TDCAA Community
New Discovery statute SB 1611

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May 23, 2013, 16:32
Terry Breen
New Discovery statute SB 1611
SB1611--The Michael Morton Act which revolutionizes criminal discovery in Texas takes effect Jan. 1. The act does several things, all of them harmful to prosecution and law enforcement.

Perhaps the most egregious, it makes the use of confidential informants by law enforcement almost impossible, because the state is now obliged to turn over to the defense all witness statements, recordings, etc. that contain "evidence material to any matter involved in the action . . . ." Even if the state has no intention of using a witness' testimony at trial, the defense still has, in the words of TDCAA Executive Director Rob Kepple, an "absolute right" to the witness' statement.

For the past half century, defendants have had the right to all exculpatory and mitigating evidence in the state's possession. SB 1611 expands that right to now include all "material evidence," which includes incriminating evidence.

The heart of SB 1611 is Sect. 2 (a) which reads: " . . . as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photography by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state."

Does the act allow the state to get an ex parte order from the court to shield a vulnerable confidential informant from the defense? No.

I proposed such an amendment to the House Judiciary and Civil Affairs Committee, but it was rejected after they heard from Rob Kepple. He testified as follows:

"Our Association did quite a study on exonerations and the phenomena. One of the cases we did not study, however, was Mr. (Michael) Morton's case because it was in the loop so to speak. And one of the things we discovered, after things played out there, was the glaring mistake--the glaring defect--was that offense reports and witness statements were not required--absolutely not required--under the law. Shortly after that came out I can tell you the leadership of our Association, along with a number of other prosecutors--urban, rural prosecutors--discussed the issue and decided that they wanted to support a measure that would guarantee that offense reports and witness statements--the very things that were kept away from Mr. Morton's lawyer--would never again be kept from the defense team.

"So a lot of people got together in working this bill. There are things about it that some people don't like--I understand that--but the prosecutors who worked to develop this understood that it is a negotiated process and there is give and take and they're satisfied this bill is a fair compromise: it produces the evidence the defense needs and it protects victims and witnesses in those circumstances where they need protection," he said.

He was asked about my proposed amendment allowing the state to get an ex-parte order from the court to protect a vulnerable witness. He explained that they looked at this problem, and it was solved in another way. "At the end, it went in a different direction . . . where there is this absolute right but there are these fairly stout, absolute protections of certain information for victims and witnesses. And I can tell you the prosecutors felt comfortable that was the way to go," he said.

So what are the Act's "stout, absolute protections" for vulnerable witnesses? They are 3-fold. 1) Def. Atty.s must redact the address, phone numbers, etc. of every witness before showing a statement to a defendant. 2) Def. atty.s are not allowed to make copies of discovery items for the defendant. 3) If a def. represents himself, he must be allowed to see and hear all of the discovery materials, but the state is not obliged to allow him to copy the material. In all cases the defendant gets to hear and read the witness statements.

To my mind, these "protections" are not only not stout, they are not protections at all.

This bill effectively ends the use of confidential informants in Texas law enforcement. Admittedly, this will not affect a great number of prosecutions. For the most part, only the most serious and dangerous cases will be compromised by this aspect of the bill. In some cases, the only way to protect a vulnerable informant will be to dismiss the prosecution.

But ending the use of confidential informants is not the only noxious aspect of this bill. By creating a right for defendant's to have all "evidence material to any matter involved in the action," it creates the opportunity for judges to suppress valuable testimony simply because a witness' statement was inadvertently not sent to the defense in a timely manner. Judges are not mandated to do this, but those who are weak on the law or who are just bloody minded, will now have authority to keep out such evidence, and it will happen. This will result in more hung juries and acquittals of guilty defendants.

The bill also requires, before a plea of guilty, that the state provide a list detailing "all documents, items, and information provided to the defendant under this article."

If a pro-se defendant pleads guilty to Class A Assault--Family Violence, and the state neglects to include this list in the plea papers, or if the State's list is so generalized as to not comply with this statute, is that conviction subject to collateral attack at a later date, so that it cannot be used as an enhancement to F-3 Family Violence? The appellate attys I talked to don't know. It will have to be litigated.

This is the most anti-law enforcement bill to come out of the legis. in memory. The fact that it was pushed by the leadership of the TDCAA makes it especially galling, and the fact that it was sold as a bill that "all the stakeholders," (i.e. including you and me) is even more galling. Moreover, this bill does nothing to protect that very small sub-set of criminal defendants who are actually innocent. Michael Morton, for whom the act was named, would have had the same result if this act had been in effect when he was tried in 1987. The fact that Kepple and the TDCAA leadership do not know that indicates that they failed to do their due diligence prior to advising the legislature on this important issue.

Michael Morton was convicted of murdering his wife and spent almost 25 years in TDC before being exonerated by a DNA test in 2011. The court of inquiry, 10 days before SB 1611 came up before the Judiciary & Civil Affairs Committee, charged that Morton's prosecutor, Ken Anderson, made a "conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge . . . ." The court charge that Anderson lied to the trial judge when he was asked if he knew of any exculpatory evidence, and when he was ordered to turn over the offense report to the judge, so the judge could satisfy himself there was no exculpatory evidence, Anderson turned over a shortened version that excluded exculpatory evidence.

Nowhere did the court of inquiry say there was a gap in the law that allowed Anderson not to inform Morton's attorney about the exculpatory evidence, nor did the court ever claim that the failure of the state to provide Morton's atty. incriminating evidence pre-trial contribute to his wrongful conviction. Read about it here:

It is also apparent the TDCAA's leadership did not bother to read the TDCAA's own report, "Setting the Record Straight," which discussed the issue of exonerations and open files. Had they read that report, they would have discovered that the prosecutors who worked on that project found only 4 cases where an innocent defendant was wrongfully convicted in part because of a closed file policy. All of those cases were extremely old (one dated to 1979.) And as the author of the report noted, closed file policies in Texas prosecutors' offices are a thing of the past. Out of over 330 prosecuting agencies in Texas, they were only able to find two that still have a closed file policy. This bill was an effort to fix a problem that no longer exists.

The TDCAA's leadership's enthusiastic support for this deeply flawed bill, has misled the legislature into passing an act that runs counter to the first purpose of state government--to protect the people from the criminal element--and it does so without adding an iota of protection for the innocent criminal defendant. I fear this will harm the Association's credibility with law makers for a very long time. More importantly, it has led to the enactment of a bill that is harmful to the cause of justice, and dangerous to the people of Texas.
May 23, 2013, 16:56
But will the Bill do the job in helping to prevent WRONGFUL convictions? That is the whole point here. That is what the public DEMANDS.

Remember Blackstone and his 'ten guilty men' quote?

In my opinion - and in the opinion of MILLIONS of fellow Americans, the first purpose of state government is to punish the guilty, not the innocent.

If you want to get mad at someone here about this Bill, don't get mad at the TDCAA leadership. Get mad at <<redacted; no personal attacks unless I like you - Admin.>>

I'll bet if there was a TDCAA way back in the 1960's there would have been doom & gloom posts like this with regards to Miranda and Mapp v. Ohio. The same thing that happened then will happen now. You roll with the punches, adapt, and you do your job. Or you can just get voted out of office come next election.

This message has been edited. Last edited by: Shannon Edmonds,
May 23, 2013, 21:28
Terry Breen

No, the bill will not help innocent criminal defendants. Since at least 1963, the prosecution has been bound to turn over to the defense--without a court order and without even a motion from the defense--all mitigating and exculpatory evidence. SB 1611 does not add to that. What SB 1611 does is broaden the evidence defendants have a right to, to include incriminating evidence.

If you read the article on the link at the end of my post, you will read what the court of inquiry found after taking testimony for several days. The court blasted Ken Anderson for violating Morton's rights as they existed in 1987.

Reading between the lines, it appears that Morton's def. atty. had some idea that Anderson was hiding exculpatory evidence from him, because judges don't normally demand to see the State's file to satisfy themselves that the prosecutor has turned over all exculpatory evid. The judge ordered Anderson to turn over his offense report to him to read to ascertain if there was any exculpatory evidence, and according to the ct. of inquiry, Anderson deliberately left out parts of the offense report that contained exculpatory evidence before he handed it to the judge.

If Anderson was willing to doctor an offense report before giving it to his judge, what makes you think he would have turned over the entire offense rpt. to Morton's atty. if SB 1611 had been in effect then?

The problem with the Morton case was not that there was a gap in the law that allowed Anderson to keep exculpatory evidence from the def., it was that Anderson, according to the ct. of inquiry, deliberately violated the law. Passing a statute that mandates that honest prosecutors turn over their entire file will not solve that problem. SB 1611 is not a rational response to the Morton miscarriage of justice case.
May 24, 2013, 09:44
Frankly, and not really responding to Terry, the aftermath of the Morton matter commands that these sweeping changes be done. Mr. Morton's life, or a good portion of his prime years, was stolen from him. We can't give him back those 25 years, but I truly believe it will make him heal even more than he has, and his healing has been remarkable, by working to ensure no one else ever has to walk in his shoes.

To my mind, prosecutors should be thankful that we got the bill we got and not something more severe.

I've never met Mr. Morton, but have read everything I can find about his case and all of the related proceedings for the past two years. I admire this man to no end, and our profession owes him and the other citizens a pledge that we will do what we can to prevent this from ever occurring again.

I've had an open file policy for my entire career. Folks like my old boss, John Healey and my current boss, Bryan Goertz, mandated it. I never had a problem with it. They felt it necessary for the accused to know all the evidence against him and I have always agreed.

If you search this forum you'll find some debates from years past between myself and former DA John Bradley. In those exchanges, I argued for an absolute open file policy like I practiced with. He disagreed.

Being the son of a former prosecutor and a long time defense attorney had convinced me that abuses in closed files could only be cured by having an open file.

I've even had murder cases, bad ones, where I even gave a copy of MY NOTES to defense counsel along with a full copy of the file. Because they had what might be deemed as mitigating or exculpatory evidence in them.

It's been my policy since I began prosecuting felonies to give an entire copy of the file to defense counsel once the case was set for trial, in addition to having that file that was open from the get go.

My open file policy and my copied file policy have not prohibited me in the least from obtaining big sentences for bad violent criminals over the years. It has NEVER handicapped me even when it revealed facts adverse to my case. And of course, it eliminates a plethora of appellate issues.

I really recoiled in horror when former DA and now Judge Anderson testified to the effect that he wouldn't be much of a prosecutor these days if he had to give everything to the defense and that he would lose a lot.

When I've lost, it wasn't because of the open file policy but because of the facts and the truths they revealed.

So Anderson's diatribe against open files and the huge pre-trial contest just for Morton's attorneys to attempt to get access to his complete file goes against everything our profession is supposed to stand for.

Once, I was put on the stand by appellate counsel during a motion for a new trial hearing. I was asked what I had given in discovery to trial counsel. I said everything. The appellate attorney asked in disbelief "you gave him everything?" and once again I said yes, and pulled a copy of everything that had been sent certified mail to his client's trial counsel. After staring in disbelief at the discovery packet, which was everything from the file, all the appellate counsel could say was "no more questions for this witness, your honor".

I go back to what I said years ago in the previously mentioned debate on this forum about open files. I said that if YOU were charged with a crime, wouldn't YOU want to see the state's file and really be aware of all the facts and circumstances in evidence against you.

If you answer no, you're just lying to yourself.

One day, I hope to meet Mr. Morton. Unlike others who had contact with his case, I will devoutly apologize to him for what members of our profession did to him, even though I never had anything to do with his case. To my mind, those folks who did handle his case and prevent his access to justice by virtue of "closed files" and testing refusals owe him a lifetime of apologies and had better be thinking up their closing argument for when they meet St. Peter.

I am proud that my former Boss Mr. Healey and my current boss Mr. Goertz have always treated requests for testing with the same outlook they would if it were them in prison. They wanted the truth to come out, and if by some accident untested evidence would change the truth of what the jury found, so be it. Truth and justice are more important than all else. You can't be truth seeking and fulfill your oath to see that justice is done if you're fighting open files and post-conviction testing.

We're supposed to be better than anyone else as per our unique oath that we as prosecutors take to see that justice is done. Judges and defense attorneys don't have to take our oath, only we do. It's sad that legislation to further that oath has to be enacted, but if it is necessary to get all to do the right thing, then so be it. Yes, there will be additional burdens for those who don't have open files now. Deal with it. We cannot afford to have another Mr. Morton situation occur.

And as an aside, I've never liked CI cases. If this means it's the end of them, good riddence.

And I heartily commend the TDCAA for helping get this law passed, instead of fighting it as some have fought testing in the past. Thanks for that, Rob and Co.
May 24, 2013, 12:04
Martin Peterson
I share Greg's endorsement of providing an open file, and it is my understanding that Terry's office has had a conditional open file policy for years. And I believe both received the tutelage of Healey.

But, I believe it may be important to note that the amended statute does not mandate the use of an open-file. It will now provide for the disclosure of more inculpatory evidence (something the Supreme Court and the CCA have declined to say is necessary to afford due process), but only in so far as disclosure of offense reports and witness statements is now required. So, the new rules are consistent with an open file, but not a replication of an open-file policy.

In my view, the real issue that has arisen is whether an open file can still serve as a substitute for the broadened statutory discovery right and exactly how that will mesh with the statutory record-keeping requirements. In my view, The single most important change in, and benefit of, the new statute will be that the courts no longer have any authority to order discovery (except to limit it). In effect the legislature has prescribed a uniform, standardized right and scope of discovery that no judge can enlarge or vary from. There may be cases where the prosecution dislikes the scope or mechanism of the statute, but by and large the whole process has been made more predicatable. Time will tell how well the revised law works, but even if Morton's case had provided no backdrop at all for reform, it would have come and disclosure of the offense report and probably witness statements would have been part of the change.
May 24, 2013, 12:37
Well said, Greg. And I wholeheartedly agree.
May 24, 2013, 14:09
Terry Breen

Did you ever prosecute a case where the police had a CI they did not want revealed? Did you always inquire of the police if there were CIs that gave them info that helped them in the investigation? Did you turn over their statements to the defense?

If so, shame on you for endangering someone for no good reason. If you did not, well get ready, because this Act requires it.

Frankly, I believe apologizing for something that you are not responsible for is an empty gesture. No prosecutor today is responsible for what happened to Michael Morton. That responsibility lies with the man who prosecuted him, Ken Anderson.

As for open file/Closed file: the point is that according to the court of inquiry, Anderson deliberately hid exculpatory evidence. It does not matter what his office policy was on files, he was obliged to turn over that evidence to the defense, without being asked for it. But in fact, he was asked for it, and according to the ct. of inquiry, he doctored the offense report to exclude the exculpatory evidence, and then gave it to the judge. If a man will doctor an offense report to exclude exculpatory evidence when ordered to turn it over to the court, do you really believe he would have given the whole deal to the defense atty. if that was the law? Let's get real.

The fact is, the Michael Morton Act would not have prevented the exact same miscarriage of justice from happening.

I actually worked for a fellow who had a closed file policy. It is an enormous amount of work: you spend all day in moronic Discovery Motions Hearings, and then you spend hours giving bits and pieces to the def. atty.s. Because they have nothing to counter the happy talk, evasions, and boloney they get from their clients, you end up with more pointless cases to try, and slower pleas. No wonder virtually the entire state has gone to open file, which is far less work, and results in quicker and more pleas. If you read the TDCAA's report "Setting the Record Straight," you will learn that they could only find 2 offices out of over 330 that still cling to the closed file policy. If left alone, those offices will eventually go open file for the same reason everyone else has. You don't make the use of Confidential Informants impossible, and turn the entire discovery law upside down to get two moss-back outfits to change their ways.

The Michael Morton Act is an irrational response to one man's actions almost 30 years ago. It will degrade justice in our courts, and that should be the real concern for prosecutors, since "seeing that justice is done" is our job. The fact that the TDCAA leadership joined in this hysterical reaction really saddens me.
May 24, 2013, 14:26
I have no shame, Terry, for anything professionally I've ever done. Some have disagreed with my acts, yet I have owned what I've done.

I've been fortunate not to have a caseload where CI's are involved. Murders, child sex offenses, Burg Habs and agg robberies do not often have CI's.

However, supervising the caseload of other attorneys who have CI cases has shown me numerous abuses that come from using CI's. The biggest drug buy I've ever seen with a CI was a SJF. To my mind, I don't want crooks out there being "endorsed" by the police and LE committing more crimes while claiming to be helping LE. I could go on and on about why I don't care much for CI's but I think it goes against the constitutional right of being able to confront the witnesses against you when a CI is used and attempts are made to hide their ID.

It all goes back to what I said about open files. If it were YOU accused of the crime, would YOU want to know all the evidence against you? You already know the answer to that one.

And Ken Anderson did not act alone in the wrongful incarceration of Morton. There was about 6 years of fighting the defense to test the evidence, even when the defense agreed to pay for the testing if that was what was needed. Why don't you ask Mr. Morton if those 6 years of additional time he did behind bars were OK with him or whether he would have preferred to have been exonerated and freed from prison sooner. I think I know what his answer would be, and unless you know something I don't know, Ken Anderson disclaims any involvement in fighting the retesting.

I think Mike Morton would be a great keynote speaker for a TDCAA conference. Other prosecutors I know have met him and said he holds no grudge against those of us who were not involved in his debacle.

The old days are over and new times are with us. It's time to be realistic about these changes and why they have happened or probably consider a new line of work.
May 24, 2013, 14:29
And finally, I've had damn good results in locking away very dangerous people in my career, even with an open file and laying all the cards on the table. Anyone who says it is not possible to fight crime with open files and full disclosures does not belong in the business.

And because I believe our profession has just begun making amends to Mr. Morton and his family, I would gladly and happily shake his hand and apologize to him for those in our profession who just don't get it.
May 24, 2013, 15:49
Terry Breen

I know you are extremely proud of the fact that you operate with an open file policy, and still you get convictions, and that is wonderful, but the fact is, having an open file policy does not set you apart from virtually every prosecutor in the state.

You asked if I were accused of something, if I would want to see all the incriminating evidence. What I would want, more than having a prosecutor who has an open file policy, is a prosecutor who has an open mind, who looks at the facts seriously, and does not hide exculpatory evidence he has. The fact that a prosecutor has an open file policy does not prove he has the above qualities, or that he is above hiding exculpatory evidence, nor does the fact that he has a closed file policy prove he does not have those qualities. Having an open file policy does not mean you are a good person. It just means you have an open file policy.

If you were the victim of a robbery, wouldn't you want the police to talk to their CI's to see what the "word on the street" is? And if the mother-in-law of the robber told the police--in strict confidence--that the def. had said in her hearing that he robbed you, wouldn't you want the police to act on that?

Suppose, a week before trial, the police discover an eye witness who can positively ID the Def., and noted his car's LP. The prosecution inadvertently fail to fax a copy of this witness's statement to the def. "in a timely manner."

Under present law, this would be no big deal. The def. is not entitled to see the witness statement until after direct examination, and if the state offers it sooner so much the better. But under SB 1611, the def. now has a right to see the statement "as soon as practicable." Any good judge would allow in the statement, but a weak judge, who is unsure of himself, and to protect his record on appeal, will, "in an abundance of caution," suppress the evidence. So, wouldn't you want the judge to allow in the witness's testimony?

Suppose the judge suppresses the evidence--not because it is prejudicial, but because it is incriminating evid., and the def. had a right to see the statement "as soon as practicable" and the DA's Ofc. screwed up and failed to fax it to the def. atty. right away, and the judge is deathly afraid of being overturned on appeal. As a result, valuable incriminating evidence is kept from the jury, and as a result, they acquit a guilty man, who goes on to rob other people. How do you feel about that? And are you willing to apologize to the subsequent victims of this man? Seems to me, they have more of a right to your apology than Michael Morton does.
May 24, 2013, 16:36
I suppose, all of that could happen under that tortured set of facts. But then if that hypo ever came to life, I'd appeal that judge's ruling.

I've always thought the Gaskin rule was lacking. By providing that info up front, I can stand in front of a jury when a D attorney is acting like it's the first time he's seen it and say that the D atty was provided that witness statement months before on a specific date. Juries are pretty good at figuring that one out.

Why hold anything back?
May 24, 2013, 18:38
Terry Breen

Who said anything about holding anything back? If you read my post, it says the statement was "inadvertently" not sent to def. counsel "as soon as practicable."

As long as everything works like a clock--all DA's Offices get every newly discovered witness statement off to the def. atty. lickty split in every single case, and the police no longer need CIs--the only difference SB 1611 will make over how discovery is done now is to require prosecutors to do more paper work (listing all the evidence provided to the def. prior to a plea). SB 1611 will not harm the state, nor help the innocent defendant.

Under the perfect-world-with-no-need-for-CIs scenario, all SB 1611 is is an empty feel-good statute designed to do what the Legislature does best: fix non-problems.

But in the real world--where I live--police need CIs for all kinds of cases, and SB 1611 will create serious problems. When prosecutor's offices fail to send a statement to the defense attorney soon enough to please some hostile, big-headed judge, and good and valuable testimony is kept from the jury, this statute will on occasion become a major impediment to the cause of justice, because sometimes the lack of that witness will result in the acquittal of a guilty defendant. That is the real-world cost of SB 1611.

And SB 1611 does this without protecting a single, innocent defendant.

And maybe that is ok. Maybe not solving crimes because you can't use CIs, and the acquittals of guilty defendants because otherwise good evidence is suppressed for artificial reasons, is a price some of us are willing to endure, since it makes us feel especially virtuous to support this bill. Let's at least be honest that that is the true cost of this bill.

And since you feel that that cost is acceptable, it is only right you should apologize on behalf of all prosecutors who support SB 1611 to all those future victims who will not receive justice, and all those future victims of crimes that were not prevented because of acquittals of guilty defendants due to SB 1611. I think that is the only decent thing you can do. And I think--deep down inside, because you are such a decent guy--you agree with me.

This message has been edited. Last edited by: Terry Breen,
May 24, 2013, 18:54
Terry Breen

You need to read the article on the court of inquiry. I provided a link at the end of my first post.

The ct. found that Anderson deliberately gave the judge the offense report dealing with the first part of the investigation, which contained no exculpatory evidence. The exculpatory evidence came a few days into the investigation when Morton's mother in law reported to the SO that Morton's 3 y.o. son said a monster killed his mother--not his daddy.

That would have been a supplemental report, and all Anderson had to do was not include it with the first part of the report when he turned it over to the judge.

The court found that the exculpatory evidence was deliberately kept from the trial judge. SB 1611 will not prevent a rogue prosecutor from not turning over such evidence.

Moreover, virtually all prosecutors offices have open file policies already. See the TDCAA's report, "Setting The Record Straight,"

As far as your not being able to trust ANY prosecutor--I am afraid that is a psychiatric problem I am not qualified to help you with.
May 28, 2013, 21:45
To cap off this thread, I'll note that the Honorable Ken "Ken's Cap" Sparks, retired, predicted all of this in his seminar presentation at the Corpus Christi Annual in 2007. By "this" I mean an exoneration and a tremendous response by the Legislature. I don't know if he meant the Morton case or another one that was in progress at the time, but I recall he mentioned a case that was barreling down the tracks like a downhill train with no brakes and that this case was going to cause massive change. He also spoke about the ethical and legal duties of a prosecutor in regards to this.

It was really an accurate prediction of the aftermath of the Morton case, and little did he know...
May 29, 2013, 10:37
Jeff Swain
To take this thread in a somewhat different direction, it appears to me that compliance with this law is going to take additional resources. Our office has had an open file policy since at least the mid-90's in which we provide copies to the defense attorney of everything that we have on a case, so we will not be providing anything new to the defense bar. However, I think it is going to take additional manpower to comply with the additional requirement of the new Art. 39.14 Sec. 2(j) wherein we have to provide a list at the plea or otherwise in writing of all documents and other things provided to the defense.

I am curious how other offices are going to handle the additional paperwork requirements of this new mandate. Are other offices going to request additional staff to handle the extra burden?

Is this something that will be easily generated by the electronic system that counties with good paperless systems like Tarrant County are using?

Does anyone think that we can just maintain an electronic copy of what is provided and incorporate it by reference in the "list"? I don't think that I'm misreading the law in understanding that we have to have a full, complete, detailed list of each and every document, disk, etc., receipt of which is acknowledged by the defense. I think we need to list each offense report and supplement by each officer who does one, each witness' statement, number of pages of each, and detailed description of all disks and any other media provided. Is this additional documentation what was envisioned by the creators of the bill and is it how everyone else is reading the bill or is there something that I'm missing?
May 29, 2013, 11:39
Brody V. Burks
Our office is a "paper" office. As a small county with multiple agencies, I don't envision us going to a paperless system any time soon, certainly not before the law goes into effect. Creating that detailed a listing of every plea seems like the kind of burden that will absolutely kill our ability to do any "day of" pleas.

It would be nice if we could simply make a second copy of all the discovery, attach the entire envelope as an exhibit to the plea, and offer it to the court's file. Then there's no question about what's been provided. Unfortunately, that would put it all into public record, and probably cause our local clerks to have heart palpitations.

Is anyone considering a checklist form to be included? Something that could be hand written in court, either by the DA or defense attorney, to take some of the burden off support staff in our smaller counties?
May 29, 2013, 13:23
C. Martin
Brody that is what I am currently working on for our office. It will be a living document in that it will be part of original file and everything that is provided to defendant will be specifically described and signed off by defense counsel or agent for him/her. That way at time of plea hopefully we have a document both sides can agree on for the record.

If it is a "day of" plea hopefully the form will allow for a reasonably quick fill out by the parties so the case can be moved.
May 29, 2013, 20:55
Terry Breen
Jeff & Brody:

A major selling point for SB 1611, in the thoroughly false and dishonest bill analysis, is that the act will greatly increase efficiency in the criminal justice system. Read it here:
May 30, 2013, 00:30
Convicting the guilty and not the innocent seems wayyyyy more important than any efficiency. Plus, only having to go to trial one time, against the right person, seems better than having to go through the process of undoing a conviction and then going after the right person.
May 30, 2013, 07:41
Having worked narcotics, and using CI's, I have found that most of them have always wanted to remain anonymous. I have always told them I will do everything in my power to keep them such, but always warned them that the court can mandate me identify them. I do see problems with this bill, later down the road when it comes to using CI's, but I have always operated under the idea that the informant will become identified at some point. Working small time crimes, this should'nt be a problem, however working larger cases where the bad guy is connected with people who dont mind violence- this could become a larger issue. As an officer, and reading over these posts, I can see both sides of the argument here. No one wants to see an innocent person go to jail. We as police get frustrated when the community yells at us to do something about a crime yet they will not come forward, forcing us to use CI's. The way I see it- we have always had laws we dont agree with, which came about due to someone being a complete moron. I believe this is the same thing here- with more than one moron.

End result- we push forward and proceed.