False equation

In his latest shot at the defense bar, Grits for Breakfast seems to be making the argument that everyone should ignore the defense bar's opposition to reciprocal discovery because about 97% of criminal cases plead out.

What he leaves out is that all the exonerations we've seen over the years in Texas result from cases that went to trial. In other words, on cases in which the defendant either was claiming he was not guilty or that the sentence offered by the state was greater than what a jury would mete out.

The statistic he cited also doesn't give us a breakdown between counties with so-called open file and closed file policies. Nor does he fill us in on how many of those convictions resulted from the failure of the state to disclose Brady material.

Criminal cases plead out for any number of reasons. Some defendants plea because they can't get out of jail due to punitive bail conditions. Others plead because the state has offered to dismiss certain counts or enhancements. Some plead because they would rather take deferred adjudication than take a chance at trial. Others plead because the state has offered the minimum or because a felony has been reduced to a misdemeanor. Still others plead because the cost of a conviction at trial is more than they can bear.

Whatever the reason, the common thread in the cases in which defendants have been exonerated is the state's failure to act ethically and legally. The secondary theme is defense counsel who were ineffective either because they weren't competent to handle the case or because there wasn't enough money to conduct a proper defense.

The answer isn't to require a defense attorney to open up his file to the state. The answer is to force the state to produce evidence, both incriminating and exculpatory, to the defense prior to trial and to sanction the state for its failure to do so. Sen. Ellis' latest version of reciprocal discovery continues along the path of treating criminal cases like civil disputes in which both sides are equal.

Anyone who has ever been through the criminal (in)justice system knows that there is no equality between the sides in the criminal courthouse. The percentage of cases pled out is prima facie evidence of who has the upper hand.