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 Must Deferred Prosecution Deals be Secret?

County attorney denies victim of domestic
violence right to see deal her abuser got

by Ken Martin
© The Austin Bulldog 2017
Posted Wednesday July 5, 2017 1:59pm
Updated Wednesday July 5, 2017 2:55pm to add Coronado's statement about putting DPA online
Updated Wednesday July 5, 2017 3:40pm to strike incorrect sentence re: couldn't rely on previous determination
Updated Thursday July 6, 2017 10:08am to provide the correct blank form the county attorney uses for DPAs

The next stage in a legal battle over a prosecutor’s discretion to withhold certain records played out last Thursday in a state district court.

The Travis County Attorney’s Office and an intervenor in the county attorney’s lawsuit against the Texas Attorney General argued over which parts of the Texas Public Information Act (TPIA) would govern arguments when the matter goes to trial August 8.

Lora LivingstonLora Livingston“It’s prudent to give you a clear ruling on what’s going to trial,” Judge Lora Livingston of the 261st District Court told the attorneys at the conclusion of the hearing, after listening to nearly two hours of arguments.

On Friday, Livingston ruled that plaintiff Travis County Attorney must limit arguments in favor of withholding a Deferred Prosecution Agreement (DPA) to the same grounds the county stated when it asked the Attorney General for a ruling.

A DPA is an agreement signed by the prosecutor, the defendant and the defendant’s attorney. It sets forth conditions that if met will result in dismissal of criminal charges. (More details about DPAs later.)

In its request for a ruling from the Attorney General (AG), the county cited only what’s commonly called the “law enforcement exception” contained in Section 552.108(a)(1):

“Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from (release) if: release of the information would interfere with the detection, investigation, or prosecution of crime.”

Tim LabadieTim LabadieAt Thursday’s hearing, Assistant County Attorney Tim Labadie argued that the county had not cited other sections of the Act because previous determinations by the AG had allowed the very same DPA to be withheld.

He asked the judge for permission to claim several other exceptions set forth under Sections 552.108(a)(2), 552.103, and 552.107.

The judge denied his request.

Bill AleshireBill AleshireAttorney Bill Aleshire of Aleshire Law PC won the ruling by citing Section 552.326 which states, “the only exceptions to required disclosure … that a governmental body may raise in a suit filed under this chapter are exceptions that the governmental body properly raised before the attorney general in connection with a request for a decision regarding the matter….”

Why county sued the AG

The legal wrangling began when the AG’s office reversed a longstanding policy that had permitted DPAs to be withheld in response to a public information request and instead ordered this one to be given to the requestor.

In response the Travis County Attorney filed a lawsuit, David A. Escamilla, Travis County Attorney, v. Ken Paxton, State of Texas Attorney General (Cause No. D-1-GN-16-004769).

The woman who requested the DPA intervened in the suit.

Tara CoronadoTara CoronadoTara Michelle Coronado was the victim of domestic violence committed in May 2013. She reported the assault to the Bee Cave Police Department, which documented her injuries.

The criminal records concerning the assault and the arrest are public information. The abuse was detailed in an Austin American-Statesman story February 24, 2017, and in The Austin Bulldog’s story of February 25, 2017.

Ed CunninghamEd CunninghamHer husband at the time, Chet Edward “Ed” Cunningham, was arrested for Assault Family Violence, a Class A misdemeanor in violation of Penal Code Section 22.01(a)(1).

Nearly three years after the assault, on April 1, 2016, Cunningham and the Travis County Attorney’s office signed a DPA. The criminal charge was dismissed.

The specific terms that Cunningham must adhere to and how long those terms are binding on him have not been disclosed. The prosecutors who oversee DPAs retain the option to refile charges if a defendant fails to comply with the agreement.

Coronado was consulted by the County Attorney’s Office when the DPA was being negotiated. She has not seen a copy of it. The assistant county attorney who handled the case provided to Coronado somewhat different descriptions of what the DPA required of Cunningham in two separate emails in April 2016.

Coronado documented and reported to the County Attorney’s Office events that she understood to be violations of the DPA but saw no repercussions for Cunningham.

Files public information requests

On April 11, 2016, Coronado requested a copy of Cunningham’s DPA so she would be able to report any violations that might occur. On May 6, 2016, the AG responded to the county attorney’s ruling request, stating, “We have considered your arguments and the submitted information and have determined that in accordance with Section 552.108(a)(1) you may withhold the submitted information.”

Coronado filed a second public information request for the DPA May 11, 2016, and it was rejected by the Travis County Attorney’s Office based on the AG’s previous determination of May 6.

Not to be dissuaded, a third public information request for the DPA and numerous related records was filed on Coronado’s behalf July 12, 2016, by Laura Bates, staff attorney for the SAFE Alliance.

Because Bates’ request asked for more than just the DPA, the county attorney’s office could not rely upon the AG’s previous determination. Once again an AG’s ruling was sought. And once again the ruling request cited only Section 552.108(a)(1).

This time the AG did not permit that exception, noting, “The defendant signed the agreement, acknowledging his receipt of the agreement. Thus, because a copy of the agreement had previously been released to the defendant, we find you have not shown that release of the agreement would interfere with the detection, investigation, or prosecution of crime; thus the agreement cannot be withheld under Section 552.108(a)(1).”

In defense of policy

In addition to oral arguments to be presented at trial, to defend the county attorney’s policy, Labadie will call two witnesses, according to his June 30 filing.

Assistant County Attorney Mack Martinez, director of the Family Violence Division, the filing states, is of the opinion that, “Making Deferred Prosecution Agreements public information will interfere with the prosecution of crime”

“Also, making these agreements public, especially by posting them on the Internet, as Ms. Coronado wants to do, might put victims at risk and might deter victims from reporting family violence.”

Tara Coronado disputes the claim that she would post Cunningham’s DPA to the Internet. She told The Austin Bulldog, “I never said I want to put the DPAs on the Internet. This is something Labadie asserted and it has no basis in truth. I have absolutely no social media and have no desire or intent to put the DPA online.”

Martinez has been licensed to practice law since 1978 and has worked in the county attorney’s office since 1995.

Randy LeavittRandy LeavittRandy Leavitt maintains a private practice at the Law Office of Randy Leavitt in Austin. He has been licensed to practice law in Texas since 1980. From 2004 to 2009 he was first assistant Travis County attorney.

“Leavitt will testify about the use of deferred prosecution by the Travis County Attorney’s Office, both from the perspective of prosecutor and a criminal defense attorney,” the filing states. “Deferred prosecution is an essential and valuable tool used by prosecutors to resolve criminal cases.”

The filing also states that Martinez and Leavitt will testify regarding one of the answers provided in response to Coronado’s interrogatories. But the answers to those interrogatories are under seal and not publicly released.

That seal bothers Aleshire, who said, “County Attorney Escamilla so values secrecy about what his office is doing with Deferred Prosecution Agreements even the opinions of his expert witnesses is kept secret from the public.”

Enforcement of DPAs

Although Martinez could not talk about the specific DPA in Cunningham’s case, he told The Austin Bulldog in a February 24, 2017, phone interview that DPAs are usually for a period of one year or two years. Counseling is required in 99 percent of them, he said.

Martinez, who has been overseeing domestic violence cases for 22 years, said when he learns that a defendant may have violated the terms of a DPA, he looks into it and takes appropriate action, up to and including pressing charges.

“I don’t have a problem if you get tired of going to jail before I get tired of sending you to jail,” he said. “The community expects this type of behavior to be punished and we work hard at it.”

“Our job is to look at these facts and where there is domestic violence we need to break that cycle of violence. There needs to be intervention. People need to understand there are consequences if they don’t stop.”

Why should DPAs be secret?

On a federal level, the U.S. Attorney General has published hundreds of DPAs on the Department of Justice website. Here are few examples picked from those publicly available:

Healthcare products maker Johnson & Johnson entered a DPA and agreed to pay a $21.4 million fine for violations of the Foreign Corrupt Practices Act.

Barclays Bank PLC forfeited $298 million to the United States and New York County District Attorney’s Office under a DPA for violations of the International Emergency Economic Powers Act and the Trading with the Enemy Act.

In another DPA Western Union forfeited $586 million while admitting to Anti-Money Laundering and Consumer Fraud violations.

Leslie CaldwellLeslie Caldwell“Where we enter into DPAs, a criminal information is filed with the court and prosecution of the information is deferred for the time of the agreement,” said Leslie Caldwell, assistant attorney general for the Criminal Division, in an April 2015 speech.

“Where a company fails to live up to the terms of its agreement, an information is already filed, and we can tear up the agreement and prosecute based on the admitted statement of facts. That’s a powerful incentive to live up to the terms of the agreement.”

The Travis County Attorney Attorney’s Office handles DPAs under similar procedures but contends that releasing them publicly would not serve the ends of justice.

Regarding the DOJ policy, Aleshire said, “Some people would be surprised to know that Attorney General Jeff Sessions is more transparent with his deals with criminal defendants than Travis County Attorney David Escamilla has been.  Perhaps a court will require Mr. Escamilla to meet General Sessions’ standard of transparency in the criminal justice system.”

David EscamillaDavid EscamillaWhile these federal crimes are rolled out publicly for all to see, Travis County Attorney Escamilla has long maintained a policy that conceals the terms and conditions that criminal defendants must meet under DPAs.

Now his policy will be challenged at trial. In his June 23, 2017, comments to the Attorney General regarding Coronado’s public information request, Aleshire wrote:

“The very notion that a prosecutor can make a deal, a written contract, with a criminal defendant and keep that deal secret seems bizarrely inconsistent with the principle of holding our public officials accountable. How can the public know if a prosecutor is being fair and not discriminating based on the gender, ethnicity, wealth, status, or political affiliation of the criminal defendant if such deals can be kept secret?

“If such a deal in a criminal court case is made as a ‘deferred adjudication,’ the terms of that deal are approved by the Judge and are a public court record, but the Travis County Attorney does not file his ‘deferred prosecution’ contracts with the court; he keeps them secret between himself and the criminal defendant.

“Even the crime victims cannot get a copy of the contracts involving their family-abuse perpetrators from the County Attorney without a ruling from the Attorney General or a Court order,” Aleshire wrote.

In Coronado's case, even the Attorney General's ruling was insufficient because the County Attorney exercised the option under the TPIA to file suit to overturn the AG's ruling.

Because Escamilla filed a motion to ask the courtroom be closed and all exhibits be permanently sealed, The Austin Bulldog filed a motion to intervene in opposition to these requests. So did Coronado. Whether to close the courtroom and seal the exhibits was not argued in Thursday’s hearing.

Aleshire represents both Coronado and The Austin Bulldog.

What’s a DPA?

A DPA is an agreement between a prosecutor’s office and a defendant who has been charged with a criminal offense. A blank form (see link below) pulled from a private law firm’s website was designed to be is used by the Travis County Attorney’s Office to execute DPAs. It is unclear whether this blank form is identical to the one currently being used by the County Attorney’s Office. The Austin Bulldog has filed a public information request to obtain the current form.

The form found online indicates that the defendant and his attorney must sign to admit, among other things, that: “I understand the allegations against me. I hereby voluntarily confess that they are true.”

DPAs are tailored to the type(s) of offenses involved. They may require a defendant to undergo a Domestic Violence assessment, an Alcohol/Substance Abuse assessment, and to complete certain required courses related to the offense. Community service may be required as well, and the defendant may be required to forfeit weapons.

The DPA may include a stay-away order under which the defendant is to have no contact with the victim and to avoid going within 200 yards of specified locations, such as the victim’s home and place of work.

Once the DPA is executed, it has been the county attorney’s policy to drop all charges against the defendant but, during the period of time the agreement is in effect, “Defendant shall not commit any other offense(s) above that of a Class C moving traffic violation.”

“If the defendant fails to comply with or violates any of the specified terms and conditions of this agreement, then the Travis County Attorney is no longer subject to the agreement and may refile the charges and prosecute the case to the full extent of the law,” the form states.

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain our independent coverage by making a tax-deductible contribution.

Links:

Plaintiff's Original Petition, September 26, 2016 (6 pages)

Defendant's Original Answer, October 28, 2016 (3 pages)

Rule 11 Scheduling Agreement, January 4, 2017 (1 page)

Agreed Protective Order, January 5, 2017 (5 pages)

Plaintiff's Motion to Seal Court Records, February 1, 2017 (6 pages)

The Austin Bulldog's Petition in Intervention In Opposition to Plaintiff's Motion to Seal Court Records and to Close Courtroom, February 21, 2017 (7 pages)

First Amended Rule 11 Scheduling Agreement, February 21, 2017 (1 page)

Verification of Public Notice of Motion to Seal Court Records, February 22, 2017 (2 pages)

Tara Coronado Cunningham's Application for Intervention, February 22, 2017 (31 pages)

Tara Coronado Cunningham's Motion to Oppose Sealing of Court Records, February 22, 2017 (1 page)

Tara Coronado's First Amended Petition, March 6, 2017 (16 pages)

Defendant's Objection to Plaintiff's Motion to Seal Court Records, March 7, 2017 (9 pages)

Plaintiff's First Motion for Summary Judgment, March 7, 2017 (55 pages)

Tara Coronado's Request for Admissions, Interrogatories, and Production, April 17, 2017 (9 pages)

Tara Coronado's 2nd Interrogatories and Requests for Production, April 27, 2017 (5 pages)

Agreed Scheduling Order, May 11, 2017 (2 pages)

Tara Coronado's Special Exceptions and Motion to Strike, May 23, 2017 (6 pages)

Tara Coronado's List of Trial Witnesses, June 23, 2017 (2 pages)

Plaintiff's Response in Opposition to Tara Coronado's Motion to Strike, June 26, 2017 (124 pages)

Tara Coronado's Reply & Objections to Travis County Attorney's Response, June 27, 2017 (7 pages)

Declaration of Ann-Marie Sheely, June 28, 2017 (20 pages)

Tara Coronado's Objection to Declaration of Ann-Marie Sheely, June 28, 2017 (3 pages)

Notice of Hearing on June 29, 2017 (2 pages)

Plaintiff's Post-Hearing Brief, June 30, 2017 (4 pages)

Tara Coronado's Reply to Plaintiff's Post-Hearing Brief, June 30, 2017 (4 pages)

Judge Lora Livingston's Ruling, June 30, 2017 (2 pages)

Plaintiff's Supplemental Responses to Tara Cunningham's Requests for Disclosure, June 30, 2017 (7 pages)

Blank Form for Travis County Attorney's Deferred Prosecution Agreements (8 pages).

Related Bulldog coverage:

County Attorney Escamilla Wants to Close the Courtroom, Seal Records: ‘The Austin Bulldog’ intervenes to oppose this unusual action to deny public access, February 25, 2017

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