Lawyers for accused murderer Willie Clark say they do. Other defense attorneys agree. But prosecutors do not; they say attorneys regularly have access to police files.
The issue came up yesterday at a pre-trial hearing in connection with Clark's case. Clark, 26, is accused of murdering Broncos cornerback Darrent Williams in a drive-by shooting on New Year's Day 2007 after an altercation at a club on Broadway. His trial starts Tuesday; Westword will be offering daily coverage.
Clark's lawyers argued that Detective Michael Martinez withheld from them his so-called "brown file," which prosecutors describe as an ancillary file kept in big homicide investigations that contains information that the detectives deem irrelevant, such as newspaper clippings and leads that didn't pan out.
Clark's lawyers, however, say the stuff in Martinez's brown file was incredibly relevant. It included information about nine new witnesses, a summary of a wiretapped call between two key witnesses, and maps of the scene drawn by eyewitnesses who say that another man -- not Clark -- was trying to instigate a fight with Williams's entourage at the club.
Clark's lawyers did not see the contents of the brown file until mid-January, about a month before his trial was scheduled to begin. Other evidence was given to them at the last minute, too, including security tapes from inside the club and a 122-page ballistics report.
The last-minute evidence puts them in "the position of playing catch-up in the final week before a long and complex trial," Clark's lawyers argued, asking that the case be dismissed. They also asked that the judge put a stop to the Denver police's "consistent and continuing pattern" of withholding evidence.
Judge Christina Habas did not dismiss the case, and also declined to make a broad ruling on brown files in general. But she did impose sanctions on prosecutors for not turning over evidence connected to this case in a timely manner. Prosecutors argued that Clark's lawyers had known about the brown file since October 2008, when Clark was indicted for the murder, and had been invited several times to make an appointment with Detective Martinez to view it. But according to Clark's lawyers, it was difficult to schedule a time to do so; Martinez canceled their meetings repeatedly, a fact Habas called "troubling."
When contacted by Westword, two defense attorneys who are not involved in the Clark case but have litigated other murder cases in Denver said they've never heard of "brown files." Another lawyer, Jim Castle, a longtime Denver criminal attorney who used to work as a public defender, says the files are a big -- if little-known -- problem.
"I think the brown file concept is designed to hide evidence," Castle says. The detectives "have something they don't want to give to the defense, and they know prosecutors must do that."
Generally, prosecutors collect evidence from the police and then share it with the defense. But they don't do that with brown files. Instead, attorneys who want to view the files have to make appointments with the busy detectives -- which Castle describes as like "trying to catch smoke with a net."
Like Clark's team, Castle is concerned that the use of brown files won't stop unless the court puts its foot down. And even then, he's skeptical. "What if they say, 'I'm going to come up with a green file now'?" he asks. "The system isn't supposed to be designed that way. The system is supposed to be designed for full and open disclosure from the government to the defense, and the reason for that is because their client's life is on the line."