Brian P. Fox is a student at Notre Dame Law School, not an actual lawyer. He has studied criminal law and criminal procedure but he has not practical experience dealing with them on a day-to-day basis. He spends his time studying and answering questions posed in the Socratic method from his law profs. He doesn't spend his mornings in the courthouse or his afternoons at the county jail with his clients.
Yet Mr. Fox is convinced that open-file policies in criminal cases are bad. In Mr.Fox's world, open-file policies are bad for defendants and even worse for criminal defense attorneys. You see, Mr. Fox knows better than you or me how to do our jobs most effectively. Oh the arrogance of youth.
The first thing Mr. Fox does is tell us that open-file policies won't prevent prosecutorial misconduct. He makes reference to the Duke lacrosse case and points out that even if prosecutors were required to make their files available to the defense, those prosecutors who were bound and determined to hide something would continue to do so.
And that's fair enough. We have an open-file policy in Harris County (as do many counties throughout Texas) and it certainly doesn't stop the Harris County District Attorney's Office from concealing potential Brady material.
But then Mr. Fox goes off the deep end. He tells us he's concerned with the workloads and low pay of public defenders. He tells us that if the state were required to make their files available to the defense that these poor, overworked souls would be swamped with mountains of evidence to sift through when putting their cases together. Really?
The problem for public defenders isn't having too much material to sift through. The problem is having too many case files thrown on their desks because the state or the county doesn't want to pay more money to defend those folks accused of committing crimes. Remember, indigent criminal defendants aren't a key demographic in anyone's election strategy.
At the same time Mr. Fox is telling us that it's too much work for public defenders to have to deal with open-file policies, he's also telling us that such policies would reduce the number of cases that are resolved with plea bargains and that it would burden the courts and prosecutors with more trials. His fear is that someone who did something bad might escape punishment because no one has time to deal with him.
Should Mr. Fox ever deign to join us in the trenches he will quickly find that we don't concern ourselves with the cost to the state of going to trial. How much extra work a prosecutor has to do to get ready for trial doesn't concern us, either. Our only goal is to provide as vigorous a defense for our clients as we can - nothing else matters.
If open-file policies would lead to more trials and fewer plea bargains, then maybe that's a good thing. Criminal defendants have a constitutional right to be tried by a jury of their peers. If the state can't handle the burden of additional trials, then perhaps someone should take a long, hard look at how charging decisions get made in the prosecutor's office.
Perhaps the strangest of Mr. Fox's arguments is that the rules for how we conduct criminal prosecutions are tilted heavily in favor of the citizen accused. Yeah, just let that assertion soak in for a moment.
He points to the Fourth Amendment's protection against unreasonable search and seizure, the Fifth Amendment's protection against self-incrimination and the burden of proof carried by the state is making his assertion. If Mr. Fox had any experience defending criminal cases he would know what a joke each of those so-called protections is in real life. If he had any experience he would know that the Fourth Amendment is but a shadow of itself these days. He would understand that judges have a hard time excluding evidence they know will prove the defendant guilty. He would understand how little jurors really understand the presumption of innocence and what it means to prove someone guilty beyond all reasonable doubt.
But, hey, being a contrarian is all the rage these days - particularly when one hasn't got a grasp on the reality of the topic he's writing about.
Showing posts with label discovery. Show all posts
Showing posts with label discovery. Show all posts
Tuesday, July 15, 2014
Friday, July 11, 2014
Unintended consequences of the Michael Morton Act
All across the State of Texas, local district attorneys are teaming up with judges to find creative ways to get prosecutors out from under the Michael Morton Act. For those of y'all not keeping up, the Michael Morton Act mandates items that the state must hand over to the defense in a criminal prosecution. The law was named after Michael Morton, the Williamson County man who spent 25 years in prison after being wrongly convicted of killing his wife.
The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.
Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.
I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.
Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.
Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?
Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?
If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.
The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.
Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.
I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.
Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.
Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?
Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?
If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.
Friday, April 12, 2013
State Senate passes Michael Morton Act (corrected version)
Yesterday the Texas Senate unanimously passed the Michael Morton Act which will expand the scope of discovery for defendants in criminal cases. In the face of staunch opposition from the defense bar, any provisions requiring the defense to hand over documents were removed from the bill.
Proponents even withstood a last minute attempt by Sen. Joan Huffman (R-Houston) to insert a provision in the bill that would, in effect, place a gag order on defense attorneys regarding the release of any information obtained via discovery. That last statement wasn't true - it was based on an article that ran in Wednesday's Texas Tribune (a story that is no longer on their website) that claimed a last minute compromise had been worked out that would remove the amendment from the bill. The article, however, was light on details. As Grits pointed out in his comment this morning, and as I noted a few paragraphs down, provisions (e) and (f) impose a gag order on defense counsel regarding the information obtained through discovery.
I apologize for the misinformation and confess that I should have known better given that the bill passed the Republican-controlled Senate without a single dissenting vote.
Grits also notes that the defense bar was absent when discussions over Sen. Huffman's amendment were held. That's a topic I will address in another post. My thanks to Scott for pointing out the errors in the original posting.
The bill even contains a statutory Brady requirement that is actually more defense-friendly than Brady itself.
According to the language of the new bill "the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."
So, while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment.
Of course we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement.
While Sen. Huffman's proposed amendment was removed in order to ensure passage of the bill there is a provision which would seem to bars defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense. This would appear to prevent the defense from providing information to the press regarding any issues of misconduct - if that information was obtained through the discovery process.
One interesting provision would require a statement from both the state and the defendant listing the documents and other items turned over by the state prior to a defendant entering a guilty (or no contest) plea. That provision may actually reduce the practice of indigent defendants pleading out on their first settings because their attorneys would be opening themselves up to potential claims for ineffective assistance of counsel if nothing more than an offense report had been turned over. Then again, the courts may just put some boilerplate language in a plea form indicating that the defendant had reviewed the items required to be disclosed under the bill.
On the downside, there is no automatic trigger in the bill. None of the disclosure obligations of the state are triggered until the defense files a request asking for the evidence referred to in the bill.Presumably the request would only need to refer to the material described in Article 39.14(a) of the Texas Code of Criminal Procedure. If no request is filed, the state is not required to disclose the information until trial - by which time it is probably too late.
The bill would go into effect on January 1, 2014 and its provisions will only apply to cases filed on or after that date.
I apologize for the misinformation and confess that I should have known better given that the bill passed the Republican-controlled Senate without a single dissenting vote.
Grits also notes that the defense bar was absent when discussions over Sen. Huffman's amendment were held. That's a topic I will address in another post. My thanks to Scott for pointing out the errors in the original posting.
The bill even contains a statutory Brady requirement that is actually more defense-friendly than Brady itself.
According to the language of the new bill "the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."
So, while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment.
Of course we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement.
One interesting provision would require a statement from both the state and the defendant listing the documents and other items turned over by the state prior to a defendant entering a guilty (or no contest) plea. That provision may actually reduce the practice of indigent defendants pleading out on their first settings because their attorneys would be opening themselves up to potential claims for ineffective assistance of counsel if nothing more than an offense report had been turned over. Then again, the courts may just put some boilerplate language in a plea form indicating that the defendant had reviewed the items required to be disclosed under the bill.
On the downside, there is no automatic trigger in the bill. None of the disclosure obligations of the state are triggered until the defense files a request asking for the evidence referred to in the bill.Presumably the request would only need to refer to the material described in Article 39.14(a) of the Texas Code of Criminal Procedure. If no request is filed, the state is not required to disclose the information until trial - by which time it is probably too late.
The bill would go into effect on January 1, 2014 and its provisions will only apply to cases filed on or after that date.
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:
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.
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.
Monday, March 25, 2013
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.
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.
Monday, March 18, 2013
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.
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.
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.
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.
Monday, March 11, 2013
Revamped reciprocal discovery bill is still bad for the defense
State Senator Rodney Ellis' (D-Houston) reciprocal discovery bill, otherwise known as the blame the defense for wrongful convictions, act, has been modified as a result of the opposition of the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association.
As originally proposed, in exchange for offense reports, the defense would have to disclose (1) all written and recorded witness statements, (2) all convictions that would be used to impeach state witnesses, (3) all physical and documentary evidence the defense intended to introduce at trial, (4) a witness list, (5) a list of experts, (6) any reports prepared by an expert retained by the defense and (7) any affirmative defenses the defense intended to plead at trial.
The most objectionable items on that list were witness statements, witness lists, physical and/or documentary evidence and affirmative defenses (although I don't have as big a problem with the last item as some colleagues of mine do). Senator Ellis' bill seems somehow to assert that Michael Morton, Anthony Graves and the other exonerees wound up on the bad end of a verdict because their attorneys didn't disclose these items to the state.
Sen. Ellis seems to forget that it is the state that filed the charges and it is the state who is seeking to infringe upon the liberty of its citizens by pursuing a criminal prosecution. But then, facts and logic have never been the stock in trade of our state legislators.
Now, having heard the derisive shouts from the defense bar, Sen. Ellis has scaled back his list of items the defense must turn over to the state. SB 1611 is the newest (and last) version of reciprocal discovery for this legislative session.
While the core of SB 1611 is identical to SB91, there are a few subtle changes. The new bill would still require the defense to turn over its witness list to the state - but not until just prior to jury selection. To make it all "fair," the new bill doesn't require the state to turn over its witness list until just prior to jury selection, either. Of course the way around that is to check the court's file periodically for subpoena requests and to keep an eye on the district clerk's website for any subpoenas issued in the case.
The new bill also does away with the requirement that the defense provide any criminal convictions the defense intends to use to impeach a witness for the state at trial. The new bill does, however, still require the defense to produce all witness statements and notice of affirmative defenses (upon request by the state).
Yes, the new bill is an improvement over the old one - but that still doesn't make it a good idea.
If Sen. Ellis really wants to prevent wrongful convictions in the future, the items his bill requires the state to produce to the defense is a very good start. The only things the defense should be required to give up are the names of expert witnesses and copies of any reports prepared by defense-retained experts upon request from the state as well as any affirmative defenses under Sections 8 or 9 of the Texas Penal Code upon request from the state.
The bill should also put some teeth in the requirement that the state produce any Brady material in its possession, subject to its control or within its knowledge. The penalty for a prosecutor who plays fast and loose with the rules shouldn't be a slap on the wrist after the fact.
Michael Morton didn't go to prison for 25 years for a crime he didn't commit because his attorneys didn't hand the state copies of witness statements - he went to prison for 25 years because the Williamson County District Attorney's Office violated the rules and played fast and loose with ethics requirements.
Anthony Graves didn't set in prison for 18 years because his attorney didn't hand over the evidence he intended to introduce at trial - he went to prison because the prosecutor knowingly failed to hand over exculpatory evidence to the defense that might just have led to a different verdict in the first place.
While Sen. Ellis' bill is an improvement - it's still unacceptable.
H/T Grits for Breakfast
As originally proposed, in exchange for offense reports, the defense would have to disclose (1) all written and recorded witness statements, (2) all convictions that would be used to impeach state witnesses, (3) all physical and documentary evidence the defense intended to introduce at trial, (4) a witness list, (5) a list of experts, (6) any reports prepared by an expert retained by the defense and (7) any affirmative defenses the defense intended to plead at trial.
The most objectionable items on that list were witness statements, witness lists, physical and/or documentary evidence and affirmative defenses (although I don't have as big a problem with the last item as some colleagues of mine do). Senator Ellis' bill seems somehow to assert that Michael Morton, Anthony Graves and the other exonerees wound up on the bad end of a verdict because their attorneys didn't disclose these items to the state.
Sen. Ellis seems to forget that it is the state that filed the charges and it is the state who is seeking to infringe upon the liberty of its citizens by pursuing a criminal prosecution. But then, facts and logic have never been the stock in trade of our state legislators.
Now, having heard the derisive shouts from the defense bar, Sen. Ellis has scaled back his list of items the defense must turn over to the state. SB 1611 is the newest (and last) version of reciprocal discovery for this legislative session.
While the core of SB 1611 is identical to SB91, there are a few subtle changes. The new bill would still require the defense to turn over its witness list to the state - but not until just prior to jury selection. To make it all "fair," the new bill doesn't require the state to turn over its witness list until just prior to jury selection, either. Of course the way around that is to check the court's file periodically for subpoena requests and to keep an eye on the district clerk's website for any subpoenas issued in the case.
The new bill also does away with the requirement that the defense provide any criminal convictions the defense intends to use to impeach a witness for the state at trial. The new bill does, however, still require the defense to produce all witness statements and notice of affirmative defenses (upon request by the state).
Yes, the new bill is an improvement over the old one - but that still doesn't make it a good idea.
If Sen. Ellis really wants to prevent wrongful convictions in the future, the items his bill requires the state to produce to the defense is a very good start. The only things the defense should be required to give up are the names of expert witnesses and copies of any reports prepared by defense-retained experts upon request from the state as well as any affirmative defenses under Sections 8 or 9 of the Texas Penal Code upon request from the state.
The bill should also put some teeth in the requirement that the state produce any Brady material in its possession, subject to its control or within its knowledge. The penalty for a prosecutor who plays fast and loose with the rules shouldn't be a slap on the wrist after the fact.
Michael Morton didn't go to prison for 25 years for a crime he didn't commit because his attorneys didn't hand the state copies of witness statements - he went to prison for 25 years because the Williamson County District Attorney's Office violated the rules and played fast and loose with ethics requirements.
Anthony Graves didn't set in prison for 18 years because his attorney didn't hand over the evidence he intended to introduce at trial - he went to prison because the prosecutor knowingly failed to hand over exculpatory evidence to the defense that might just have led to a different verdict in the first place.
While Sen. Ellis' bill is an improvement - it's still unacceptable.
H/T Grits for Breakfast
Thursday, February 28, 2013
Blaming the victim, Texas-style
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.
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.
Monday, February 25, 2013
Reciprocal discovery is a wolf in sheep's clothing
There's a battle a-brewing in Texas. A bill, sponsored by State Senator Rodney Ellis (D-Houston), is making its way through the legislative process that would greatly alter the means by which discovery in criminal cases is conducted.
Texas already has reciprocal discovery under the civil rules. Discovery in civil cases is nothing more than an over-the-top game of "you show me yours and I'll show you mine." The parties in a civil dispute share witness lists, expert lists, exhibits and theories of the case. The point is to make the facts and issues so crystal clear that one side of the other presses for an out of court settlement.
On the criminal side, however, discovery is conducted differently from county-to-county. Most district attorneys have what's known as an "open file" policy. That means that defense attorneys are able to view the state's evidence throughout the course of the case. Offense reports, witness statements, photographs, videos. You name it - so long as it's not considered work product, the defense gets to see it.
Other counties hold on to a "closed file" policy. In those jurisdictions you only get what the DA is willing to let you see. If you want more, you'll have to see the judge.
The missing piece in a closed file county, then, is the lack of an offense report. Now whether you get a copy of the offense report or you just get to take notes, attorneys in open file jurisdictions have an advantage as they know the names of all the officers involved and they can see where the state's case is weakest. And, since Brady material is somewhat in the eye of the beholder, that lack of an offense report puts the defense attorney behind the 8-ball.
And this is the why of Sen. Ellis' reciprocal discovery bill. Defense attorneys in closed file counties want to be able to see the offense report. Organizations such as The Innocence Project want to be able to see and compare offense reports.
But to compel the defense to provide information to the state about its case serves only to shift the burden of proof. There is no reason for the defense to share any information prior to trial. As a defense attorney, do you really want the state to know the names of all of your potential witnesses? Do you really want the prosecutor to have free reign to intimidate your witnesses?
The state has the burden of proof. The state gladly assumed that position when a prosecutor filed either an information or an indictment in your client's case. As the defendant is presumed innocent unless proven guilty, there is no need for the defendant to tell the state anything. There is no need for the defendant to give the state any information at all.
Over on the civil side the parties are considered to be starting their case from the same point. At the end of the trial, the judge will ask the jury to determine, by a preponderance of the evidence, who proved their case. It's all a contest about who can move the ball past the 50-yard line. But that's not what criminal law is all about. Our clients get a head start at trial. It's not a level playing field - and it's not supposed to be. Our Founding Fathers were less worried about a false arrest than they were a fall conviction.
The real battle should be over open-file versus closed-file jurisdictions. Those few holdouts from producing offense reports should be required to turn then over to the defense. Reciprocal discovery, as propounded by Sen. Ellis, would force the defense to share its most intimate secrets with the state. And so, while the idea seems attractive to a good many folks (particularly non-lawyers who haven't the slightest idea what really goes on in a courtroom), it will do far more harm to criminal defendants than good.
Tuesday, January 1, 2013
Another year, another bad idea
Once again State Senator Rodney Ellis (D-Houston) has introduced his bill calling for reciprocal discovery in criminal cases - and, once again, it's a bad idea.
Over on the civil side plaintiffs and defendants are obligated to share their evidence with each other so that by the time a case makes it to trial (and very few make it that far), both sides know exactly what's going to be said and presented before the court. The ostensible purpose of the civil discovery rules is to encourage the parties to come to a negotiated settlement before trial.
Since both sides know what evidence the other side has in its arsenal, both sides can make a fairly accurate assessment of where their case stands and where their opponent's case stands. Having near perfect information should allow the parties to craft an agreement by which both sides get some of what they want without running the risk of a jury gutting one of them.
But over at the civil courthouse they're just arguing about money. They're arguing about what amount of money will "make a plaintiff whole" after suffering an injury due to negligence, breach of contract or fraud. At the end of the day someone writes a check (or not) and everyone goes home.
That, of course, isn't how it works at the criminal courthouse. For one, the parties don't start off on equal footing. A criminal defendant is presumed innocent unless the state can prove each and every element of the alleged offense beyond all reasonable doubt. That's a good deal different that the parties starting off even with one side only needing to present a quantum of evidence more than the other side in order to win.
While the legislature and the courts have shown a clear preference for negotiated settlements in civil cases, a criminal defendant has a right to be tried by a jury of his peers. While most judges would be more than happy for every case to be pled out, that would not be in the interest of every defendant.
A criminal defendant also has a right to keep his mouth shut. He can't be forced to testify and he needn't present any evidence at all. In the civil courthouse the defendant has to talk. He has to present evidence. While a criminal defendant can be found not guilty without ever putting on any evidence, it's impossible to win a civil case without putting on a case.
Requiring a criminal defendant to turn over evidence to the state in exchange for a peek at what the prosecutor has, would gut the Fifth Amendment protection afforded criminal defendants. Forcing a defendant to turn over documents to the state would, in no uncertain terms, be the same as requiring a defendant to testify and/or put on a case at trial. In one fell swoop we'd be dismantling one of the more important rights we possess.
In the counties in which I've practiced over the years the district attorneys have various versions of an "open file" policy that allows defense attorneys to review offense reports, witness statements, lab reports and the like. I know there are counties out there in which defense attorneys don't see some of these documents until trial - but just because some defendants in the state have to jump through extra hoops in order to prepare their cases doesn't mean we need to gut the constitutional protections for the rest.
The answer is not to require reciprocal discovery across the state. The answer is to spell out just what documents and evidence defendants are entitled to review prior to trial. At a minimum, every criminal defendant should have access to the offense report, witness statements, lab reports and any photographs, video and audio recordings.
Over on the civil side plaintiffs and defendants are obligated to share their evidence with each other so that by the time a case makes it to trial (and very few make it that far), both sides know exactly what's going to be said and presented before the court. The ostensible purpose of the civil discovery rules is to encourage the parties to come to a negotiated settlement before trial.
Since both sides know what evidence the other side has in its arsenal, both sides can make a fairly accurate assessment of where their case stands and where their opponent's case stands. Having near perfect information should allow the parties to craft an agreement by which both sides get some of what they want without running the risk of a jury gutting one of them.
But over at the civil courthouse they're just arguing about money. They're arguing about what amount of money will "make a plaintiff whole" after suffering an injury due to negligence, breach of contract or fraud. At the end of the day someone writes a check (or not) and everyone goes home.
That, of course, isn't how it works at the criminal courthouse. For one, the parties don't start off on equal footing. A criminal defendant is presumed innocent unless the state can prove each and every element of the alleged offense beyond all reasonable doubt. That's a good deal different that the parties starting off even with one side only needing to present a quantum of evidence more than the other side in order to win.
While the legislature and the courts have shown a clear preference for negotiated settlements in civil cases, a criminal defendant has a right to be tried by a jury of his peers. While most judges would be more than happy for every case to be pled out, that would not be in the interest of every defendant.
A criminal defendant also has a right to keep his mouth shut. He can't be forced to testify and he needn't present any evidence at all. In the civil courthouse the defendant has to talk. He has to present evidence. While a criminal defendant can be found not guilty without ever putting on any evidence, it's impossible to win a civil case without putting on a case.
Requiring a criminal defendant to turn over evidence to the state in exchange for a peek at what the prosecutor has, would gut the Fifth Amendment protection afforded criminal defendants. Forcing a defendant to turn over documents to the state would, in no uncertain terms, be the same as requiring a defendant to testify and/or put on a case at trial. In one fell swoop we'd be dismantling one of the more important rights we possess.
In the counties in which I've practiced over the years the district attorneys have various versions of an "open file" policy that allows defense attorneys to review offense reports, witness statements, lab reports and the like. I know there are counties out there in which defense attorneys don't see some of these documents until trial - but just because some defendants in the state have to jump through extra hoops in order to prepare their cases doesn't mean we need to gut the constitutional protections for the rest.
The answer is not to require reciprocal discovery across the state. The answer is to spell out just what documents and evidence defendants are entitled to review prior to trial. At a minimum, every criminal defendant should have access to the offense report, witness statements, lab reports and any photographs, video and audio recordings.
Friday, November 11, 2011
Pardon me, that order must be mistaken
The language seems deceptively clear.
Oh, but that would be wrong.
For, you see, that provision apparently is meant to be read:
If the court isn't going to enforce its own discovery order, who is?
Standard discovery order - 56th
On this day the above numbered and entitled cause was called for pretrial hearing. The defendant, defendant's attorney and the Assistant District Attorney representing the State appeared. The Court hereby orders that the State produce and permit the inspection of, or the copying and/or photographing of the following items:
13. All written statements made by any party or witness to the alleged offense which might in any manner be material to either the guilt or innocence of the Defendant or the punishment, subsequent to the witness testifying.That would appear to mean that the defense is entitled to any and all written statements from a witness once that witness has given testimony under direct examination. Furthermore, it would appear that the order refers to anyone called to the stand by the prosecution.
Oh, but that would be wrong.
For, you see, that provision apparently is meant to be read:
All written statements made by any party or witness to the alleged offense which might in any manner be material to either the guilt of innocence of the Defendant or the punishment, subsequent to the witness testifying, if, and only if, the Defendant makes a specific request for the written statements of a specific witness.I mean, we can't possibly expect the prosecutor to hand over all written statements without the defense attorney having to jump through a plethora of procedural hoops, can we? And God knows we can't have a judge that gives the impression that he is serious about a defendant being entitled to due process. How on earth is that going to play at election time?
If the court isn't going to enforce its own discovery order, who is?
Standard discovery order - 56th
Thursday, May 19, 2011
Reciprocal discovery would only harm defendants
Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?
No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.
Sounds pretty damn good, doesn't it?
That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.
Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.
The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.
No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.
Sounds pretty damn good, doesn't it?
That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.
Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.
The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.
Thursday, March 17, 2011
Still a bad idea -- even with a fancy name
Reciprocal discovery. It sounds so innocuous. Since the State is required to make certain documents in a criminal prosecution available to the defense, why shouldn't the defense be required to do the same in return?
Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:
In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.
The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.
Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.
Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.
That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.
We should never do anything to lessen that burden. That could be you on the other side of the v. one day.
Over at Grits for Breakfast, Scott Henson wrote about a proposed bill that would require reciprocal discovery in criminal cases:
Chairman Pete Gallego has a bill up requiring mutual pretrial discovery for both the prosecution and the defense, with related bills up by Reps Guillen and Dutton. If you get four lawyers in the room you're likely to get five opinions on the subject, but I'm not a lawyer and as I've listened to the debates over the years, I've warmed to the idea. There has to be some way to ensure exculpatory evidence is disclosed before trial. Just requiring open files of prosecutors might be my personal preference (many counties operate that way just fine), but having witnessed this fight go on for years, I know it will take at least minimalist defense disclosure to seal the deal politically at the Lege. Mutual discovery isn't a bad compromise given the severity of the problem.Now Mr. Henson doesn't practice criminal defense (though he is well acquainted with some that do) so I wouldn't expect him to understand the consequences of such a requirement.
In a criminal prosecution, the attorney representing the state is attempting to prove a person committed a criminal act. That person is presumed innocent unless the state's attorney can prove otherwise. The person accused has no burden to prove anything. The state's attorney must present evidence for the finder of fact to consider in determining whether or not the state's attorney has met his burden of proof.
The "system" is set up to make it as difficult as possible to convict someone (though you would find that notion hard to believe in most courtrooms). The only person in the courtroom with a right to a fair trial is the person accused. The government has no due process rights in a criminal trial - nor should it.
Requiring the person accused to turn over evidence to the state's attorney would serve to lower the government's burden of proof. The state's attorney would know the identity of all potential defense witnesses. The state's attorney would have alibi evidence. The state's attorney would know the trial strategy of the person accused.
Many times the defense strategy is to point out holes in the state's theory of the case that could lead a jury to find reasonable doubt that the person accused committed the offense alleged. In those cases the person accused rarely puts on any evidence - the entire case is centered on the state's burden of proof. If the person accused did not produce any documents during pretrial discovery, the state's attorney would have a pretty good idea of what defense counsel's trial strategy would be.
That might seem "fair" - but we're not talking about a process in which both parties are on an equal footing. There is a reason that criminal cases in Texas are styled The State of Texas v. the accused. If we were just arguing over insurance money then the civil discovery rules are appropriate. But when we talking about the very freedom and liberty of an individual - the burden on the party seeking to restrain that freedom or liberty should be as heavy as possible.
We should never do anything to lessen that burden. That could be you on the other side of the v. one day.
Thursday, May 14, 2009
Civil rules of discovery can help you in a criminal case
Texas Rule of Civil Procedure 176. "Subpoenas"
176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:
a. state the style of the suit and its cause number;
b. state the court in which the suit is pending;
c. state the date on which the subpoena is issued;
d. identify the person to whom the subpoena is directed;
e. state the time, place and nature of the action required by the person to whom the subpoena is directed;
f. identify the part at whose instance the subpoena is issued, and the party's attorney of record, if any;
g. state the text of Rule 176.8(a); and
h. be signed by the person issuing the subpoena.
176.3(b) A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.
Texas Code of Criminal Procedure, Article 39.14. "Discovery"
39.14(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies...
* * * * *
Tired of hearing the prosecutor tell you he can't produce the documents you requested because they aren't in his possession or under his control or custody? Then take advantage of the rules of civil procedure.
The Texas Rules of Civil Procedure provide for abundant discovery as the civil courts prefer not to have to deal with "trial by ambush." The rules provide tools for both plaintiffs and defendants to see all of the documents and evidence that will be presented at trial with the hope that this discovery will lead the parties to settle their disputes without the need for a lengthy trial.
These rules also offer the opportunity for criminal defense lawyers to "go in the back door" and obtain necessary evidence to defend their clients. Prosecutor tells you he doesn't have the sheriff department's inventory guidelines? Issue a subpoena to the sheriff's department for those procedures. Prosecutor won't produce a video tape or audio tape because he says he doesn't have it? Subpoena it from the police or sheriff's department.
In Texas you don't even have to go through the court to issue the subpoena. You can draft on your own and have your investigator serve it to the proper custodian of records. Sure, the prosecutor may get perturbed because of the route you're taking to get the records you need, but there's nothing he can do about it because the District Attorney is not a party to the subpoena. If the agency on which you served it wishes to fight it, they may -- but they must show the court why the requested documents aren't relevant to the case.
Down in Galveston County, the district attorney's office seems to want to have it both ways. They will tell you they don't have possession or custody of the documents you request when it suits them and, if you try to subpoena them, they will tell you that you can't have them. Unfortunately for the district attorney, it doesn't work that way. You either have possession, custody or control of the documents or you don't.
You can also take advantage of your state's Open Records Act. Prosecutor tells you he doesn't have the arresting officer's civil service file? Issue an open records request to the law enforcement agency. Prosecutor says he can't give you any documents related to the warranty on the state's breath machine? Issue an open records request to the agency in charge of maintaining the machine.
When gathering evidence in a criminal case, be creative in your approach and don't forget that the rules of civil procedure may give you an additional tool in putting your case together.
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