATTS:     Shelly Yeatts for the State,

 9   Your Honor.

10                    MS. OTT:     Rebecca Ott for the State.

11                    MS. LAMBERT:     Jaclyn Lambert for the

12   State.

13                    MR. LEVENSON:     Brad Levenson from the

14   Office of Capital Writs.

15                    MR. ROMIG:     Robert Romig from the Office

16   of Capital Writs.

17                    MR. SCHEPERS:     Jeremy Schepers, Office of

18   Capital Writs.

19                    THE COURT:     Okay.   And I have two motions

20   to consider today.     State's Motion for Disclosure of

21   Roderick Harris' trial files as well as the State's

22   Motion for Access to Dr. Christine Reed's psychological

23   evaluation.   And, State, you may proceed.

24                    MS. YEATTS:     Your Honor, for the record,

25   also the Office of Capital Writs previously had a motion
                                                                       6




 1   pending for access to the District Attorney's trial file,

 2   and counsel came earlier this week and did review the

 3   District Attorney's trial file.          So, we'd ask for the

 4   record -- they had indicated that they wish to withdraw

 5   that motion and ask for them to do that now, Your Honor.

 6                     MR. SCHEPERS:     That's correct.    We're

 7   happy to withdraw that motion, Your Honor.

 8                     THE COURT:    Okay.     That motion is

 9   withdrawn.     And any other matters we need to take up

10   before we start?

11                     MS. YEATTS:     No, ma'am.

12                     THE COURT:    You may proceed.

13                     MS. YEATTS:     So, first, can we talk about

14   the motion for State's access to Dr. Reed's --

15   Dr. Christine Reed's report.

16                     THE COURT:    Yes.

17                     MS. YEATTS:     What happened at trial,

18   Judge, is that defendant had experts who went in and

19   evaluated him prior to trial.          One of those experts was

20   Dr. Toni McGarrahan.     She conducted a psychological

21   evaluation of the defendant in October of 2011.            This

22   trial was May of 2012.

23                The State's position, Your Honor, is that the

24   defendant's speaking to his own experts prior to trial

25   triggers the Lagrone case and triggers the State to have
                                                                7




 1   its ability to use its examination of the defendant at

 2   trial as rebuttal.

 3             Prior to trial the State filed a motion under

 4   Lagrone for access to the defendant because of his

 5   limited Fifth Amendment waiver prior to trial by speaking

 6   to his own experts.

 7             The judge at the time, Judge Snipes, granted

 8   that motion.   So the State's expert that we have hired

 9   for trial is Dr. Christine Reed, and she went in and

10   evaluated the defendant prior to trial.

11             Under the Court's order, that evaluation was

12   then sealed, and the State did not have access to it.

13   With the intent being if the defendant called experts

14   during trial that he had spoken to or that had evaluated

15   him, the State would have received a copy of Dr. Reed's

16   report.   That did not happen.   So the State has never had

17   access to her report.

18             In this writ, however, Your Honor, Mr. Harris

19   has relied on the evaluation that Dr. McGarrahan his own

20   expert did prior to trial, and that was a psychological

21   examination.

22             What happened here is that several of the

23   claims in this writ rely on Dr. McGarrahan's testing and

24   rely on her evaluation.   The counsel for Office of

25   Capital Writs has used another psychologist,
                                                                   8




 1   Dr. Underhill to take her raw data and generate scores

 2   based on that raw data, and Dr. Underhill's scoring of

 3   the psychological testing has been utilized and relied on

 4   in numerous pending claims.     And that includes -- there's

 5   several claims of ineffective assistance of counsel based

 6   on failure to investigate and present certain evidence in

 7   this writ, Your Honor.

 8             One of those claims is a fetal alcohol syndrome

 9   claim.   The allegations are that trial counsel should

10   have investigated and raised and presented evidence of

11   fetal alcohol syndrome at trial.

12             Two of their experts, one psychologist,

13   Dr. Brown and a M.D. Dr. Davies, Dr. Davies' evaluation

14   was just done in December of last year and provided to

15   the State and the Court.   Both of those experts are

16   relying on the psychological testing done prior to trial.

17             Also, there's a toxicologist.     The issue there

18   is the possible lead exposure in west Dallas.     The

19   toxicologist also relies on the psychological evaluation

20   that was done prior to trial.

21             Other experts rely on that information assuming

22   that there's some type of neurological deficits based on

23   the psychological evaluation.     Dr. Robinson who does the

24   schools-to-prison pipeline theory, in testimony she's

25   relying on the assumption that there's neurological
                                                                 9




 1   damage based on the psychological done prior to trial and

 2   Laura Sovine who was a social worker, she also relies on

 3   these conclusions.

 4             So we know at this point what Dr. McGarrahan's

 5   testing was because Dr. Underhill made a list of those

 6   tests and the results.   We know that Dr. McGarrahan's

 7   testing include an IQ test and also general academic

 8   testing, that includes like reading, writing, and math.

 9             I don't know, Your Honor, what Dr. Reed's

10   evaluation shows because that's been sealed and never

11   provided to the State.   I don't know what testing she

12   did.   She was the State's expert at trial.   She was our

13   consultant, but she -- in the court order, she did not

14   reveal the results of her testing.

15             So I am in a position, Your Honor, that I had

16   an expert at trial and I now have an expert on my writ

17   who is Dr. Christine Reed, but I don't have access to the

18   evaluation she did of the defendant.

19             So, interestingly, Your Honor, when I called

20   her, I called her and said I don't have a copy of your

21   report, of course, because it was sealed and I'll have to

22   get permission from the Judge to access that report.     She

23   indicated that Mr. Romig also was interested in having

24   her report, and he had previously called her during his

25   investigation and asked for the report; and she told him
                                                                  10




 1   that she couldn't provide it to him because it was

 2   sealed.

 3               So the point, Judge, is that the defendant's

 4   Fifth Amendment waiver and speaking to his experts and

 5   then relying on that communication in their writ triggers

 6   an examination by the State and triggers the State having

 7   access to the examination that was previously done by his

 8   own expert.

 9               The State believes that what the Office of

10   Capital Writs wishes to do at this point is narrow our

11   rebuttal.     I believe their position from the

12   communication -- of course, they can explain that to

13   you -- I believe their position is that they want to use

14   Dr. McGarrahan's evaluation now only as to the

15   neuropsychological deficits.

16               So it seems like they're putting the cart

17   before the horse which is a place we've been previously

18   when we've been in front of you, Judge.     Because I feel

19   like they want to narrow the scope of the State's

20   rebuttal based on relevancy.

21               But the State's position is they're coming in

22   and they're saying counsel is ineffective because their

23   client had these deficits and these deficits are based on

24   this mental health condition.     And they want the State to

25   be limited to talking about the mental health condition
                                                                    11




 1   that's identified by their experts.

 2              But the State's position is this is rebuttal

 3   and that we can look at the deficits, and those deficits

 4   were all talked about at trial.       I'm talking about ADHD,

 5   learning problems, things of that nature.

 6              So the State's position is that we can look at

 7   the cause of those deficits.     We can look at the etiology

 8   of those deficits and we can bring our own experts and

 9   explain on our own terms what caused those deficits, what

10   could be the basis of them.     We don't think we're limited

11   by their expert's scope and their expert's framing of

12   those issues.

13              I think I'll close at that point with an

14   opportunity for rebuttal, Judge.

15                   THE COURT:    Okay.    Response from the

16   Defense.

17                   MR. ROMIG:    Thank you, Your Honor.       At the

18   start I should mention just for the record that our

19   client Mr. Harris is not in court today and that's with

20   our understanding.

21              At the outset I'd say on this issue we don't

22   disagree in large measure with what the State just said.

23   There's a lot -- by putting into issue during our writ

24   Mr. Harris' neurological deficits, we've certainly opened

25   up the opportunity for the State to rebut that issue.
                                                                  12




 1               Where we disagree with the State is exactly in

 2   the limitations of what they're allowed to rebut.     It's

 3   not so much our request to limit them, but it's what the

 4   case law says in Lagrone and Soria from the Court of

 5   Criminal Appeals about exactly how broad that waiver of

 6   Fifth Amendment protections has been.

 7               I have a couple cases to give, Your Honor, that

 8   were cited in the State's brief (tendering).

 9                    THE COURT:   Thank you.

10                    MR. ROMIG:   And I have flagged relevant

11   portions.    What the Court of Criminal Appeals has said is

12   that when a defendant initiates and uses a psychiatric

13   examination and presents psychiatric testimony, the

14   defendant then may be compelled to undergo an examination

15   from the State's expert, and the State may present

16   rebuttal testimony of that expert based upon his

17   examination of the defendant.     But the Court of Criminal

18   Appeals specifically says that the rebuttal testimony is

19   limited to the issues raised by the Defense expert.

20               So to give an example, Your Honor, just because

21   Defense expert cardiovascular surgeon goes in and

22   examines the defendant doesn't mean now the State can

23   choose any type of expert witness they want to go in and

24   speak to the defendant and ask him about any issue he

25   wants because obviously --
                                                                  13




 1                  THE COURT:     Do you think that's what the

 2   State is doing here?

 3                  MR. ROMIG:     No, not exactly, Your Honor.

 4   The problem in this case is that Dr. McGarrahan a Defense

 5   expert at trial is a neuropsychologist but also does

 6   general psychological evaluations.     And so in this case

 7   she was one expert that did multiple, different types of

 8   examinations of the defendant.

 9             She did personality testing.     She did a general

10   mental health examination, and she did specific

11   neurological examinations that utilized a specific

12   battery of tests that only neuropsychologists do.

13             It's those neuropsychological testings that are

14   the basis of our fetal alcohol syndrome claim.     The basis

15   of the deficits for which the application is speaking

16   about.

17             Now it may be that Dr. Reed did

18   neuropsychological testing.    We are also in the dark as

19   far as what Dr. Reed did as the State mentioned.     In our

20   investigation, we discovered that Dr. Reed had done an

21   evaluation but that it was sealed under Lagrone.     So I

22   think it's entirely appropriate for, Your Honor, to get

23   the report and find out what was done.

24             What we're saying is not appropriate is if

25   Dr. Reed merely did a general psychological evaluation
                                                                    14




 1   that was aimed at looking at things like schizophrenia,

 2   major mental health diagnoses, that's not what we're

 3   talking about in the application.        What we're talking

 4   about is neuropsychological deficits.        If Dr. Reed didn't

 5   do neuropsychological testing, it's not apples and

 6   apples; it's apples and oranges.

 7             And you'll actually see in the third case that

 8   we've given you that the State cites is the Davis case.

 9   In that case at trial there was a distinction made

10   between the types of experts you can use.        The Defense

11   had a psychiatrist evaluate the defendant, and the trial

12   court said, okay, State, you can have a psychiatrist.

13   You cannot have a psychologist.        And that was an

14   appropriate limitation.

15             So in this case all we're saying is that, Your

16   Honor, needs to look at Dr. Reed's report and look at

17   what testing she actually conducted.        And, if it's not

18   neuropsychological testing, that's just simply not the

19   issue that's been brought up by the application so it's

20   not appropriate to disclose.

21                    THE COURT:    Okay.    And Dr. Reed's report,

22   where is that?    I wasn't the judge when she testified.

23                    MS. YEATTS:    It's sealed.    She would have

24   provided a copy to Judge Snipes under seal and he would

25   have reviewed it.
                                                                    15




 1                     THE COURT:    Where would Judge Snipes have

 2   put it?

 3                     MS. YEATTS:    We can certainly ask her to

 4   provide a sealed copy to you now, Judge.

 5                     THE COURT:    That would be great.

 6                     MS. YEATTS:    But I'd like to address some

 7   of those items, if I may.

 8                     THE COURT:    Okay.   Were you finished,

 9   counselor?

10                     MR. ROMIG:    For the moment, yes.

11                     THE COURT:    Okay.   You may respond.

12                     MS. YEATTS:    The way the Court of Criminal

13   Appeals has narrowed the Lagrone cases and the cases that

14   follow, is that it's mental health expert and mental

15   health expert.     It's not narrowed beyond that.

16                Dr. Reed is a forensic and clinical

17   psychologist, and Dr. McGarrahan is a neuropsychologist.

18   I imagine -- without having seen Dr. Reed's report, I

19   don't know, but I imagine there's a lot of crossover in

20   those types of evaluations.

21                Counsel is splitting hairs by saying -- he

22   can't pick the State's expert, Your Honor.        And my

23   position would be that when we present the evidence and

24   when we present the testimony, anything that my expert

25   has to say would go to weight and not admissibility.
                                                                 16




 1   He's trying to upfront bar me from using this witness,

 2   and I don't think that's appropriate, Your Honor.

 3             I think that the Davis case supports the

 4   State's position.    In the Davis case, the trial court did

 5   elect to limit the psychologist's examination because the

 6   psychiatrist had not done any testing.    So in that case

 7   the trial court decided that the State wouldn't bring a

 8   psychologist to do testing.    They would just bring in a

 9   parallel psychiatrist.

10             Your Honor, that case otherwise supports the

11   State's position of the expansion of Lagrone, and that

12   wasn't the issue before the Court of Criminal Appeals.

13   That was already something that had been decided by the

14   trial court, and they're moving beyond that.

15             Also, Judge, in the Ward case that I cited in

16   my brief, the issue was a social worker testifying about

17   mitigation who had relied on other evaluations done by

18   other individuals.    And the Court there decided that the

19   State could have its own psychiatric expert come in and

20   evaluate the defendant when the social worker who took

21   the stand relied on third party psychiatric evaluations.

22             So there the Court's focus in these cases, Your

23   Honor, the cases that follow Lagrone is on the

24   defendant's choice to break his silence, and the Court of

25   Criminal Appeals has said they are not going to do hair
                                                                17




 1   splitting on these issues on whose testimony whose

 2   evaluations are allowed.

 3             Also, Judge, you know this is a writ hearing.

 4   We don't have a jury in the box.   And my position would

 5   be that my rebuttal would be allowed broadly so that I

 6   can bring in different experts.

 7             If his expert wants to say that the ADHD and

 8   the other characteristics that he exhibited throughout

 9   life were based on alcohol fetal syndrome, I can be

10   bringing experts that say these deficits were based on

11   something else.   They have a different etiology.

12             So I don't have a jury in the box, Judge.      This

13   is part of what you are deciding in this writ.      He claims

14   that trial counsel should have brought in this expert,

15   and I can show the Court, if trial counsel had brought in

16   that expert, this is the one or two or three or four

17   experts I may have brought in at rebuttal at trial or the

18   State would have brought in at rebuttal at trial.

19             And then part of your decision in this writ,

20   Judge, is to decide whether that's relevant and whether

21   that would have been admitted at trial.   And until you

22   hear that testimony from the witness stand, you shouldn't

23   be asked to make that decision upfront now and preclude

24   that evidence from coming in later.   That's part of your

25   decision on the writ.
                                                                   18




 1               So we would submit our findings.      You would

 2   make those decisions on whether that evidence would have

 3   been admitted or not.     There's no reason to decide that

 4   now and to preclude the State from putting on a portion

 5   of its case this early in the game, Your Honor.

 6                     THE COURT:    Okay.   Let me hear the

 7   Defense's response.

 8                     MR. ROMIG:    So just a couple of points on

 9   that, Your Honor.     I would say, first, I don't think the

10   State's description of the Lagrone cases and the case law

11   is exactly accurate.     I don't think the CCA has gone so

12   far as to say mental health evidence is mental health

13   evidence and it's all the same.

14               What they have instead focused on is the

15   evaluation that is performed.       Absolutely, the Defense

16   has no right and we are not trying to suggest which

17   expert does or does not get to evaluate on behalf of the

18   State.     We have no problems with Dr. Reed as an expert

19   witness.    It's that did she do the equivalent type

20   testing. We're not even saying she has to do the same --

21                     THE COURT:    Well, I mean, it does kind of

22   boil down to that.     What was she testing and how would we

23   know that unless I have --

24                     MR. ROMIG:    Exactly.   You need to get the

25   report.     That's our point.    You need to get the report
                                                                   19




 1   and look at it and see is what she is doing is looking at

 2   actual cognitive deficits.    Because that's the underlying

 3   data that we're going to be focusing on in the writ

 4   hearing is cognitive impairments, not other sort of

 5   psychological issues like psychosis.     That's not part of

 6   our focus.

 7                   THE COURT:   But I need you to also address

 8   the State's point.   If he's saying, oh, my counsel was

 9   ineffective.   He should have brought this expert up.

10                   MR. ROMIG:   Exactly, Your Honor.

11                   THE COURT:   And that's a technical

12   decision on what to bring up.     And they are saying, yeah,

13   and if you had, guess what I would have brought up.      So

14   is it ineffective or is it strategically deciding what to

15   bring --

16                   MR. ROMIG:   That's why I think it's a

17   little bit of a red herring on the part of the State to

18   say let's focus on what could the State have in

19   speculation presented had they been back in that

20   situation.

21                   THE COURT:   How would they know that

22   unless we allow them to view --

23                   MR. ROMIG:   The writ hearing is about

24   counsel's performance, not the State's performance.

25                   THE COURT:   Right.   But, if you are trying
                                                                     20




 1   to evaluate whether counsel performed inadequately,

 2   wouldn't that be a part of it?        They should have called

 3   that person or maybe they should not have because in turn

 4   three, four, five, six things would have been brought up.

 5                     MR. ROMIG:     The problem with evaluating

 6   that way, Your Honor, is it doesn't actually look at

 7   counsel's performance.     It starts to look at the end

 8   game.     It starts to look at what might the State have

 9   done, and we don't know what the State would have done.

10                And, in fact, by the time trial happens, we

11   should be evaluating the trial counsel's performance on

12   what they did pretrial.        Whether the State brought

13   forward another expert, at that point their performance

14   is done.     Trial counsel's performance has been complete.

15   If we're going to be evaluating trial counsel's

16   performance, we need to be looking at only what

17   information they would have had at the time they're doing

18   their investigation and creating the case.

19                     THE COURT:     They, meaning Defense counsel?

20                     MR. ROMIG:     Defense counsel.   They

21   wouldn't have had the defense of the State's expert's

22   report.     They wouldn't have known necessarily what

23   experts the State were planning on utilizing.

24                     THE COURT:     So am I understanding this

25   correctly?     Judge Snipes sealed this from both sides?
                                                                    21




 1   Defense has not reviewed it; State has not reviewed it?

 2                   MS. YEATTS:     Correct, Your Honor.

 3                   THE COURT:     Okay.

 4                   MR. ROMIG:     All we are asking, Your Honor,

 5   is please review it and make sure it's actually

 6   equivalent data.

 7                   THE COURT:     You're saying how would trial

 8   counsel know because they didn't --

 9                   MR. ROMIG:     They would have never received

10   it until after trial is going on.

11                   THE COURT:     All right.   I'll take a look

12   at that.

13                   MS. YEATTS:     I am aware that Pat Kurlin

14   communicates extensively with Defense counsel during this

15   trial, and I imagine he has told Defense counsel, given

16   them some indication of whether he would be calling

17   Dr. Reed depending on what they did.        Those things are

18   often negotiated as a part of strategy.

19              And also just to remind you that we're also --

20   the case law governs this, but we're also looking at the

21   economy of this issue.     We hired this expert and paid

22   her.   She did an evaluation.     He has waived his Fifth

23   Amendment privileges.

24              Do I want to bring in another expert and do my

25   evaluation from scratch?      I don't know, Your Honor.     But
                                                                    22




 1   there is an economy piece to this.

 2                    THE COURT:    Okay.   All right.   Anything

 3   else on that issue?

 4                    MS. YEATTS:     No.

 5                    THE COURT:    All right.   Let's go to the

 6   State's Motion for Disclosure of Roderick Harris' trial

 7   files.

 8                    MS. YEATTS:     There is one other brief

 9   thing on that, Your Honor.

10               We would ask in conjunction with our motion

11   that Dr. McGarrahan's raw data be provided to our expert

12   to prepare for our writ hearing.

13                    THE COURT:    Okay.   Any objections from the

14   Defense?

15                    MR. ROMIG:    I'm sorry which expert?

16                    THE COURT:    Dr. McGarrahan's.

17                    MS. YEATTS:     Dr. McGarrahan's raw data.

18                    MR. ROMIG:    Provided to Dr. Reed?

19                    MS. YEATTS:     To Dr. Reed.   Your Honor, the

20   raw data usually does not go through counsel.        Usually --

21   often at trial there's an agreement between counsel, and

22   the psychologists contact each other and exchange that

23   raw data.

24                    THE COURT:    Do you all object to that?

25                    MR. SCHEPERS:     At the very least, Your
                                                                  23




 1   Honor, we would think that if that sort of scenario

 2   is what is occurring that our experts need to have

 3   Dr. Reed's raw data as well if you make the determination

 4   to release that report.

 5                  THE COURT:    Okay.     Any objections from the

 6   State?

 7                  MS. YEATTS:     If the report is released,

 8   the State does not object to an exchange of raw data

 9   including Dr. Reed.

10                  MR. SCHEPERS:     If the report is released,

11   the exchange is fine with us.

12                  THE COURT:    All right.     Anything else?

13                  MS. YEATTS:     Not on that issue.

14                  THE COURT:    All right.     Let's go to

15   State's Motion for Disclosure of Roderick Harris' trial

16   file.

17                  MS. YEATTS:     Okay.   Your Honor, as we said

18   the bulk of this writ, I think five out of six claims,

19   are ineffective assistance of trial counsel, and those

20   ineffective assistance claims go to failure to

21   investigate and failure to present certain evidence.

22             The State's position is that Mr. Harris' trial

23   file documents their investigation.       The trial file

24   documents the performance and the preparation, the

25   investigation made to prepare for trial.
                                                                  24




 1                We are aware in past cases that the Office of

 2   Capital Writs normally scans trial counsel's file.       It's

 3   been their practice in other cases in this building or

 4   three other cases where they agreed to provide the State

 5   with the trial file.

 6                In two of those cases, the trial file was

 7   provided on disks.     In one case -- of course, I am

 8   talking about portions of the file that are relevant to

 9   the ineffective assistance claims, Your Honor.     I should

10   have said that upfront.

11                In one case they provided portions of the file

12   designating what they didn't think was relevant to the

13   claims.   In the third case, they agreed to provide the

14   file and then counsel was substituted.

15                So, the State's position is that the Court of

16   Criminal Appeals has held in the McCann case, which the

17   Office of Capital Writs is very familiar with because

18   they were involved in this case, the Court of Criminal

19   Appeals held that the trial file belongs to the

20   defendant.     The trial files belong to the individual.

21                So, based on our discussions, our understanding

22   and based on the response that the Office of Capital

23   Writs has filed, is that they acknowledge that Mr. Harris

24   has entered into a limited waiver to attorney-client and

25   work-product privilege information in his file.     That the
                                                                    25




 1   issue has become what do we do based on that waiver.

 2              The State believes that the McCann case clearly

 3   says on Page 3 and on Page 9 that the file belongs to the

 4   client.    I think what the Office of Capital Writs is

 5   proposing based on an answer they filed last week is that

 6   it's up to trial counsel what the scope of this waiver is

 7   and what to provide.

 8              And the State is opposed to that position

 9   because they represent the client.     The file belongs to

10   him.   They're in possession of the file.    Trial counsel

11   turned over the original copy of the file to them.       And

12   as of Tuesday, trial counsel didn't have a copy.     I don't

13   know if a copy has been provided to trial counsel since

14   Tuesday.

15              The State believes that putting trial counsel

16   in a position of evaluating the ineffective assistance

17   claims and determining the scope of that waiver and trial

18   counsel determining what to turn over to the State puts

19   that duty in the wrong place.

20              I don't believe it's practical, Your Honor.         We

21   think this is governed by Texas Rule of Evidence 503(C)

22   and (D)3 that says the privilege belongs to the client.

23   The privilege belongs to Mr. Harris.     When he's waived

24   it, we feel like they have a duty to review the file,

25   determine what relates to the ineffective assistance
                                                                     26




 1   claims and provide that to the State.

 2               And, Your Honor, the State believes that

 3   these -- much of the claims that are made in this writ

 4   were based on and rely heavily on the original review of

 5   the trial file.     So we believe it brings the file

 6   specifically into issue and that likely involves a fair

 7   volume of materials.

 8                     THE COURT:     Let me be clear.   What part of

 9   the file are you requesting, all of it?

10                     MS. YEATTS:     Anything that relates to the

11   ineffective assistance claims and those claims cover --

12                     THE COURT:     It could be all of it.

13                     MS. YEATTS:     It could be all of it, Your

14   Honor.    Those claims cover the mitigation case and those

15   claims cover objections that were or were not made in the

16   guilt innocence phase, and those claims cover the

17   pretrial investigation.        So the State cannot imagine much

18   that might be in the file that would not relate to those

19   claims.

20                     THE COURT:     I'll give the Defense a chance

21   to respond.    I don't think their argument is that the

22   file doesn't belong to the client.        I don't think.   It's

23   how extensive is it.     Is it opening up the entire file.

24   Anyway, let me let you finish then I'll hear their

25   response.
                                                                   27




 1                   MS. YEATTS:   Well, the problem is that

 2   they want to make the claims of ineffective assistance,

 3   but they don't want to provide the evidence that they

 4   have in their hand that relate to those claims.      And to

 5   put the burden on trial counsel, on Brad Lollar, on Doug

 6   Parks, on the other attorneys -- first of all, there are

 7   four attorneys and -- so you are talking about four

 8   people looking at the file, looking at the scope of the

 9   waiver, deciding what may or may not be involved in

10   claims that Mr. Harris has raised.     They don't -- the

11   terms -- the claims are framed by Mr. Harris.      And, to

12   put that burden on the Defense attorneys, the State

13   believes is improper.

14             Also, Your Honor, there's a chilling effect to

15   those attorneys being willing to provide portions of a

16   file that doesn't belong to them, and there's a chilling

17   effect because they may be in fear that if they make a

18   mistake, if they analyze Mr. Harris' claims wrong, they

19   could be liable for a grievance.     So there's a chilling

20   effect to them putting this on the trial attorneys' lap

21   to undertake this burden.

22                   THE COURT:    You're saying what motivation

23   do they have to say, yeah, you're right.     I messed up.

24   Here you go.   Or, no, I didn't.    Here you go.   Because

25   then doesn't it affect you when you are in trial?      Should
                                                                        28




 1   I put this in my file because later it's discoverable.

 2   See, that's kind of the principle behind it because you

 3   have a free flow of information with the defendant.

 4                     MS. YEATTS:     That's part of the chilling

 5   effect.     The chilling effect I'm talking about is they're

 6   worried that if they provide something that they should

 7   have kept privileged that they will be grieved, and that

 8   they'll be grieved by Mr. Harris who filed these

 9   ineffective assistance claims.

10                     THE COURT:     I can understand that.     Was

11   that it on that point, because I know you have more?              But

12   I want to take it a point at a time and let them respond

13   and then you can go on to the next one, unless you're not

14   finished.

15                     MS. YEATTS:     They can go ahead, Your

16   Honor.

17                     THE COURT:     Okay.   Defense's response.

18                     MR. SCHEPERS:     Thank you, Your Honor.

19   First, we certainly recognize and agree with the State

20   that by having raised claims of ineffective assistance of

21   counsel here we've created a limited waiver of otherwise

22   privileged information.        I think the State's assessment

23   of our position is pretty close to spot-on where we

24   stand.

25               The State thinks because we've raised
                                                               29




 1   ineffective assistance of counsel claims that then

 2   they're automatically entitled to view trial counsel's

 3   files.   It's our position that trial counsel is the party

 4   that should determine what information is relevant and

 5   necessary to be revealed to this Court to defend

 6   themselves against those IAC claims.

 7             There are three brief points that I'd like to

 8   highlight on that, and then I will respond to a couple of

 9   the State's arguments.

10             The first point that I'd like to make is that

11   nowhere in the State's motion is there any binding

12   authority for the idea that the State is now entitled to

13   access to trial counsel's files.   What these cases stand

14   for, the Texas cases and many of the ABA opinions as

15   well, is that trial counsel once an IAC claim is raised

16   is then permitted to defend themselves with otherwise

17   privileged information.

18             The second point that I'd like to highlight is

19   that I think the State's request for such broad discovery

20   in this case in a lot of ways is really a breath-taking

21   proposition in my opinion in a criminal case.   In very

22   few scenarios is a defendant in a criminal case ever

23   required to provide discovery to the State.

24             Now there certainly are some scenarios, for

25   example, if competency is being litigated, the defendant
                                                                  30




 1   would have to turn over relevant medical records.     The

 2   defendant would also have to provide limited discovery

 3   regarding experts that they want to put on at trial.

 4                But I think the discovery in those cases is

 5   significantly smaller than what the State asked for here.

 6   And, perhaps, more importantly there's a specific

 7   statute, case law and evidentiary rule that specifically

 8   requires that and in this case that just simply doesn't

 9   exist.

10                The third point I would like to make is that in

11   an IAC writ, the State does not represent trial counsel.

12   Now almost certainly they'll be arguing that trial

13   counsel performed effectively, but they're not trial

14   counsel's representatives in this matter.     And we don't

15   think it's appropriate for them to substitute their

16   judgment in for what trial counsel should be making

17   determinations of what information is relevant and

18   necessary.

19                And in response to the State's argument, I

20   would like to point out, Your Honor, we have just this

21   morning actually we met with two of Mr. Harris' trial

22   counsel and we've told them that we'll provide for them

23   copies of the file for their review.     So they will have

24   access to those materials both to prepare themselves for

25   court and also to determine which of those materials are
                                                                 31




 1   necessary to put into the fact-finding process during

 2   their testimony in the May hearing.

 3             The second point that I would like to make is

 4   regarding the chilling effect that the State is talking

 5   about.   The first thing I would like to point out is that

 6   I think a far greater chilling effect than the

 7   possibility of -- than trial counsel having to look and

 8   see what's in their file to determine what to release, is

 9   a Court such as yourself ordering that their entire trial

10   file or to the extent that it's relevant and necessary is

11   automatically turned over to the State.   I think that

12   would have a significantly larger chilling effect a court

13   order going into place rather than trial counsel

14   themselves sitting down and determining how they need to

15   defend themselves against those IAC claims.

16             I also would like to point out -- I think there

17   was some suggestion that there would be the possibility

18   of fear of reprisal from the Office of Capital Writs

19   based on the material that is turned over.

20             In the four and a half years that our office

21   has existed, we've never filed a bar grievance against an

22   attorney for turning over materials.   And to be honest,

23   Your Honor, I can't come up with a scenario in my head

24   right now where that would be appropriate.    I certainly

25   can't make a blanket statement, but I can't come up with
                                                                 32




 1   any scenario off the top of my head right now or filing a

 2   bar grievance or something along those lines would be the

 3   appropriate remedy.

 4             So, our position is basically -- we're asking

 5   you certainly to deny the State's motion and then keep

 6   the power where the case law supports that it should be,

 7   with trial counsel, to determine which of this

 8   information needs to be turned over.

 9                  THE COURT:    Have any portions of the file

10   been turned over to the State at this point?

11                  MR. SCHEPERS:     They have not, Your Honor.

12                  THE COURT:    Okay.   So, before the State

13   argues open up the whole file, why not look at --

14   depending on how I rule, why not look at what's provided

15   and see if that's sufficient first before you make the

16   argument that maybe more is needed.

17                  MS. YEATTS:     I would be happy for the

18   Court to order the Office of Capital Writs to provide

19   what they think is relevant to an ineffective assistance

20   claim and to provide a privileged log and then I could --

21   you know, Your Honor could view the privileged log and

22   the Court could also and if there's something on the

23   privileged log that you think we should have access to we

24   would challenge it at that point.

25                  THE COURT:    I'm sorry.   I cut you off. I'm
                                                                     33




 1   going to come back to you. You weren't finished yet.           Did

 2   you have anything else you wanted to say?

 3                     MR. SCHEPERS:     I do now.    Just to be

 4   clear, we're objecting to turning over any materials to

 5   the State but I was finished.        Thank you, Your Honor.

 6                     THE COURT:    Okay.     You may respond.

 7                     MS. YEATTS:     Your Honor, one thing that

 8   counsel referenced in a cite in a brief is the American

 9   Bar Formal Opinion 10-456.        I would point out to the

10   Court that is an advisory opinion.          The American Bar

11   Association and its advisory opinions are not binding on

12   the Court.

13                Also, the problem is that the American Bar

14   Association opinion does not take into account the McCann

15   case which says that the trial file belongs to the

16   client, belongs to Mr. Harris.          And I'm not sure with the

17   McCann case in existence that it would not be problematic

18   for trial counsel to turn over anything, anything hard

19   copy from the file.

20                I think there's a practical piece to this, too,

21   Your Honor.     If we wait until trial counsel is on the

22   stand and then we bring up the subject and then we

23   determine that something they're talking about is

24   documented in the file and that needs to be part of these

25   proceedings, we'll be doing that piecemeal and we'll be
                                                               34




 1   slowing down the hearing and we may be wasting the Court

 2   and the parties time.

 3             In this instance the American Bar opinion talks

 4   about that trial file should be provided only under court

 5   supervision, and I think that's where we are, Your Honor.

 6   We are in the phase of court supervision.   And in the

 7   instance of these writs, of course, the writ is filed

 8   with evidence attached; the affidavits of the experts,

 9   the affidavits of the family members, the people who have

10   something to say about the writ claims.

11             In the past, Your Honor, the State's response

12   would include affidavits by the trial attorneys

13   addressing those writ claims.   So, at the phase we're at

14   now, we would have normally in the past already have had

15   trial attorneys' testimony in the record.   Because the

16   Office of Capital Writs in the past has asked us not to

17   speak to the trial attorneys until after the Order

18   Designating Issues is entered, which we have done in this

19   case, we don't have evidence from the trial attorneys but

20   we could, Your Honor.

21             We could have evidence from the trial attorneys

22   in the form of affidavits which even under the American

23   Bar Association opinions would then allow the Court to

24   order those attorneys to provide portions of their

25   records that relate to these claims.
                                                                  35




 1             So the State's position is there's no sense to

 2   wait until the hearing.     That pushes things off.   The

 3   State's position is that really the purpose of opposing

 4   this motion is to put the State at a disadvantage to

 5   prepare for this hearing.

 6                  THE COURT:     The hearing is scheduled for

 7   May?

 8                  MS. YEATTS:     Yes, ma'am.

 9                  THE COURT:     I will make the decision well

10   before May, I promise you.

11             Anything else from the Defense?

12                  MR. SCHEPERS:     Your Honor, we would just

13   like to add in that we don't think the State's reference

14   to McCann here is particularly relevant in light of the

15   fact that trial counsel does have access to these files.

16   Certainly, we agree with the proposition in McCann which

17   we think is essentially always been the law.     It was

18   clarified, stated in McCann, that the file belongs to the

19   client.

20             I think the biggest point that I would like you

21   to take away from this is just what a huge step the State

22   is asking here for in a criminal case, just massive

23   amounts of discovery without any case law, without any

24   statute, without an evidentiary rule; and we believe that

25   this power should be left for trial counsel to determine
                                                                     36




 1   how they need to defend themselves and not to let the

 2   State substitute their own opinion in there.

 3                     THE COURT:    There will definitely be a lot

 4   of material.

 5                Anything else from the State?

 6                     MS. YEATTS:     Just, Your Honor, that I

 7   think the McCann case is on point.        It puts trial counsel

 8   in a bind.     We think that the Office of Capital Writs has

 9   the duty and obligation here to review the file and

10   determine what's relevant.        That's all, Your Honor.

11                     MR. LEVENSON:     Counsel -- may I add

12   something?

13                     THE COURT:    Yes, you may.

14                     MR. LEVENSON:     Of the -- if this court was

15   -- two things:     If this court was going to rule for the

16   State, one, we would less likely take a mandamus up to

17   the Court of Criminal Appeals.        So that might delay --

18   depending on how long the court took.        Because there is

19   again no law or statute that talks about this type of

20   discovery.

21                Second, the issue of electronic versus paper.

22   The State has asked for electronic copy of our files.           At

23   one point we were negotiating with the State and we said

24   to them, if you will supply an electronic version, we

25   would consider continuing to supply an electronic
                                                                   37




 1   version.

 2               The State would not give us an electronic

 3   version.    They made their files available to review.       If

 4   this court was going to determine that the State should

 5   have access to the files, at most the State should come

 6   to Austin and review the same way that we reviewed their

 7   files on paper without the electronic version.        It

 8   certainly makes it easier for the State to have an

 9   electronic version but there's no --

10                     THE COURT:    Okay.   Any objections to that

11   from the State, if I were to rule that way?

12                     MS. YEATTS:    The State doesn't have a

13   problem with reviewing the hard copies of the file, Your

14   Honor.     The issue with our file, we don't provide an

15   electronic copy because we don't have one, and we have to

16   provide the manpower and pay to have our files scanned.

17   We believe the Office of Capital Writs already has this

18   on disks which they should have already and may be

19   providing to trial counsel.

20                     THE COURT:    You're saying that would be an

21   easier way to do it?

22                     MS. YEATTS:    It is, Your Honor.   The State

23   believes that the reason they don't want to provide an

24   electronic copy is they don't want the State to offer

25   that into evidence which has been done in the past.         And
                                                                      38




 1   we think that the file should be offered into evidence to

 2   document what the Office of Capital Writs had in

 3   developing their writ claim.

 4                    THE COURT:    Okay.

 5                    MS. YEATTS:     So we would ask for an

 6   electronic copy, Your Honor.       And also when they came to

 7   review our file earlier this week, they tagged items they

 8   wanted copies of.    I provided those to them.       There was

 9   nothing that they asked for a copy of that I didn't

10   provide.

11                    THE COURT:    Defense.

12                    MR. LEVENSON:     We would do the same thing

13   for them, if they came to Austin.         If we were not going

14   to object to the Court's ruling, if the Court went that

15   way, we would make copies available to them.         Also, we do

16   scan the files for our benefit, the benefit of us.         We

17   don't do it for the use of the State later on.

18                    THE COURT:    But help me understand.     She's

19   saying they don't have theirs in an electronic version;

20   you do.    So is it to make it more burdensome upon them or

21   what would be the purpose -- if you have it both ways,

22   what would be the purpose of having them come in for the

23   physical files as opposed to electronic?

24                    MR. LEVENSON:     They can.    I mean it cost

25   money and manpower for us to scan our files and we do it
                                                                    39




 1   so we can review them.   We have an easier way of

 2   documenting them.

 3                   THE COURT:    Like I'm trying to make it

 4   easier for me, not easier for you, right?       Is that the --

 5                   MR. LEVENSON:     We scan them for our

 6   benefit.   We're not scanning them for the State.        The

 7   State could spend manpower and money to scan their files

 8   like we do, because they know that we would like to see

 9   their files as well.

10                   THE COURT:    I understand.    Okay.   Anything

11   else from the State?

12                   MS. YEATTS:     That's all, Your Honor.

13                   THE COURT:    All right.    Anything else from

14   the Defense?

15                   MR. LEVENSON:     No, Your Honor.

16                   THE COURT:    Okay.   Dr.   Reed's report, who

17   can get in contact with Dr. Reed?

18                   MS. YEATTS:     I can, Your Honor.

19                   THE COURT:    Okay.   Let me review that, and

20   then I'll give you a ruling on both of these motions; and

21   I will do that well before the hearing in May so then

22   both sides will know and can prepare accordingly.

23                   MR. ROMIG:    Your Honor, I guess I would

24   just add one thing on Dr. Reed.

25                   THE COURT:    Yes.
                                                                          40




 1                     MR. ROMIG:     Again, we object to it being

 2   disclosed, if it's not relevant.         If you do disclose it,

 3   we would also like to have a copy, if possible.

 4                     THE COURT:     Okay.   All right.    Any

 5   objections to them having a copy, if I do disclose it?

 6                     MS. YEATTS:     We will be getting copies of

 7   all of their doctor's reports.

 8                     THE COURT:     I thought the issue was

 9   Dr. Reed.     That was the main issue.        That's the only

10   report I'm reviewing.

11                     MS. YEATTS:     Although I did ask for raw

12   data from Dr. McGarrahan's report.

13                     THE COURT:     Okay.   And if I were to rule

14   that this report is going to be unsealed, I think we have

15   an agreement that there will be an exchange of raw data

16   so I understand that.

17                     MS. YEATTS:     I don't object to them

18   receiving a copy of Dr.        Reed's report, Your Honor.        I

19   expect that to be part of their litigation.

20                     THE COURT:     Very good.     Both sides trying

21   to be fair.     I love it.     I love it.     So I will review

22   that and I'll have my court coordinator get in contact

23   with you all.     You don't have to come back down here for

24   my ruling unless you just want to make a trip to Dallas.

25   I can email it to you.       We'll get that to you in some
                                                                   41




 1   form so that you know.

 2             Okay.     Anything else I need to cover for the

 3   record?

 4                     MR. LEVENSON:     No, Your Honor.

 5                     THE COURT:     All right.   That's all for the

 6   record.

 7                      (End of the proceedings)

 8                                  -o-0-o-

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                                                               42




 1   STATE OF TEXAS       &

 2   COUNTY OF DALLAS     &

 3

 4        I, Vearneas W. Faggett, Official Court Reporter in

 5   and for the Criminal District Court No. 7 of Dallas,

 6   State of Texas, do hereby certify that the above and

 7   foregoing contains a true and correct transcription of

 8   all portions of evidence and other proceedings requested

 9   in writing by counsel for the parties to be included in

10   this volume of the Reporter's Record in the above-styled

11   and numbered cause, all of which occurred in open court

12   or in chambers and were reported by me.

13        I further certify that this Reporter's Record of the

14   proceedings truly and correctly reflects the exhibits, if

15   any, offered by the respective parties.

16        I further certify that the total cost for the

17   preparation of this Reporter's Record is $ ______ and

18   will be paid by ________________.

19             WITNESS MY OFFICIAL HAND this the 21st day of

20   April, A.D., 2015.

21                            /s/Vearneas W. Faggett
                              VEARNEAS W. FAGGETT, CSR# 3129
22                            Official Court Reporter
                              Criminal District Court No. 7
23                            Dallas County, Texas
                              133 N. Riverfront Blvd.
24                            Dallas, Texas 75207
                              Telephone: 972.739.3906
25                            Expiration: 12/31/2015
                                                               43




 1                         D I S C L O S U R E

 2        Note:     Supreme Court Rule Adopted and Promulgated in

 3                  Conformity with Chapter 52 of the Government

 4                  Code, V.T.C.A

 5

 6

 7              Please be advised that pursuant to Supreme Court

 8   Rule IV, B.5., with regards to disclosure, I, to the best

 9   of my knowledge, have no existing or past financial,

10   business, professional, family or social relationships

11   with any of the parties or their attorneys which might

12   reasonably create an appearance of partiality, except as

13   follows:     NONE.

14

15

16

17                            /s/Vearneas W. Faggett
                              VEARNEAS W. FAGGETT, CSR #3129
18                            Expiration: 12/31/15
                              Criminal District Court No. 7
19                            Frank Crowley Criminal Courts Bldg.
                              133 N. Riverfront Blvd.
20                            Dallas, Tx 75207

21

22

23

24

25
