So just how did we get to this point?
It was Charles Sebesta who prosecuted Anthony Graves. It was Mr. Sebesta who failed to disclose Brady material. It was Mr. Sebesta who put a witness on the stand whom he knew would perjure himself.
It was Ken Anderson who prosecuted Michael Morton and ignored testimony and evidence that didn't fit his theory of the case. It was John Bradley who fought for years to prevent evidence from undergoing the DNA testing that led to Mr. Morton's exoneration.
It was James Keeshan and his minions who orchestrated the framing of Clarence Brandley. His office destroyed exculpatory evidence in order to assure a conviction.
In Tulia it was the local district attorney who played hide the sausage with the defendants who were arrested based on the questionable testimony of a confidential informant who has been exposed as a liar and a fraud.
In each of those cases the misdeeds were committed by the state. The prosecutors who have an ethical obligation to see that justice is done took shortcuts and broke the law in order to get convictions. Yet, here we are today with the Texas Legislature considering a bill that would require the defense to turn over evidence and trial strategy in the name of transparency and leveling the playing field.
The attorneys for Mr. Graves did nothing wrong. The attorneys for Mr. Morton did nothing wrong. Mr. Brandley's attorneys did nothing wrong. The attorneys for the defendants in Tulia did nothing wrong. Their clients were victims of prosecutorial misconduct and unethical behavior.
And so the solution is to place the onus on defense attorneys to prevent such miscarriages of justice from happening again. The defense must now risk having evidence deemed inadmissible or defenses not being allowed due to alleged violations of a discovery order. Meanwhile there isn't a judge in the State of Texas who has the guts to toss the government's case because it violated an order.
If the goal of the bill is to prevent someone else from finding themselves in Mr. Morton's shoes, why isn't the onus placed on the state to produce offense reports, witness statements and Brady material? After all, it's the state that got caught with its pants down over and over again.
The reciprocal discovery bill in Texas is just the latest attempt by those in power to blame the victim for their misfortune. The state has all the power and all the resources it can muster. The state created the problem - and so the citizen accused must pay the price of fixing it.