Texas Senate Bill 91 would provide for formal discovery in criminal cases, both from the State to the defense and from the defense to the State.

Texas Defender Service, which litigates capital cases, has come out in favor of this excrescence. Their reasoning is that, since there are District Attorneys who require waivers of Brady and other rights before they show their cards to counsel for defendants whom they have accused, or who don’t show their cards at all, a statutory duty to provide discovery is required. In order to bring light to those benighted Bradleyian backwaters of due process, TDS is willing to compromise. The notion is appealing—had Michael Morton’s lawyers been provided with discovery, he might not have spent a quarter-century in prison—but the compromise goes much, much too far.

The six most populous counties in Texas—Harris, Dallas, Tarrant, Bexar, Travis, and El Paso—account for a little over half the felony charges filed in the state. All of these counties—and many others—have open-file policies. Defendants in all of those counties will lose a great deal with “reciprocal” discovery.

What will they—as well as defendants in the backwaters—lose? Here’s my lawyer, Troy McKinney’s take on it:

This proposed legislation would be a HUGE change in the way criminal cases are litigated in Texas. It is full of all kinds of traps, including contempt for a lawyer who does not comply. Who do we think is most often going to get held in contempt? Hint: it ain’t going to be prosecutors.

This legislation will also prevent defense lawyers from sharing discovery (“information and witness statements”) with each other in cases involving similar issues or witnesses, but will likely not so prevent prosecutors from doing so since they are all in the same office.

This legislation would not require the state to turn over anything obtained or discovered by a DA investigator.

This legislation requires notice by the defense of any statutory defense not later than 30 days before trial.

This legislation allows the state to obtain, post indictment, “non testimonial” evidence from a defendant with only a court order (and without stating any standard for that order). So much for the constitutional requirement for probable cause and a search warrant.

This legislation allows a court to disallow a defense, but has no sanction limiting the state’s ability to assert a claim and expressly prohibits dismissal for discovery violations.

This legislation does not expressly require the state to disclose evidence that may mitigate punishment.

This legislation limits exculpatory and impeachment evidence to that which is “material” to the defendant’s guilt or punishment. Thus, exculpatory and impeachment evidence that only relates to an extraneous offense or a witnesses credibility may not be covered.

This legislation requires names and addresses of experts, but only names of witnesses. It lets the state hide witnesses it wants to hide.

This legislation requires disclosure of information related to an “alibi” defense, even though there is no such defense under Texas law.

This legislation requires disclosure of the place where the D alleges to have been at the time of the alleged offense, even though there is no requirement under Texas law for the state to specify the date, time, or location of the alleged offense. In some cases, there will not be any question about the date and place of the offense. But, anyone who has handled child sexual assault cases knows that the true date, place and time not only need not be pled, but are often uncertain, and there is certainly no requirement for the state to disclose the actual date, place, and time they intend to rely on at trial. Guess those defendants now get deprived of an alibi “defense.”

If the offense is a 3g offense, the state gets to excise “any information related to the victim” of the alleged offense. I’d bet that a creative prosecutor would interpret this to include the version of the alleged victim as well as any other information “related” to the victim.

Only get two to three weeks between the last setting and a trial setting? Too bad since you have already missed some of the 30 days deadlines. The legislation only requires a court to hold a discovery conference not later than 10 days before trial.

If your disclosure is “untimely” the judge gets to tell the jury that your disclosure was untimely.

This legislation only requires the state to disclose “any plea agreement, grant of immunity, or other agreement for testimony issued by the attorney representing the state in connection with the case.” It does not require disclosure of any other benefit promised to or conferred upon any witness for the state. Since it only requires disclosure of an “agreement for testimony,” promised benefits that do not amount to a plea agreement or immunity are not covered. Finally, it is limited only to promises made by the prosecutor, not by anyone else.

This legislation is a mess. It will materially change and adversely affect the way we are required to defend our clients. We should all oppose it. It should not even be a hard call.

Bottom line: those who think that this will in some way, much less significantly, help us and our clients are, in my opinion, and being as nice as I can about it, seriously mistaken. This would be the most detrimental legislative action, as it relates to our defense of our clients, in the last 30+ years, if not the last century. It will give the state even more advantages than they already have and will result in the conviction of many more of our clients — innocent and guilty alike.

In my time practicing law, I’ve gone from being allowed to handwrite OR notes…to being allowed to type them (with a prosecutor clucking at me not to type them verbatim)…to receiving copies. 

Even Williamson and Collin Counties have shooed away the Roaches (and the Bradleys) and, I think, adopted open-file policies.

Why?

Why did Johnny Holmes and Chuck Rosenthal have an open-file policy? Why did Pat Lykos provide the defense with copies of offense reports? Why is Mike Anderson working to make discovery available to defense lawyers online? Do they do it out of the kindness of their hearts? Of course not. They do it because they know that it’s fair—part of their prosecutorial duty, to try to ensure that justice is done—and because they know that if they play hide-the-ball with their evidence the accused is less likely to plead guilty.

Even in offices with open-file policies there are outliers—prosecutors who conceal information, even exculpatory information, from the accused. SB91 would provide no more of a solution to this problem than Brady and its progeny have: a prosecutor who would violate Brady would also violate SB91.

There are still elected DAs whose feelings of inadequacy in the rest of their lives lead them to win at all costs in the courtroom. They still play hide-the-ball with people’s lives. The legislature can’t make them go to therapy; it can rewrite the rules to force them to play fair. It doesn’t have to gut the defense function to do so.