Off the Kuff Rotating Header Image

Reciprocal discovery

There’s a bit of controversy brewing over one of the criminal justice reforms that have been proposed. The bill at issue was filed on deadline day.

Senate Bill 1611 would enact uniform discovery requirements in criminal cases across Texas. It would require prosecutors to give defense lawyers evidence in their files and to include essentially everything except their own notes about strategy. It would require defense lawyers to share evidence as long as it doesn’t include their strategy plans or violate the defendant’s right against self-incrimination. The measure also spells out that lawyers on both sides would have an ongoing duty as the case continues to reveal information, and it would provide sanctions in cases where the discovery requirements are violated.

[Sen. Rodney] Ellis, D-Houston, said the bill would make the justice system fairer and save taxpayers money that is often spent in long, expensive court battles and on compensation to those who have been wrongfully convicted.

“Ensuring all evidence comes to light and that all the relevant facts are weighed will improve the reliability of the justice system,” he said. “Texans deserve a system they know will protect the innocent, convict the guilty, and is instilled with the fairness and integrity justice demands.”

Nearly every other state has discovery requirements similar to those outlined in SB 1161, and requiring reciprocal open discovery was a recommendation in the August 2010 report from the Timothy Cole Advisory Panel on Wrongful Convictions. Then-state Rep. Pete Gallego, D-Alpine, filed a similar bill in 2011, which did not pass. Under current law, prosecutors are required only to divulge basic information about the crime to a defendant’s lawyer, and they’re only forced to do so if a judge orders it.

Ellis and Sen. Robert Duncan are the authors of this bill. I was curious to see how the defense bar would react, since they had raised concerns about the direction of this legislation before it was filed. It seems their concerns have not been assuaged.

The Texas Criminal Defense Lawyers Association this weekend approved a resolution opposing the legislation.

“The only ones who ought to open their files is the prosecution; they have the burden of proof,” said Bobby Mims, president-elect of the association.

Momentum to pass legislation that requires both district attorneys and defense lawyers to share their files has grown in the wake of wrongful convictions in which prosecutors allegedly withheld critical evidence. Such laws, proponents argue, would prevent convictions like that of Michael Morton, who was exonerated in 2011 after spending nearly 25 years in prison for his wife’s murder. His lawyers allege that the district attorney in Morton’s case deliberately kept information from defense lawyers that could have prevented his conviction and led to the real killer. Morton himself has supported legislation to require open discovery.

Some criminal defense lawyers over the last decade have led the fight against reciprocal discovery proposals in Texas. The association says the measure is unnecessary, would result in a flood of expensive, unneeded paperwork and would give prosecutors too much access to their clients’ information. It is the prosecution — not the defense — that bears the burden of proof in criminal cases, and defense lawyers argue they should not have to reveal their clients’ hands. What’s more, they say the legislation would do nothing to prevent tragedies like Morton’s.

“We have numerous problems in the criminal justice system,” said Keith Hampton, a veteran criminal defense lawyer in Austin. “Discovery is no longer it.”

[…]

Though they are not required to do so, Mims said, most prosecutors in Texas already have some type of open file policy that allows defense lawyers access to evidence against their clients.

Ellis’s legislation, he said, would require expensive and lengthy document production that would drive up the cost to taxpayers who foot the bill for indigent defendants. And he worried that the requirements would inundate lawyers with unnecessary files.

But the biggest worry for defense lawyers, Mims said, is that providing witness lists to prosecutors could lead to witness intimidation.

“The fact that a prosecutor is ethical doesn’t mean his investigators or other police officers are, too,” Mims said.

For all the heartburn it is likely to cause, Mims said, the law would not prevent what happened to Morton from happening to others. No legislation can ever stop a police officer or prosecutor who wants to hide evidence, he said.

Instead, he said, the TCDLA strongly favors Senate Bill 825, a measure by state Sen. John Whitmire, D-Houston, which [was] heard Tuesday in the Senate Criminal Justice Committee, which the senator leads. The measure would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire’s proposal, which Morton also supports, would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison.

The association also supports House Bill 166 by State Rep. Ruth Jones McClendon, D-San Antonio, which would create an innocence commission to examine wrongful conviction cases and recommend improvements to the criminal justice system to prevent them in the future.

The Texas Defender Service supports SB1611, but as you saw in that earlier link that didn’t cut any ice with the TCDLA. I’m not an attorney, let alone a criminal defense attorney, so I do not presume that I understand this issue better than they do, but I am curious about something. If it really is the case that most other states do things the way the Ellis/Duncan bill would have Texas do, is it truly that Texas’ way is better, at least from a criminal defense perspective, or is it just that Texas’ way is good enough and it’s not worth mucking with? Like I said, I’m just curious. In any event, Sen. Whitmire’s SB 825 has passed out of committee, and that would unquestionably be a step forward. Grits has an excellent writeup about it. We’ll see how it goes with SB 1611.

Related Posts:

One Comment

  1. […] done all around. When SB1611 was first introduced, it was opposed by the Texas Criminal Defense Lawyers Association on the grounds that it would have also required defense attorneys to open their files to discovery, […]

Bookmark and Share