Lt. Governor Dewhurst succeeded in getting an amendment to SB 1611 that garnered the unanimous support of the Senate. One would guess the House will be reluctant to do much but vote in favor of the Senate compromise bill, as many groups are pushing to change the antiquated 1965 version of the discovery law this session.

But, some of the new language, if it remains as voted on by the Senate, will prove troublesome.

Subsection (j) provides:

"Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article."

Who is "accepting the plea" in this sentence, each party? The State's attorney will have "produced" items for examination, etc., but will the defense attorney always be willing to acknowledge receipt? And, who prepares the list, and how detailed should it be? In many cases it is going to take considerable time to prepare such a list, especially if it must be individualized to the case, as subsection (i) implies by referring to creating a record of each item provided. Yet, "the list" is something that will now be required in every single case. I am guessing this makes quick pleas in misdemeanors virtually impossible. Maybe defense attorneys will simply never make the "request" spoken of in subsection (a), but that is a scary proposition too, as it would seem imprudent for any defense attorney in any case to agree to discovery outside of the statute.

Are there ways around this or other requirements? Probably not, because subsection (n), by implication, means that the parties cannot agree "to discovery and documentation requirements [any less] than those required under this article."

Also now gone are the explicit provisions for protective orders (former subsection (d))that the Senate Committee reported favorably on. I suppose protective orders may still be available, but without much guidance or uniformity.

The committee substitute was acceptable; the floor version, however, has some definite issues. I know everyone has already fought hard and long to get a "good" version. But, in my view, the fight ought to continue, as the prize is not yet won.

Instead of calling it the "Michael Morton Act," a more accurate name would be "the Gang Witness Intimidation Act," since it requires the state to show defense all witness statements, no exceptions. If you have a witness that may be intimidated--or worse--if he is revealed prior to trial, well, that's just too bad.

It is a bad bill in other ways as well. It creates tons of busy work for prosecutors,and it creates more chances for valuable evidence to be suppressed for no good reason. It also provides more chances for a reversal. And yet it provides exactly "ZERO" more protection for the innocent defendant than the current law.

Moreover, it is utterly unnecessary. Supposedly the point of the bill is to require open files from prosecutors. If you read the TDCAA report "Setting The Record Straight," (found above the "Case of The Week" on the home page) you discover that the TDCAA subcommittee that looked into prosecutor misconduct, etc. found only 2 prosecutors offices that still have a closed file policy--out of over 330 offices.

If left alone, eventually those two offices will go to an open file policy, for the same reasons the rest of the state has: it is far less work, and you get more pleas. (Has anyone ever heard of an office that went from an Open File Policy to a Closed File Policy? Not likely.)

What we have here is a feel-good bill that is a step backwards from the goal of protecting the innocent and punishing the guilty.

If this mess becomes law, maybe making a copy of the file with a copier that prints page numbers on the bottom of each copy (most newer copiers have this function available), and having a relatively generic statement that "the defendant was provided XX pages of discovery, which included all witness statements, offense reports, photographs, and other discovery to which the defendant is entitled" would suffice? Otherwise, I believe the days of quick pleas are certainly numbered. And what about sec. 12.45 cases - would we have to document that discovery was provided in all cases being considered for punishment under that section as well as the primary case?

Gee, a defendant never has to worry about trial if all he does not "agree".

Larry,

The bill states, "Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article."

That sounds like you have to make a list and specify every "document, item, and information." A general statement will not do.

So what happens if this is not complied with? Is the conviction subject to a collateral attack so that it can not be used later for enhancement purposes? If so, expect a lot of wife and girl friend beaters to never make it to district court, same for some chronic DWIs.

Current law (and the law in effect when Michael Morton was prosecuted)mandates that the prosecutor turn over to the defense all exculpatory or mitigating evidence. The court of inquiry charged that the DA in Morton's case deliberately violated this. It did not claim that there was a gap in the law that allowed the DA to get out of giving this evidence to Morton's attorneys. That is why he was wrongfully convicted. If this bill were in effect at the time, it would not have made any difference.

What the bill does is expand the evidence we are required to turn over prior to trial to include not just exculpatory and mitigating evidence, but now we must give them incriminating evidence as well. This does not protect innocent defendants. Instead, all it does is set up potential traps for the prosecution in failing to send on to the defense newly found incriminating evidence, which the court will be free to keep from the jury.

This is a really, really bad bill.

Terry - That is pretty much my thinking, that a generic statement probably will not be sufficient. It looks like maybe the legal assistants / intake personnel are going to have to generate a document log for every case with a least a basic description of each document, statement, report, etc.

I certainly agree that this would not have made a difference in MORTON.

The Senate version of new art. 39.14 was passed by the House this morning 146 yeas, 0 nays. I will dare to say the Governor will not stand in the way of it becoming law. At least everyone has until January 1 to make the necessary changes in their discovery processes. The involvement of trial judges in the discovery process should become much less. Those places that have had standard discovery orders in place should see the least change. Those very few jurisdictions that have insisted on a closed file will have the most growing pains to get through.

Martin,

The TDCAA subcommittee that looked into all this could only find 2 DA's offices that still have a closed file policy--out of over 330 prosecuting offices in this state. If the point of this legislation is to insure everyone has an open file policy, it is a little late to the party.

In fact, this bill will greatly increase pre-trial litigation. Our office, for example, has a "closed file policy." However, if the def. agrees to waive Discovery motions, 404(b)notice, and other notice, then we provide them with a copy of everything in our file, except the rap sheet, which DPS does not allow. They can see the rap, however. We have not had a Discovery hearing in over a decade. Discovery is a non-issue.

This act creates a new right for the defendant. In addition to having a right to exculpatory and mitigating evidence, as they have had since at least Brady v. Maryland in 1963, they will now have a right to all incriminating evidence. Note that Michael Morton, according to the court of inquiry, had his rights trampled on by Ken Anderson, the DA, because Anderson deliberately hid exculpatory evidence from his attorneys. He was not wrongfully convicted because of a gap in the Texas discovery statute, he was wrongfully convicted because the prosecutor in the case violated the law.

Two weeks ago we tried a guy for retaliation against a cop. The def. had all of our statements, police report, etc. for many months. A week from trial the lead prosecutor found an across-the-street neighbor who witnessed the whole deal, and got a statement from him. He failed to fax it to the def. atty., who complained at trial. He did not have a leg to stand on, and the witness testified.

Had this monstrosity been in effect, the judge might have "out of an abundance of caution," kept his highly relevant, and useful testimony from the jury. Expect plenty of problems like that.

This requirement to turn over all material evidence in the file knows no exceptions. If you have a vulnerable witness, for example in a gang case, who fears retaliation, you cannot keep that witnesses' statement from the defense. In fact, even if you chose to not call that witness, the bill obliges the prosecutor to turn over that witnesses' statement to the defense. That is extraordinarily dangerous.

But it's not law yet. You can sit on your duff and do nothing, or you can call and write the Governor's Office and let him know how you feel. He has been known to veto a bill now and then in the past, you know. But he won't if we don't let him know.

By the way, the sponsor of this bill, when it was in the House Judiciary and Civil Affairs Committee explained that this is a bill supported by both prosecutors and the defense bar. I don't recall being asked.

Does anybody have the final version of this law signed by the Governor, or a website address for the final bill.

Thank you.

Aren't there requirements in this bill that are in conflict with other statutes? For instance, discovery in child porn cases, dissemination of CAC videos, and giving copies of TCIC/NCIC records? (Ex: 39.15 and 38.45) Do we have to start handing out child porn and CAC videos now?

The bill notes those exceptions.

Any thoughts on where medical records of victims, or cps records would fit in this construct (presuming no brady material within).

Any thoughts on jail calls as recorded statements of the defendant? Specifically, in our case, we have limited access to these calls but no control over retention. Not to mention there are hundreds if not thousands of calls that go unmonitored.

Many thanks for thoughts and constructive feedback!

The answer to what is subject to disclosure will depend on whether the request describes something that is not an offense report, a written or recorded statement of the defendant or a witness, including witness statements of law enforcement officers, or a book, account, letter, photograph, or object or tangible thing that constitutes or contains evidence material to a matter involved in the action and already in the possession, custody, or control of the state or any person under contract with the state; or which describes something that is the work product of counsel for the state in the case and their investigators and their notes or something otherwise privileged. In my estimation, the request will likely need to describe how the item is material to what matter, at least where that is not otherwise clear. You presumably will have to make inquiry of all state agencies or persons under contract with the state to see what else may be out there before making a final response to the request. Most CPS records and medical records are likely "otherwise privileged." I would think the request must specifically identify what jail call is at issue and exactly why it is believed to constitute or contain evidence, before anything needs to be done in response. Self-serving statements by a defendant are unlikely to ever be admissible as evidence, except when necessary to explain another broader statement under Rules 106 or 107.

Martin I am not following here. The statute states that the evidence only has to be material not admissible. Never has the defense had to reveal to us their defensive theory to obtain discovery. So medical records that we intend to introduce to establish injury I would think we would have to turn those over as evidence material to any matter. Likewise, why the defense wants it is not the issue. The issue is whether we have recorded statements of the defendant [i.e. jail calls] and we do. You have stated before that the good thing about this law is that it gets the judges out of discovery, if that is true then are prosecutors to be the sole arbiter of whether something is material and therefore, must be turned over? What are you seeing in the statute that requires the defense to make a specific request for specific items? The way I read it, we [the state & all its entities] have it, they say they want discovery, we must turn it over. Please tell me I'm wrong show me why and will be deeply indebted to you.

My reply to Brian's inquiry assumed that we were talking about things that the State was not going to use as evidence and that were not Brady material. In other words, something that the defense might like to have the prosecutor find for them, but which were not covered by new subsection (h) nor the newly amended portions of subsection (a).

In that situation, the things desired must be "designated." I take that restriction to mean: sufficiently described both to show that the item actually constitutes or contains evidence of the offense to be tried and so it can be identified. A request for "any tangible thing not otherwise privileged that may contain evidence material to any matter involved in the action" would still be considered too broad to require any form of compliance.

So, if you have no recordings of jail calls in your possession, whether or not they can be considered exculpatory, you have no new obligation to preserve them or to locate them for the defense unless perhaps the defendant shows their specific exculpatory nature (content) up front. If you have already located a jail call that you believe might be admissible within the confines of Brady or to show guilt, you had better provide it for copying as soon as practicable.

Bottom line: the amended statute does not allow mere fishing expenditions any more than the 1965 version did (except that witness statements and offense reports are now clearly subject to disclosure).

But, we are obviously in uncharted territory and the prosecutor's obligations may have been broadened more than I perceive.