Leaving us all just a little bit stupider

On Friday Lisa Falkenberg penned a column in the Houston Chronicle (sorry, no link because the Chronicle put the article behind a pay wall since they haven't yet figured out a way to make money online) that demonstrated her ignorance regarding criminal law in Texas. Her purpose was to drum up support for the latest incarnation of Sen. Rodney Ellis' (D-Houston) reciprocal discovery bill. The result was a piece that broke Scott Greenfield's first rule of blogging - don't leave anyone stupider for having read your work.

She begins by setting up the straw man of discovery in civil cases (in which both sides share damn near everything in an attempt to resolve the case short of trial) and then points out that criminal defendants in Texas don't have a legal right to view an offense report prior to trial.

"Every good prosecutor or defense lawyer knows this is wrong. They know Texas is the only state in the nation without discovery in criminal cases. They know it has led to wrongful convictions such as that of Michael Morton, the grocery store manager who returned from work one day to find his wife brutally murdered and himself charged with the crime."

Ms. Falkenberg, might I suggest you take a look at Article 39.14 of the Texas Code of Criminal Procedure. That's our discovery statute for criminal cases. The code lays out just what the defense is entitled to. All the defendant has to do is file a discovery motion, approach the judge and request a hearing. If you can explain why you need it and why it's relevant the judge will order the state to turn it over.

The defense, contrary to Ms. Falkenberg's assertion, already has the right to subpoena witnesses. Under Chapter 24 of the Texas Code of Criminal Procedure, a defendant can subpoena anyone to appear before the court or to produce documents.

"Last weekend, the Texas Criminal Defense Lawyers Association passed a resolution against the bill, saying it 'opposes any government intrusion' into defense files. 

The resolution accuses one of the bill's supporters, the Texas Defender Service, of taking a position 'adverse to the interests of the members' of the association. 

But what about the interests of defendants and of justice?"

Yes, Ms. Falkenberg, the defense bar is overwhelming against the bill. We're not the ones to blame for innocent folks being locked up for decades. That responsibility rests squarely on the shoulders of the prosecutors who acted unethically and without regard for the due process rights of the accused. We are the only people standing between our clients and the deprivation of their rights - there is no reason we should have to open our files to anyone.

Besides, why is the blame for the fate of the bill placed on the defense bar? Not once does Ms. Falkenberg quote a prosecutor or the spokespeople for the Texas District and County Attorneys Association as to why they oppose the bill, too. Ms. Falkenberg can't be so naive to believe that if prosecutors in this state wanted the bill it would pass regardless of what the defense bar said or did.

If the goal is to make sure that we don't incarcerate any more innocent people because prosecutors were playing fast and loose with the rules and the Constitution, then all we need to do is amend Article 39.14 to include offense reports, witness statements and witness lists along with mechanisms for holding prosecutors accountable for their actions.

Ms. Falkenberg's piece of blather is but another pathetic attempt to blame the victim for being wrongly convicted and incarcerated.  I feel dumber for having read it.