Scorched Earth Record Collection

1. Scorched Earth Record Collection Kirsty Davis kirsty@gracelaw.org April 2011

2. Types of Records • Private Records • Need a release or subpoena. • Public Records • By request or courthouse searches.

3. Record Collection • Start immediately, • Don’t wait for state to seek death. • Don’t wait for mitigation specialist. • Releases from client and all family immediately – multiple copies. • Easy and cheap but long lead time. • Records Log & Narrative.

4. Rules to follow • Collect private records with releases, not subpoenas. • Client’s family – 3 generations. • Courthouse searches on every name that appears in the file. • Do the digging yourself – Accurint is good for locating a witness, not for courthouse searches. • Certification. • No Record? Get it in writing.

5. Medical – all hospitals from birth to present, free clinics whether client reports having gone Educational – headstart, alternative schools, GED Mental Health – same searches as medical Rehabilitation – Drug Treatment Prison – current case, ALL previous cases, ALL previous arrests Probation – adult or juvenile, community service, parole, required classes (i.e. anger management, etc.) Military Financial – Any bank information, property Welfare/social services – including CPS, Food stamps, homeless/domestic violence shelters, Medicaid, etc. Social Security Public Housing Employment - Job Corps, pay stubs, applications Church or youth groups Birth certificate Dental records Personal Records With Release: Client’s Records

6. Medical – all hospitals from birth to present, free clinics whether client reports having gone Educational – headstart, alternative schools, GED Mental Health – same searches as medical Rehabilitation – Drug Treatment Prison – current case, ALL previous cases, ALL previous arrests Probation – adult or juvenile, community service, parole, required classes (i.e. anger management, etc.) Military Financial – Any bank information, property Welfare/social services – including, CPS, Food stamps, homeless/domestic violence shelters, Medicaid, etc. Social Security Public Housing Employment - Job Corps, pay stubs, applications Church or youth groups Birth certificate/death Dental records Client’s Family – Three Generations

7. How To Get The Records: • Once know the name of the institute, do a google search, look up their number, call them and ask how to request records. • Fax rather than mail, get the name of the person to send it directly to rather than just send it to the “Records Department” – it’s faster. • Check whether they require their own release to be signed - ADOC Medical Records: The release must be dated and witnessed. This is accomplished by requesting a client’s records; ADOC then has a staff member bring the client a release to sign. • Use photocopies of releases when possible – they will run out. • Make sure you send a HIPAA release when there may be medical records – not just to medical institutes.

8. Special Rules for Medical Records • Releases must comply with Health Insurance Portability and Accountability Act (HIPAA) • This includes psychotherapy notes, Medicare and Medicaid, pharmacies, and substance abuse facilities • http://www.hhs.gov/ocr/hipaa/ • http://privacyruleandresearch.nih.gov/ • Often they require original signatures.

9. Don’t fear legalese Demand statutory authority for resistance to accepting your release!!!

10. What Release Must Include, 45 Code of Federal Regulations § 164.508(c)(1): • List of all types of records meant to be covered by the release (esp. HIV/AIDS information, mental health) • Name of person authorized to make disclosure (i.e. hospital or clinic) • Name of person/entity to whom disclosure can be made (list defense team members) • Purpose of the disclosure (“in representation of Joe Client”) • Expiration Date (i.e. ten years from the date signed) • Signature and Date • the date range of the records, even if that means birth to present

11. Mandatory Language, 45 CFR § 164.508 (c)(2) • Individual’s right to revoke authorization for disclosure • Information regarding possible re-disclosure • The entire release must be in plain language

12. Special Rules Governing Psychotherapy Records • Under 45 CFR § 164.508 (b)(ii)you may need separate release for psychotherapy notes

13. Courthouse Searches • On EVERY name on your People List, including • Dead or Alive • Friendly or Hostile • Witness or Not • Victim and Family • Professional and Lay Witnesses • Even if you think you already know the answers, look anyway!

14. Courthouse Searches, II • Re-do Searches Periodically for time period since the last search • Coordinate with the Culpability phase investigator for efficiency and take turns doing the entire list at once • Ask Attorney to get Order signed so that you pay little or nothing for copies

15. What is a complete courthouse search? • Criminal – both state and federal, felony, misdemeanor, traffic, municipal, Justice of the Peace • TIP: You want the entire Clerk’s File for every case • Civil – both federal and state, property, tax, family (marriage, child custody, divorce, child support), civil suits (car accidents, civil rights suits, etc.), wills & probate, bankruptcy • Vital Records – birth, death, marriage, name changes • Registries – Doing Business As, vehicle taxes, public oaths, public adoptions • Voter registration

16. Useful Courthouse Websites: • Maricopa County (Phoenix): This county has the most comprehensive and easiest to use search. The following searches can be used for Superior and Justice Courts. • Minute Entries: http://www.courtminutes.maricopa.gov/ • Dockets: http://www.superiorcourt.maricopa.gov/docket/index.asp • Pima County (Tucson): • Superior Court Records are generally only searchable at the courthouse or by employees of the indigent defense offices • Some records, including case names and numbers, dockets, and occasionally records from family court and other matters may be viewed on the Court Clerk’s website: http://www.cosc.co.pima.az.us/home.asp?Include=pages/record_search.htm • Justice Court Dockets: http://www.jp.pima.gov/casesearch3/ • Tucson City Court Record Search (misdemeanors and traffic): http://cms3.tucsonaz.gov/courts/QDPS/Search/CitySearch.aspx

17. Cont… • Rural Counties: • Arizona Judicial Branch Public Access to Court Information: http://apps.supremecourt.az.gov/publicaccess/caselookup.aspx?AspxAutoDetectCookieSupport=1 • Case dockets are viewable for most county Superior and Justice Courts. Minute entries are sometimes available, but not reliably. • Courts of Appeal and Supreme Courts • View dockets, calendar, party index, and attorney index for active cases only: http://apps.supremecourt.az.gov/aacc/asc/ascmain.htm • Prior cases are not viewable

18. Public Records Requests • Protocols and other institutional documents on all governmental entities involved with your client or his family in any way at any time: • Welfare, Housing, Social Services, Juvenile Detention, TYC, orphanages, Boys Home, Child Protective Services, Special Education Programs, Schools, Mental Health providers, public health providers, hospitals, law enforcement, crime labs, probation departments, jails, prisons, half-way houses, rehab programs, sex-offender programs, etc., etc., limited only by your imagination!

19. Law Enforcement Files for Every Prior of Anyone on People List (including possible snitches) • County Law Enforcement (Sheriff’s office) • Department of Public Safety (State Troopers) • Rangers – Part of DPS • Medical Examiners office - some smaller counties use ME’s from larger neighboring counties. • Toxicology • Trace Evidence • Histology • Serology • Crime Labs • Possibly same as above • Photography • Centralized Evidence • Firearms Labs

20. Places to collect records on • Crime Scene • All 911 calls • Ownership • Liens • Suits • Insurance • Every place your client lived • 911 calls from the area • CPS records • Information about the neighbors • Information on the neighborhood • Ownership of property in the area

21. Arizona Public Records • Arizona Revised Statutes, Title 39. Public Records, Printing and Notices. • A.R.S. §. 39-121.01. Definitions; maintenance of records; copies, printouts or photographs of public records; examination by mail; index” • “Any person may request to examine or be furnished copies, printouts or photographs of any public record during regular office hours or may request that the custodian mail a copy of any public record not otherwise available on the public body’s web site to the requesting person. The custodian may require any person requesting that the custodian mail a copy of any public record to pay in advance for any copying and postage charges. The custodian of such records shall promptly furnish such copies, printouts or photographs and may charge a fee if the facilities are available, except that public records for purposes listed in section 39-122 or 39-127 shall be furnished without charge.”

22. Records Available: • Basically, anything you can think of that emanates from a governmental agency • A.R.S. §. 39-121.01.: “All officers and public bodies shall maintain all records, including records as defined in section 41-1350, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by monies from the state or any political subdivision of the state.”

23. What is a Public Record? • As a general rule, “all records required to be kept under A.R.S. § 39-121.01(B) are presumed open to the public for inspection as public records.” Carlson v. Pima County, 141 Ariz. 487, 491, 687 P.2d 1242, 1246 (1984). Section 39-121.01(B), A.R.S., requires all officers and public bodies to maintain records, including records defined in A.R.S. § 41-1350, reasonably necessary to provide an accurate accounting of their official activities and of any government-funded activities. Section 41-1350, A.R.S., defines “records” as all books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics, including prints or copies of such items produced or reproduced on film or electronic media pursuant to § 41-1348, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government, or because of the informational and historical value of data contained therein.

24. Examples of information available: • a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, not including pending law enforcement investigations; • the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of governmental body; • all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body; • all formal and informal policies and procedures; • a rule of procedure, a description of forms available or the places at which forms may be obtained, and instructions relating to the scope and content of all papers, reports, or examinations; • a policy statement or interpretation that has been adopted or issued by an agency; • administrative staff manuals and instructions to staff that affect a member of the public;

25. Public Records Act Exceptions (Texas) • Law enforcement exception • Closed file vs. open file • Personnel files - Civil Service Records • home addresses, phone numbers and SSN redacted • information deemed confidential by constitutional law, statute, or judicial decision • where disclosure would constitute a clearly unwarranted invasion of personal privacy • certain information concerning pending criminal or civil litigation to which the governmental body or employee is party • records of law enforcement agencies and prosecutors dealing with detection, investigation, or prosecution of crime, but only if the release of the requested information will unduly interfere with law enforcement and crime prevention.

26. Public Records Requests to Make (at least): • Every prior arrest of client, family member or potential witness: • Law enforcement files, D.A.s and their investigators, police, Sheriff, DPS, forensic crime labs (including private contractors), State Troopers, Rangers, DPS, Coroners/Medical Examiners Sheriff, Police, Fire dept., FBI, DEA, BIA, ATF, Homeland Security, etc. • 911 calls for addresses where client grew up • Personnel and/or civil service files of all state actors • For every public agency relevant to current case or client’s past history (incarceration, welfare, rehab, etc.): • funding, expenses, budgetary concerns, handbooks, procedures, policy manuals, testing, evaluations • First names and dates of birth for public school teachers

27. Drafting your Request: • Must be in writing • No magic language required • Generally speaking, agencies have 10 days to respond or appeal to the Attorney General’s Office (Texas) • If denied, you can file a writ of mandamus

28. Public Information Act (Texas Government Code, Chapter 552) • A person's motive for requesting the information cannot be a consideration • § 552.222 specifically prohibits the officer for public information from making any inquiry of a requestor other than to establish the requestor's proper identification, to clarify a request if the governmental body is unclear as to what information is requested, and to attempt to narrow a request that seeks a large amount of information. • "[T]he form in which a governmental body stores information does not affect its availability." Tex. Att'y Gen. ORD-461, at 3 (1987). You can get documents, recordings, DVDs, whatever • Great Resource: http://www.rcfp.org/cgi-local/tapping/index.cgi?key=TX

29. Federal Freedom of Information Act, 5 U.S.C. § 552 • “The process is neither complicated nor time consuming.” US DOJ • FOIA reference guide, http://www.usdoj.gov/04foia/04_3.html

30. Where to get the contact information for individual agencies • http://www.usdoj.gov/04foia/foiacontacts.htm • Postal Rate CommissionSteven W. Williams Secretary Suite 300 1333 H Street, N.W. Washington, D.C. 20268 telephone number: (202) 789-6840 fax number: (202) 789-6886

31. Letter Generator for FOIA requests http://www.rcfp.org/foi_letter/generate.php

32. Aimee Solway2401 Fletcher St. Houston, TX 77009713-256-1923 • April 10, 2006 • FOIA/PA Officer USDA Food Safety and Inspection Service Room 1164-South Washington, DC 20250 • FOIA REQUEST • Dear FOI Officer: • Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I request access to and copies of all records pertaining to chicken. • I agree to pay reasonable duplication fees for the processing of this request in an amount not to exceed $40. However, please notify me prior to your incurring any expenses in excess of that amount. • If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees. • As I am making this request as a lawyer and thi\s information is of timely value, I would appreciate your communicating with me by telephone, rather than by mail, if you have questions regarding this request. • I look forward to your reply within 20 business days, as the statute requires. • Thank you for your assistance. • Sincerely, • Aimee Solway

33. What happens next: • 20 days to respond, but doesn’t have to be the actual records, just an acknowledgement and anticipated action • Administrative appeal and federal lawsuits available

34. Other Arizona - Specific Searches • ADOC: Arizona Department of Corrections allows searches of current and former inmates: http://www.azcorrections.gov/inmate_datasearch/Index_Minh.aspx • Inmate files (except for medical records) can be obtained by contacting ADOC with the inmate’s name, date of birth, and ADOC number • Vital Records (view birth certificates for births 1855-1935 and death certificates for deaths 1844-1960): http://genealogy.az.gov/

35. Expert Witnesses • CV and credentials/accreditation • Licensure Boards • Articles published • Testimony from previous cases

36. Victim records • Public records • Court house searches • Funeral Home books • Obituary • Discovery?

37. Newspaper/Media • Lexis-Nexis • Local library, local papers • Internet media sources

38. Prior proceedings • Transcripts & depositions • Court reporters • Appeals courts • Case files • Attorneys

39. A few more links to check out • https://secure.sbec.state.tx.us/SBECONLINE/virtcert.asp • Information on Texas school teachers • http://www.tmb.state.tx.us/ • Information on physicians • State Bar of Texas – www.texasbar.com • http://texas.schooltree.org/counties-page1.html • Good source for information on Texas schools • http://scholar.google.com/ • Good source for academic articles

40. SDTs - subpoenas duces tecum • When would you consider a SDT? • Need to discuss as team everything that could be in the records. • Serving SDT.

41. Discovery • Any mitigating information, including expressions of remorse or regret about crime, evidence of impairment or mental health issues, prior involvement in state schools, prisons. • File motions to notify state of types of mitigating evidence that might be in its possession • Once they are “on notice,” they have obligation for other state agencies as well as those participating in the prosecution

42. Collecting and Creating Demonstrative evidence • Artifacts of a life: Photos, ribbons, art, yearbooks, certificates, trophies, etc. • Demonstrative Evidence – Current photos of the client's ram shackled home, neighborhood, school, community, etc.; Videos; family trees

43. Demographic Research: • Investigating your client's community:  social issues and racial makeup, economics, education, availability of social services, politics, etc.