EXHIBIT D 

Transcript on Motion for Disclosure of 

Trial Files 

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
 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 

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 4 Defense Motion for Access to DA file withdrawn. 6 3 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

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 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 

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