Defense lawyer wants all witness statements and officer's incident reports from any criminal file where the victim of a murder was an accused (regardless of the office (District or County atty) or county as those reports may lead to information that is mitigating to defendant's punishment (by showing that victim has the character trait of being the aggressor (404) or that he has a reputation of being violent (going toward the self defense or the punishment mitigation in that the defendant did the community a favor by killing the victim).
Do you have to go get this information from all of the police agencies, other county's district/county attorney's offices or even your own county's other prosecutorial office - and even possibly the CPS files that may have some inkling to the victim being of bad (violent) moral character?
Bruce A Hoffer
Those can be fact-specific, case-by-case determinations. Here are some past threads that touch on some of those issues:
Are you responsible for my file?
Morton and control of the state or any person under contract ...
CAC counselor's notes and Brady
You can also call TDCAA and speak to a research attorney for a more detailed response.
I agree with Shannon that the frustratingly short answer is “it depends.”
Like I said in the thread Shannon linked, 39.14 basically has this catch-all provision that seems to say anything in the possession “of the State” has to be shared on request.
There’s no further explanation in statute of who “the State” is, but there’s some case law (most of which is pre-Morton) which says the State is anyone who is part of the “prosecution team.” Which would lead to the conclusion that some other prosecutorial office not involved in your case specifically isn’t “the State,” and so you aren’t responsible for the information they have in their files. I can get you all the case law I have on that if you want to shoot me an email.
However, the other question I always ask myself in these cases (which you probably already have) is “does the defense have a point? Is that information I’d actually like to have myself in order to give myself all the facts I need?” Or more importantly... if I successfully argue that it’s not my responsibility to obtain those documents, is the defense just going to go do it themselves anyway? Because then you’re at a disadvantage if you don’t have them. You’re running the risk that you’re missing information you’re going to need to be as fully informed as the defense.
There is no doubt that over the past few years much more time and effort has been devoted by Texas prosecutors to compliance with the perceived requirements of the amendments to Art. 39.14 and especially the documentation requirement of subsections (i) and (j). But, I maintain that the principal things that the defense gained was access to offense reports and witness statements, recognition of what the new phrase "in the possession, custody, or control of the state or any person under contract with the state" means, and the right to supplementation of discovery, including post-trial. This seems supported by this language from Hernandez (Corpus Christi May 16, 2019): "trial courts lack inherent authority to order pretrial discovery any greater than that authorized by article 39.14." See also Nelson (Houston Dec. 11, 2018) ("Article 39.14 does not require the State to comply with general tools of discovery used in civil cases[.]"). Of course, Hernandez did not mention the suggestion in In re Tharp (Tex. Crim. App. Sept. 20 2017) (unpublished) that article 39.14 might not establish the "bounds of criminal discovery."
I believe this observation in Hoffman (Beaumont Nov. 14, 2018) remains pertinent—not for use as a means to justify non-disclosure or laxity in responding to a request— but to avoid assumption of unnecessary burdens or relieve anxiety: "The State's duty to provide information under the Michael Morton Act is only triggered upon a timely request. See Tex. Code Crim. Proc. Ann. art. 39.14(a). Under Brady and the Michael Morton Act, the State has only an affirmative duty to produce exculpatory information. See id. art. 39.14(h); Brady, 373 U.S. at 87. The Hoffmans' suspicions the State had not produced evidence does not establish its materiality. See Hampton, 86 S.W.3d at 612. For these reasons, we conclude the Hoffmans have not met their burden of establishing the materiality of the evidence, that it was exculpatory, or that such evidence existed." See also Delafuente (Waco Oct. 23, 2019) (undisclosed evidence neither admissible or material); Young (Austin July 19, 2019) (undisclosed statements did not "exculpate Young" because they did not 'justify, excuse, or clear the defendant from fault.'"). But see In re Moore (Austin July 11, 2019), where the court proceeded on the assumption that once requested, the State had the burden to assemble police personnel files and Chief Justice Gray's contention in Ray (Waco Oct. 10, 2018) (Gray, C.J., concurring) that "artificially imposing a materiality requirement [on disclosure] would effectively gut [the legislature's] effort in" the amendment to 39.14. Cf. Coleman, 577 S.W.3d 623, 634, 635 (Ft. Worth 2019) ("The State has no duty to seek out exculpatory information independently on defendant’s behalf" or to create a document); Gamble (Dallas Nov. 28, 2018) (incriminatory photo not subject to exclusion without showing of willful violation of discovery order).
More to the point (although we await the decision in Heath, No. 10-18-00187-CR), to my knowledge only the questionable decision in Deamus (Dallas Aug. 22, 2017) has involved the award of a new trial since the amendments and claims of violations of discovery have tapered. See McDonald (Dallas Feb. 19, 2020) (failure to disclose was only extreme negligence or reckless); Morales (Eastland Mar. 29, 2019) (officer lost his offense report that contained potentially useful info); Hillman, 579 S.W.3d 354, 361 (Tex. 2019), citing only a case involving a Brady violation for the proposition that "violations of the Act may constitute grounds for reversing a conviction."
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