# 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 CLERK1

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-titl ed and 14 numbered cause before the Honorable Elizabeth D. Frizell, 15 Judge Presiding, held in Dallas, Dallas County, T exas. 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 24 252

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 16 17 18 19 20 21 22 23 24 253

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2 MARCH 26, 2015 PAGE VOL 3 Proceedings ................................... 5 3 4 Defense Motion for Access to DA file withdrawn. 6 3 5 State Motion for Access to Dr.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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 254

1 E X H I B I T I N D E X 2 3 (No exhibits were offered or admitted in this vol ume) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 255

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 psychol ogical 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 motion6

1 pending for access to the District Attorney's tri al file, 2 and counsel came earlier this week and did reviewthe 3 District Attorney's trial file. So, we'd ask forthe 4 record -- they had indicated that they wish to wi thdraw 5 that motion and ask for them to do that now, YourHonor. 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 exper ts was 20 Dr. Toni McGarrahan. She conducted a psychologic al 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 have7

1 its ability to use its examination of the defenda nt at 2 trial as rebuttal. 3 Prior to trial the State filed a motion under 4 Lagrone for access to the defendant because of hi s 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 exp erts 14 during trial that he had spoken to or that had ev aluated 15 him, the State would have received a copy of Dr. Reed's 16 report. That did not happen. So the State has n ever 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 psychol ogical 21 examination. 22 What happened here is that several of the 23 claims in this writ rely on Dr. McGarrahan's test ing and 24 rely on her evaluation. The counsel for Office o f 25 Capital Writs has used another psychologist,8

1 Dr. Underhill to take her raw data and generate s cores 2 based on that raw data, and Dr. Underhill's scori ng of 3 the psychological testing has been utilized and r elied on 4 in numerous pending claims. And that includes -- there's 5 several claims of ineffective assistance of couns el based 6 on failure to investigate and present certain evi dence in 7 this writ, Your Honor. 8 One of those claims is a fetal alcohol syndrome 9 claim. The allegations are that trial counsel sh ould 10 have investigated and raised and presented eviden ce 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' eval uation 14 was just done in December of last year and provid ed to 15 the State and the Court. Both of those experts a re 16 relying on the psychological testing done prior t o trial. 17 Also, there's a toxicologist. The issue there 18 is the possible lead exposure in west Dallas. Th e 19 toxicologist also relies on the psychological eva luation 20 that was done prior to trial. 21 Other experts rely on that information assuming 22 that there's some type of neurological deficits b ased on 23 the psychological evaluation. Dr. Robinson who d oes the 24 schools-to-prison pipeline theory, in testimony s he's 25 relying on the assumption that there's neurologic al9

1 damage based on the psychological done prior to t rial and 2 Laura Sovine who was a social worker, she also re lies 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. McGarrah an's 7 testing include an IQ test and also general academic 8 testing, that includes like reading, writing, andmath. 9 I don't know, Your Honor, what Dr. Reed's 10 evaluation shows because that's been sealed and n ever 11 provided to the State. I don't know what testingshe 12 did. She was the State's expert at trial. She w as our 13 consultant, but she -- in the court order, she di d 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 mywrit 17 who is Dr. Christine Reed, but I don't have acces s 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 repo rt. She 23 indicated that Mr. Romig also was interested in h aving 24 her report, and he had previously called her duri ng his 25 investigation and asked for the report; and she t old him10

1 that she couldn't provide it to him because it wa s 2 sealed. 3 So the point, Judge, is that the defendant's 4 Fifth Amendment waiver and speaking to his expert s and 5 then relying on that communication in their writ triggers 6 an examination by the State and triggers the Stat e having 7 access to the examination that was previously don e by his 8 own expert. 9 The State believes that what the Office of 10 Capital Writs wishes to do at this point is narro w 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 prev iously 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 con dition11

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 d eficits 4 were all talked about at trial. I'm talking abou t 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 expert s and 9 explain on our own terms what caused those defici ts, 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 framin g 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 o ur 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 jus t said. 23 There's a lot -- by putting into issue during ourwrit 24 Mr. Harris' neurological deficits, we've certainl y opened 25 up the opportunity for the State to rebut that is sue.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 wai ver 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 psychi atric 13 examination and presents psychiatric testimony, t he 14 defendant then may be compelled to undergo an examination 15 from the State's expert, and the State may presen t 16 rebuttal testimony of that expert based upon his 17 examination of the defendant. But the Court of C riminal 18 Appeals specifically says that the rebuttal testi mony is 19 limited to the issues raised by the Defense exper t. 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 issu e 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 aDefense 5 expert at trial is a neuropsychologist but also d oes 6 general psychological evaluations. And so in thi s case 7 she was one expert that did multiple, different t ypes 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 specifi c 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. T he basis 15 of the deficits for which the application is spea king 16 about. 17 Now it may be that Dr. Reed did 18 neuropsychological testing. We are also in the d ark as 19 far as what Dr. Reed did as the State mentioned. In our 20 investigation, we discovered that Dr. Reed had do ne 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 evalu ation14

1 that was aimed at looking at things like schizoph renia, 2 major mental health diagnoses, that's not what we 're 3 talking about in the application. What we're tal king 4 about is neuropsychological deficits. If Dr. Ree d didn't 5 do neuropsychological testing, it's not apples an d 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 mad e 10 between the types of experts you can use. The De fense 11 had a psychiatrist evaluate the defendant, and th e trial 12 court said, okay, State, you can have a psychiatr ist. 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 loo k at 17 what testing she actually conducted. And, if it' s not 18 neuropsychological testing, that's just simply no t the 19 issue that's been brought up by the application s o 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 testi fied. 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 ca ses that 14 follow, is that it's mental health expert and men tal 15 health expert. It's not narrowed beyond that. 16 Dr. Reed is a forensic and clinical 17 psychologist, and Dr. McGarrahan is a neuropsycho logist. 18 I imagine -- without having seen Dr. Reed's repor t, I 19 don't know, but I imagine there's a lot of crosso ver 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 eviden ce and 24 when we present the testimony, anything that my e xpert 25 has to say would go to weight and not admissibili ty.16

1 He's trying to upfront bar me from using this wit ness, 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 c ourt did 5 elect to limit the psychologist's examination bec ause the 6 psychiatrist had not done any testing. So in tha t case 7 the trial court decided that the State wouldn't b ring a 8 psychologist to do testing. They would just brin g in a 9 parallel psychiatrist. 10 Your Honor, that case otherwise supports the 11 State's position of the expansion of Lagrone, andthat 12 wasn't the issue before the Court of Criminal App eals. 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 testifyin g about 17 mitigation who had relied on other evaluations do ne by 18 other individuals. And the Court there decided t hat 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 evalu ations. 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 d o hair17

1 splitting on these issues on whose testimony whos e 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 positionwould 5 be that my rebuttal would be allowed broadly so t hat 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 throu ghout 9 life were based on alcohol fetal syndrome, I can be 10 bringing experts that say these deficits were bas ed 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. H e claims 14 that trial counsel should have brought in this expert, 15 and I can show the Court, if trial counsel had br ought in 16 that expert, this is the one or two or three or f our 17 experts I may have brought in at rebuttal at tria l 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 unti l you 22 hear that testimony from the witness stand, you s houldn't 23 be asked to make that decision upfront now and pr eclude 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 wou ld have 3 been admitted or not. There's no reason to decid e that 4 now and to preclude the State from putting on a p ortion 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 th ink the 10 State's description of the Lagrone cases and the case law 11 is exactly accurate. I don't think the CCA has g one so 12 far as to say mental health evidence is mental he alth 13 evidence and it's all the same. 14 What they have instead focused on is the 15 evaluation that is performed. Absolutely, the De fense 16 has no right and we are not trying to suggest whi ch 17 expert does or does not get to evaluate on behalf of the 18 State. We have no problems with Dr. Reed as an e xpert 19 witness. It's that did she do the equivalent typ e 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 r eport19

1 and look at it and see is what she is doing is lo oking at 2 actual cognitive deficits. Because that's the un derlying 3 data that we're going to be focusing on in the wr it 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 counse l 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 sayin g, yeah, 13 and if you had, guess what I would have brought u p. So 14 is it ineffective or is it strategically decidingwhat 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 St ate 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 performanc e. 25 THE COURT: Right. But, if you are trying20

1 to evaluate whether counsel performed inadequatel y, 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 bro ught up. 5 MR. ROMIG: The problem with evaluating 6 that way, Your Honor, is it doesn't actually lookat 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 performa nce on 12 what they did pretrial. Whether the State brough t 13 forward another expert, at that point their perfo rmance 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 expe rt's 22 report. They wouldn't have known necessarily wha t 23 experts the State were planning on utilizing. 24 THE COURT: So am I understanding this 25 correctly? Judge Snipes sealed this from both si des?21

1 Defense has not reviewed it; State has not review ed 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 dur ing this 15 trial, and I imagine he has told Defense counsel, given 16 them some indication of whether he would be calli ng 17 Dr. Reed depending on what they did. Those thing s 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 lookingat the 21 economy of this issue. We hired this expert and paid 22 her. She did an evaluation. He has waived his F ifth 23 Amendment privileges. 24 Do I want to bring in another expert and do my 25 evaluation from scratch? I don't know, Your Hono r. But22

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 ourexpert 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. Us ually -- 21 often at trial there's an agreement between couns el, 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, Your23

1 Honor, we would think that if that sort of scenar io 2 is what is occurring that our experts need to hav e 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 d ata 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 cl aims, 19 are ineffective assistance of trial counsel, and those 20 ineffective assistance claims go to failure to 21 investigate and failure to present certain eviden ce. 22 The State's position is that Mr. Harris' trial 23 file documents their investigation. The trial fi le 24 documents the performance and the preparation, th e 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 buildi ng or 4 three other cases where they agreed to provide th e 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 relev ant 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 t o the 13 claims. In the third case, they agreed to provid e 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, whi ch the 17 Office of Capital Writs is very familiar with bec ause 18 they were involved in this case, the Court of Cri minal 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 Capi tal 23 Writs has filed, is that they acknowledge that Mr . Harris 24 has entered into a limited waiver to attorney-cli ent and 25 work-product privilege information in his file. That the25

1 issue has become what do we do based on that waiv er. 2 The State believes that the McCann case clearly 3 says on Page 3 and on Page 9 that the file belong s to the 4 client. I think what the Office of Capital Writs is 5 proposing based on an answer they filed last weekis that 6 it's up to trial counsel what the scope of this w aiver is 7 and what to provide. 8 And the State is opposed to that position 9 because they represent the client. The file belo ngs to 10 him. They're in possession of the file. Trial c ounsel 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 assis tance 17 claims and determining the scope of that waiver a nd trial 18 counsel determining what to turn over to the Stat e 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 c lient. 23 The privilege belongs to Mr. Harris. When he's w aived 24 it, we feel like they have a duty to review the f ile, 25 determine what relates to the ineffective assista nce26

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 re view 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 co ver -- 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 an d those 15 claims cover objections that were or were not mad e in the 16 guilt innocence phase, and those claims cover the 17 pretrial investigation. So the State cannot imag ine much 18 that might be in the file that would not relate t o 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 thei r 25 response.27

1 MS. YEATTS: Well, the problem is that 2 they want to make the claims of ineffective assis tance, 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, th ere are 7 four attorneys and -- so you are talking about fo ur 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. An d, to 12 put that burden on the Defense attorneys, the Sta te 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 c hilling 17 effect because they may be in fear that if they m ake a 18 mistake, if they analyze Mr. Harris' claims wrong , they 19 could be liable for a grievance. So there's a ch illing 20 effect to them putting this on the trial attorney s' 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 messe d up. 24 Here you go. Or, no, I didn't. Here you go. Be cause 25 then doesn't it affect you when you are in trial? Should28

1 I put this in my file because later it's discover able. 2 See, that's kind of the principle behind it becau se you 3 have a free flow of information with the defendan t. 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, a nd 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 mo re? 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 yo u'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 assis tance of 21 counsel here we've created a limited waiver of ot herwise 22 privileged information. I think the State's asse ssment 23 of our position is pretty close to spot-on where we 24 stand. 25 The State thinks because we've raised29

1 ineffective assistance of counsel claims that the n 2 they're automatically entitled to view trial coun sel's 3 files. It's our position that trial counsel is t he party 4 that should determine what information is relevan t 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 c ouple 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 bindin g 12 authority for the idea that the State is now enti tled to 13 access to trial counsel's files. What these case s 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 d iscovery 20 in this case in a lot of ways is really a breath- taking 21 proposition in my opinion in a criminal case. Invery 22 few scenarios is a defendant in a criminal case e ver 23 required to provide discovery to the State. 24 Now there certainly are some scenarios, for 25 example, if competency is being litigated, the de fendant30

1 would have to turn over relevant medical records. The 2 defendant would also have to provide limited disc overy 3 regarding experts that they want to put on at tri al. 4 But I think the discovery in those cases is 5 significantly smaller than what the State asked f or here. 6 And, perhaps, more importantly there's a specific 7 statute, case law and evidentiary rule that speci fically 8 requires that and in this case that just simply d oesn'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 c ounsel. 12 Now almost certainly they'll be arguing that tria l 13 counsel performed effectively, but they're not tr ial 14 counsel's representatives in this matter. And we don't 15 think it's appropriate for them to substitute the ir 16 judgment in for what trial counsel should be maki ng 17 determinations of what information is relevant an d 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' t rial 22 counsel and we've told them that we'll provide fo r them 23 copies of the file for their review. So they wil l have 24 access to those materials both to prepare themsel ves for 25 court and also to determine which of those materi als are31

1 necessary to put into the fact-finding process du ring 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 t alking 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 lo ok and 8 see what's in their file to determine what to rel ease, is 9 a Court such as yourself ordering that their enti re trial 10 file or to the extent that it's relevant and nece ssary 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 possi bility 18 of fear of reprisal from the Office of Capital Wr its 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 ag ainst an 22 attorney for turning over materials. And to be h onest, 23 Your Honor, I can't come up with a scenario in myhead 24 right now where that would be appropriate. I cer tainly 25 can't make a blanket statement, but I can't come up with32

1 any scenario off the top of my head right now or filing a 2 bar grievance or something along those lines woul d be the 3 appropriate remedy. 4 So, our position is basically -- we're asking 5 you certainly to deny the State's motion and thenkeep 6 the power where the case law supports that it sho uld 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 p rovided 15 and see if that's sufficient first before you mak e 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 pro vide 19 what they think is relevant to an ineffective ass istance 20 claim and to provide a privileged log and then I could -- 21 you know, Your Honor could view the privileged lo g and 22 the Court could also and if there's something on the 23 privileged log that you think we should have acce ss to we 24 would challenge it at that point. 25 THE COURT: I'm sorry. I cut you off. I'm33

1 going to come back to you. You weren't finished y et. 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 materi als to 5 the State but I was finished. Thank you, Your Ho nor. 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 Am erican 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 bin ding on 12 the Court. 13 Also, the problem is that the American Bar 14 Association opinion does not take into account th e McCann 15 case which says that the trial file belongs to th e 16 client, belongs to Mr. Harris. And I'm not sure with the 17 McCann case in existence that it would not be pro blematic 18 for trial counsel to turn over anything, anythinghard 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 onthe 22 stand and then we bring up the subject and then w e 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 be34

1 slowing down the hearing and we may be wasting th e Court 2 and the parties time. 3 In this instance the American Bar opinion talks 4 about that trial file should be provided only und er court 5 supervision, and I think that's where we are, You r Honor. 6 We are in the phase of court supervision. And inthe 7 instance of these writs, of course, the writ is f iled 8 with evidence attached; the affidavits of the exp erts, 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 w e're at 14 now, we would have normally in the past already h ave had 15 trial attorneys' testimony in the record. Becaus e the 16 Office of Capital Writs in the past has asked us not to 17 speak to the trial attorneys until after the Orde r 18 Designating Issues is entered, which we have done in this 19 case, we don't have evidence from the trial attor neys 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 Am erican 23 Bar Association opinions would then allow the Cou rt to 24 order those attorneys to provide portions of thei r 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 op posing 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 re ference 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 McCan n which 17 we think is essentially always been the law. It was 18 clarified, stated in McCann, that the file belong s 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 t he State 22 is asking here for in a criminal case, just massi ve 23 amounts of discovery without any case law, withou t any 24 statute, without an evidentiary rule; and we beli eve that 25 this power should be left for trial counsel to de termine36

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 W rits has 9 the duty and obligation here to review the file a nd 10 determine what's relevant. That's all, Your Hono r. 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 f or the 16 State, one, we would less likely take a mandamus up to 17 the Court of Criminal Appeals. So that might del ay -- 18 depending on how long the court took. Because th ere is 19 again no law or statute that talks about this typ e of 20 discovery. 21 Second, the issue of electronic versus paper. 22 The State has asked for electronic copy of our fi les. 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 electronic37

1 version. 2 The State would not give us an electronic 3 version. They made their files available to revi ew. If 4 this court was going to determine that the State should 5 have access to the files, at most the State shoul d come 6 to Austin and review the same way that we reviewe d their 7 files on paper without the electronic version. I t 8 certainly makes it easier for the State to have a n 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 fil e, 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 sc anned. 17 We believe the Office of Capital Writs already ha s this 18 on disks which they should have already and may b e 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 provi de an 24 electronic copy is they don't want the State to o ffer 25 that into evidence which has been done in the pas t. And38

1 we think that the file should be offered into evi dence 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 it ems they 8 wanted copies of. I provided those to them. The re 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 wen t that 15 way, we would make copies available to them. Als o, 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 ve rsion; 20 you do. So is it to make it more burdensome uponthem 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 w e do it39

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 tha t 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 thei r 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 moti ons; 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 discl ose 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 disclos e 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 o nly 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 thinkwe 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 Hono r. 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 re view 22 that and I'll have my court coordinator get in co ntact 23 with you all. You don't have to come back down h ere 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 some41

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- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2542

1 STATE OF TEXAS & 2 COUNTY OF DALLAS & 3 4 I, Vearneas W. Faggett, Official Court Reporter i n 5 and for the Criminal District Court No. 7 of Dall as, 6 State of Texas, do hereby certify that the above and 7 foregoing contains a true and correct transcripti on of 8 all portions of evidence and other proceedings re quested 9 in writing by counsel for the parties to be inclu ded in 10 this volume of the Reporter's Record in the above -styled 11 and numbered cause, all of which occurred in opencourt 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 exhi bits, 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: 12/31/201543

1 D I S C L O S U R E 2 Note: Supreme Court Rule Adopted and Promulgatedin 3 Conformity with Chapter 52 of the Governme nt 4 Code, V.T.C.A 5 6 7 Please be advised that pursuant to Supreme Co urt 8 Rule IV, B.5., with regards to disclosure, I, to the best 9 of my knowledge, have no existing or past financi al, 10 business, professional, family or social relation ships 11 with any of the parties or their attorneys which might 12 reasonably create an appearance of partiality, ex cept 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 Bl dg.

133 N. Riverfront Blvd. 20 Dallas, Tx 75207 21 22 23 24 25