By Lisa Falkenberg | March 14, 2013
If somebody were to sue you tomorrow in Texas civil court, you’d have the legal right to find out all about that person, from their financial situation to their personal email exchanges. And you’d expect your attorney to use this right to “discovery” as zealously as possible. After all, your money is at stake.
But if you were accused of capital murder tomorrow in Texas, you’d have no such right. Even though your liberty and even your life could be at stake, you aren’t legally entitled to so much as an offense report or a witness list to defend yourself against the state’s case.
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. He spent 25 years in prison before long-sought DNA testing finally led to his exoneration in 2011.
And yet, neither prosecutors nor the defense bar has gotten behind legislation that would help solve the problems.
The thoughtful, bipartisan legislation filed last week by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, is known as “reciprocal discovery” because it requires both sides to share files.
Last weekend, the Texas Criminal Defense Lawyers Association passed a resolution against the bill, saying it “opposes any governmental 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?
On principle, defense attorneys have a strong argument. They’re not to blame for the parade of exonerations we’ve seen in recent years. And the burden to prove a case is on the state, not the defense.
“A defendant, his only obligation when he’s charged with a crime is to show up in court and say ‘Prove it,’ ” says veteran Houston criminal defense attorney Troy McKinney.
He and others are also concerned that turning over their witness lists to the state could only exacerbate problems with law enforcement intimidating witnesses.
Clear time line
That said, McKinney acknowledged Ellis’ and Duncan’s bill is much better than previous legislation. It sets a clear time line for providing information that starts early enough to be useful. It requires law enforcement agencies to share files with prosecutors, who in turn share them with the defense. It allows defense attorneys to subpoena third-party witnesses.
None of that, though, can persuade McKinney to support the bill, which really wouldn’t really benefit his own practice because he already enjoys a good open-file relationship with Harris County prosecutors. Nearly every district attorney’s office in the state has voluntarily established an “open file” policy. But those policies are no guarantee. They’re subject to change with the next election.
The hodgepodge of policies, which vary from county to county, hardly constitute equal justice. A DA’s office that touts an “open file” policy may wait until the day before trial to open a file. Prosecutors sometimes require defendants to sign away certain rights to get a peek. Individual prosecutors may also choose to ignore policies, often with no consequences.
‘This is a good bill’
No criminal defendant should be at the mercy of a prosecutor’s kindness to defend himself. We’ve seen what can happen under that system.
Morton’s lawyers say Williamson County prosecutors hid information that could have prevented his conviction, including the fact that his young son had witnessed the murder and told his grandmother that Daddy didn’t do it.
Case law known as “Brady” already requires prosecutors to disclose such exculpatory evidence, but prosecutors have discretion in deciding what constitutes that evidence, and there are usually no consequences for Brady violations.
The new bill would actually give judges authority to impose sanctions for discovery violations.
Such changes led Patrick McCann, former president of the Harris County Criminal Lawyers Association, to change his mind about reciprocal discovery.
“It’s not something that I’ve come to easily,” McCann acknowledged. “To me, this is a good bill. It’s not a perfect one, but it’s a good one. And it ought to be given a shot to pass because God knows what we’re doing now isn’t working.”
McCann says it gives defense lawyers about 75 percent of what they asked for: “If you’re going to sit there and take your marbles and go home because you only got three-quarters of what you wanted, I think you’re essentially shooting yourself in the foot.”
More importantly, defense lawyers digging in their heels are hurting defendants across Texas.
Principle may be on their side, but that doesn’t go far in politics.
This legislation is bigger than any one lawyer. It’s about justice. If the defense attorneys don’t get behind this bill, you can bet the prosecutors won’t.
And if the only strong compromise bill we’ve seen in decades dies, it could be decades longer before we get another chance to implement the single most important defense against wrongful convictions.
How many more Michael Mortons will pay the price?