Monday, April 8, 2013

Making a bad bill even worse

Never one to let a good opportunity to put the screws to the defense, State Sen. Joan Huffman (R-Houston) has proposed an amendment to State Sen. Rodney Ellis' largely unnecessary reciprocal discovery bill. And, in the spirit of George Orwell, the bill has been named the Michael Morton Act.

For those of y'all scoring at home, you already know that once you put a person's name on a bill nothing good will come of it. And that is now doubly the case thanks to Sen. Huffman.

The amendment would allow a judge to impose a protective order on information turned over to the defense by the state that would prevent defense counsel from disclosing any of the items covered under the order to any third party, including other attorneys.

Courtesy of Grits for Breakfast, here is Sen. Huffman's amendment:
On a showing of good cause specific to the case, the court may enter an appropriate protective order that a specified disclosure be denied, restricted, or deferred or that the attorney representing the defendant is prohibited from distributing to a third party offense reports or witness statements received from the state. For purposes of this subsection, "good cause" includes the probable loss, destruction, or fabrication of evidence, the probable compromise of an investigation by law enforcement, or evidence of intimidation, a threat of harm, or danger to the safety of the victim or witness. In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of the document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but, notwithstanding Subsection (a), is not required to allow electronic duplication of the document, item, or information.
Now let's stop and think about this for a second. Should this bill pass it means that a judge could prevent a defense attorney from disclosing information about procedural violations in a crime lab, intimidation by law enforcement, a lack of honesty from law enforcement, exculpatory evidence and prosecutorial misconduct, just to name a few.

Just as Mr. Morton's conviction had nothing to do with his attorneys disclosing any information to the state, this sordid episode in Williamson County had nothing to do with his attorneys disclosing any information about the investigation into the murder. In fact, under this bill, his attorneys could have faced sanctions for disclosing information to other attorneys.

As I have stated on multiple occasions, wrongful convictions in this state don't happen because the defense didn't turn something over to the state - wrongful convictions happen because the state hides, fails to disclose or destroys evidence that might be exculpatory. Wrongful convictions happen because judges, the supposed gatekeepers of the criminal (in)justice system have no qualms about allowing in junk science in criminal trials if it benefits the state.

If we really want to put an end to wrongful convictions then we need to put some teeth in Brady. Prosecutors found to have violated Brady need to be sanctioned in some manner that will not only get their attention but will also get the attention of other prosecutors around the state. We as defense attorneys need to do a better job fighting against the proliferation of junk science in the courtroom. We need to challenge the purveyors of pseudo-science at every opportunity. Judges need to apply the same standards to scientific and expert testimony in criminal cases as they do in civil cases. I'm sure we can agree that a person's freedom and liberty is more important to us than an insurance company's bank account.

Sen. Huffman's amendment makes a bad bill even worse and gives us another reason to work to defeat. it. The only silver lining is that it exposes this entire scheme of reciprocal discovery for what it is - a scam.

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