where it belongs. Not sure what I’m talking about? Identical bills filed in the Texas House by Rep. Joe Moody (D-El Paso) (HB1426) and in the Texas Senate by Sen. Rodney Ellis (D-Houston) (SB91) would require that prosecutors and defense attorneys share their files. The goal, apparently, is to reduce the number of innocent people that are convicted. I’m not sure how giving the state even more power helps that goal but the sponsors of the bill have gotten buy-in from the Texas Defender Service. From the Texas Tribune’s Rep. Joe Moody Files Open Discovery Bill by Brandi Grissom:
Defense lawyers in the past have had concerns that reciprocal discovery could require them to violate their clients’ right to avoid implicating themselves. But Rebecca Bernhardt, spokeswoman for the Texas Defender Service, which represents death row inmates, said Moody’s HB 1426 and Sen. Rodney Ellis’s SB 91, which is identical, are important steps forward to ensure those accused of crimes can defend themselves. Many other states, she said, require reciprocal discovery.
“The more sharing, the more broad, automatic disclosure that happens in advance enough of the trial for the defense to be able to prepare their case, the more fair criminal trials are going to be,” Bernhardt said.
That’s crazy. Just because other states require it doesn’t mean that Texas should. As Robb Fickman says in his post WHY EVERY TEXAN WHO LOVES LIBERTY MUST FIGHT THE ABOMINATION CALLED “RECIPROCAL DISCOVERY”, the state has enough power already:
Reciprocal discovery is basically the notion of two equally situated parties in a law suit trading information. It makes sense where people are suing each other for money. It does not make sense in criminal law. In criminal law there are not two equally situated parties. Nope. In criminal law there is the Almighty State versus Joe Citizen. There is no equality in power. Notwithstanding the fact the State has every possible edge, every two years some genius in Austin will try to give the State just a little more help. The State does not need the help. The citizens need the help. The citizens need to be protected from the overreaching all powerful state. HB. 1426 is just one more example of some politicos try to out-bootlick each other in the race to garner support of the law and order fanatics. Neither these politicos or their fanatic pals have any regard for Liberty or the rights of the Good Citizens of Texas.
HB 1426 is a bad bill and Reciprocal Discovery in the Texas “criminal” justice system needs to be killed once and for all.
In a guest post on Mr. Fickman’s blog, Guest Blog: Outstanding Criminal Defense Lawyer Earl Musick’s Compelling Case For Opposing Reciprocal Discovery , attorney Earl Musick cuts to the chase:
I am adamantly opposed to any bill that requires the defense to give their witness list to the STATE. The STATE is extremely powerful. As a prosecutor in Harris County, I never lost a motion and I won every hearing where I disagreed with the defense motions filed. Why? Not because I was a good lawyer, but because I represented the STATE.
And that is one of the points that should be made in opposing this bill – the State already has an enormous advantage.
Attorney Troy McKinney, quoted on Mark Bennett’s Defending People blog in a post titled simply Texas SB 91—The Discovery Bill, says that the bill will result in MORE innocent people being convicted, not fewer:
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.
But the best reason to oppose this bill is even more fundamental and basic. Defense attorney Paul Kennedy had this to say in a comment to his post Reciprocal discovery would only harm defendants, written in 2011 for the last attempt to pass this bill:
My main problem with reciprocal discovery is that it requires the defense to produce when it is the state’s burden to prove its case beyond all reasonable doubt.
Why should I be required to turn over anything to the people who are attempting to convict my client?
We have tools at our disposal to obtain information – we don’t need to sacrifice our clients’ rights in order to obtain that information.
Or this quote from a current Harris County ADA that I’ll leave anonymous for his sake. When I asked for his opinion about reciprocal discovery, this the response a couple of days later:
I owe you an opinion on reciprocal discovery. One word: bologna. The state holds the burden of proof and the defendant should never hold any part of that burden.
And if none of the above spurs you to contact your state rep and senator to oppose these identical bills, perhaps this will. From the Texas Tribune article linked above:
Polk County District Attorney Lee Hon said he expected the legislation would have additional momentum at the Capitol this year given the high-profile exoneration.
“It’s going to be a very timely discussion in view of everything that has gone on in Williamson County and some of the other exoneration cases,” said Hon, who is president of the Texas District and County Attorneys Association. “I think both sides could definitely stand to be a little more transparent.”
Now, put on your thinking cap for just one minute, okay? Note that District Attorney Lee Hon is listed as the President of the Texas District and County Attorneys Association. Why does that matter? Well, this is why. Recall that Harris County District Attorney Mike Anderson recently brought in a trainer from the TDCAA and told his ADA’s that the TDCAA was in the building to stay. And then the trainer for the TDCAA proceeds to tell the ADA’s that the attempts to get innocent people out of jail are nothing more than attacks on prosecutors. Paul Kennedy writes about that training here: How to form a cult.
So, again, thinking caps. Why would an organization like TDCAA, which sends out trainers saying that the Innocence Project is equivalent to their enemy, support a bill that requires the defense to turn over witness lists and other materials that they have produced?
(for a formal paper discussing Rule 16, the Federal version of reciprocal discovery, see this paper from Baker Botts, The ‘Chief’ Problem With Reciprocal Discovery Under Rule 16)
(to view the Harris County District Attorney’s office policy on discovery under former DA Pat Lykos, click here)
Robert Pratt says
I’m in full agreement with you on this.
thank you for getting this info out there. I had no clue that the democrats would even try something so stupid.
Brad Walters says
I hope all attorneys are reading the agreement they sign when they get copies of offense reports. It requires that the discovery provided be used only in the case at hand. So if you glean impeachment material regarding the truthfulness of an officer you have agreed not to use it in your other cases involving that officer or share the information with your colleagues on the defense bar under the threat of having this information withheld from you in future cases. The drafter has obviosly not read Brady or Kyles. An ADA in a felony case is withholding such information on a previous case in the state’s file and won’t turn over impeachment material because it will hurt them on other cases involving the officer. This ADA was going to give me this info but balked because I want to use it in other cases and share it with other defense attorneys. Truth be told the ADA should be the one sharing this information with all defense attorneys involving the officer who fabricated his reasonable suspicion for a stop. This ADA’s coworker also failed in her duty to seek the video in the case which has a great deal of exculpatory evidence on it. I finally got the video through a subpoena which was lucky because I came on the case months after the arrest and we all know how videos tend to dissappear if not subpoenaed within thirty days. But according to this ADA I am being unprofessional for calling them on these abuses of due process.