Defendant wants to see Affidavit
TX
No one has been able to obtain a copy or even see the Affidavit to the Search Warrant in our case. We have an attorney but he has not done his job. He never requested the Affidavit in Discovery even though we requested him to do so several times. It states in Article 18.01 of the Code of Criminal Procedure that if executed then the Affidavit is public information and may be viewed at the magistrate clerk's office during normal business hours.
We have been to the magistrate' clerk's office and requested to view the Affidavit and were informed there was no Affidavit on file there. If it is supposed to be public information then how do we go about getting to see this document without our attorney?
We have felt from the beginning that there is a problem with the Affidavit because of all the run around we have gotten trying to obtain it, and as our attorney has missed the Discovery deadline for whatever sorry reason, what steps can we now take to view the Affidavit before our court date?
Re: Defendant wants to see Affidavit
Fill out a FOIA, Freedom of Information Act form requestion to see the Affidavit.
In a lot of states/cities information is not given out before the court case. Sometimes the police report is not given out, depending what it is about and to whom it is given to until the case is over.
Sometimes the police department have lost papers. They have lost reports with my cousin and I before. Each one of us had to make a new report. Or maybe the police just want to keep it for evidence, not making a copy for the record department yet.
Re: Defendant wants to see Affidavit
A FOIA request is meant to be used to obtain NON-PUBLIC documents - not ones that are potentially public. Plus, the FOIA is a federal process. There are state laws that govern the release of state records.
In the poster's case they would likely have to hire anm attorney to force it loose from the state IF there is no an exception preventing it's disclosure at this time. Most states have a process where the prosecution can delay or withhold the affidavit, so perhaps this is one of those cases. As part of routine Discovery, the defense attorney should be able to access this document. Hire another defense attorney and have him get this.
- Carl
Re: Defendant wants to see Affidavit
This is getting complicated. We are down to the wire on this case. The attorney of record failed to meet the discovery deadline and did not request the copy of the affidavit as I stated before. Our funds are basically exhausted but we managed to hire another attorney to go poke around and see what was going on. Sure enough, the D.A.'s office can not find the affidavit. They couldn't even find a copy of the search warrant to obtain the date the warrant was issued to go into any and all available files as papers are filed according to dates.
They are telling me that even if they do not find the affidavit that at this late date there's nothing we can do unless we get the judge to agree to a continuance and we substitute in the new attorney. We can't afford to pay a new attorney and the only other solution is request public defender.
What form do we use to present to the court that we want to fire our present attorney and request a public defender?
Any advice?
Also, the property was seized under Article 18.10 instead of Art.59 (forfeiture)
Is the return of property pending a conviction?
Re: Defendant wants to see Affidavit
I doubt that there's a form, as such - you can ask at the courthouse. You would probably have to submit a motion, drafted for the specific need. If you speak to your lawyer, your lawyer may be convinced to file a motion to withdraw from the case.
Re: Defendant wants to see Affidavit
You normally wont get discovery until charges are filed. They will purposely drag things out under the veil of "Its an ongoing investigation" That can drag a case on for years. They could still be following you or keeping you under surveillance in hopes of gathering more evidence against you. Unless your seized items are part of the ongoing investigation, you will typically get them back within 6 months. That is if they havent mysteriously dissapeared from the evidence room.