Every have a judge who granted every "discovery" request of the defense, even tho' the defense has seen your entire file?

I don't have that problem with the judges we have in this jurisdiction, but I've worked in other places where the courts routinely gave the defense just about what ever they asked for, even tho we'd already shown them the file. It really makes life a drag.

Well, our friend Martin Peterson, and his boss, Cindy Stormer, had that problem, but they did something about it. They filed a writ of mandamus on their errant judge, and the CCA recently ruled, giving them effectively everything they wanted. Here it is:CCA Opinion

Oddly, the CCA ordered the opinion not to be published, even tho they found no cases dealing with an abuse of discretion by a court ordering too much discovery. This is an extremely useful opinion because it is a common problem, and there are no cases on it. Perhaps the court will order it published if they hear from enough of us.

There are no guidelines for the court's decision under App.P.Rule 77.2. I agree that this decision deserves precedential value and that App.P.Rule 77.3 should not apply. I am not sure whether the court has ever changed a publication decision though, and if so, how that came to pass. As you point out, I do not think Judge Haverkamp's rulings were isolated or particularly unusual. But, at least two things are likely to prevent a change in the publication determination. First, the court does not want to get into any thickets as a matter of policy (see Jampole, 673 S.W.2d at 577-8). Second, of course, as always, the trial judge's abuse of discretion is purposely(?)not memorialized for all time in the Southwestern Reporter.

That said, if anyone feels as Terry does, please let me know and I will be happy to try to coordinate the effort.

The link to the case doesn't work. Can I get the cite? Thx

Wait, I'm not sure I understand this opinion. The court talks about the defense needing to show "good cause" to be entitled to discovery. Then it comes out with this:

quote:

---

But, in this case, we note that the trial judge was familiar with the open-file policy of the District Attorney. The policy would require a defendant to agree to forego filing or requesting a judicial ruling on any discovery motion in exchange for the District Attorney opening its case file to the defendant. The trial judge was acting within her discretion to consider that policy sufficient "good cause" in ordering discovery under article 39.14.

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How is a DA policy that permits complete access to the file in exchange for not filing formal discovery somehow translate into "good cause" for ordering discovery?

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-66,865-01

IN RE CINDY STORMER


ON PETITION FOR WRIT OF MANDAMUS
IN CAUSE NO. 06-202 FROM THE

235TH DISTRICT COURT OF COOKE COUNTY

Per Curiam.

ORDER

This is a petition for writ of mandamus filed by Cindy Stormer, the District Attorney of Cooke County. Relator seeks relief from an order of the 235th District Court of Cooke County ordering discovery under the provisions of article 39.14 of the Texas Code of Criminal Procedure, in Cause Number 06-202, State of Texas v. Herman Dewayne Williams.

Relator contends that Respondent, the Honorable Janelle Haverkamp, Presiding Judge of the 235th District Court, has exceeded her authority under article 39.14 in three specific ways. First, Relator asserts that the defendant, Herman Dewayne Williams, has not shown "good cause," which is explicitly required by the statute, before the trial court may exercise its authority to order the State to produce and allow inspection of material evidence in a criminal case. Second, Relator complains that the trial court ordered production of discovery materials at a specific date that had no relationship to a trial date, which had not been set as of the date discovery was ordered and before all of the requested evidence was available from testing agencies. Third, Relator argues that four specific discovery requests that were granted by the trial court exceed the limits authorized discovery under article 39.14 and therefore constitute an abuse of discretion.

It is the defendant's burden to show that he has "good cause" under article 39.14 before "the trial judge is required 'to permit discovery if the evidence sought is material to the defense of the accused." McBride v. State, 838 S.W.2d 248, 250 (Tex. Crim. App. 1992) (quoting Quinones v. State, 592 S.W.2d 933, 941 (Tex. Crim. App. 1980) (emphasis in original)); Oprean v. State, 201 S.W.3d 724, 728 (Tex. Crim. App. 2006). While we defer to the trial judge's decision to deny a discovery request in the absence of a showing of good cause, we have not held that a trial judge lacks authority to order discovery in the absence of a showing of good cause. For that reason alone, this Court would not grant mandamus relief. But, in this case, we note that the trial judge was familiar with the open-file policy of the District Attorney. The policy would require a defendant to agree to forego filing or requesting a judicial ruling on any discovery motion in exchange for the District Attorney opening its case file to the defendant. The trial judge was acting within her discretion to consider that policy sufficient "good cause" in ordering discovery under article 39.14.

In the context of the State's right to appeal pretrial rulings excluding evidence, we have said that the trial court has the inherent authority to control its docket, free from interference from the appellate courts. See State v. Roberts, 940 S.W.2d 655, 660 (Tex. Crim. App. 1996). Although we have overruled that portion of Roberts that barred the State from appealing a pretrial ruling excluding evidence, we did not alter or overrule our holding that trial courts have the inherent authority to manage their own dockets. See State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002). It is thus within the trial court's sound discretion to set a specific date for the State to produce evidence subject to a discovery order for the defendant to inspect and copy. Because the control of the trial court's docket is left to the sound discretion of the trial court, there can be no specific, definitive date, prior to trial, before which the trial court would abuse its discretion to order the production of materials subject to a discovery order. We will not address the State's argument that the trial court will (or might) suppress any evidence that was not produced pursuant to the present discovery order because it did not yet exist or had not been developed. Such speculation is not proper in a petition for writ of mandamus.

A trial court has the authority to order discovery under article 39.14. Article 37.07 and Rules 404 and 705(a) of the Texas Rules of Evidence also require the State to give notice, upon request, before it may introduce certain evidence at trial. Further, the defendant has a federal due process right to the disclosure of material exculpatory information as set out in cases such as Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Agurs, 427 U.S. 97 (1976).

The methodology of producing discovery materials is set out in article 39.14. The trial court may not order the State to copy documents and provide those copies to a defendant, but it may order the State to produce discoverable materials and allow the defendant to copy them under the supervision of the State. Id. (the trial court may order the State "to produce and permit the inspection and copying or photographing by or on behalf of the defendant" of discoverable materials).

The trial court does not have the authority under article 39.14 to order the State to create a document that it does not already have. Article 39.14 deals with the production of discovery materials, not their creation. (1) And article 39.14 explicitly exempts the State from producing its work product materials for inspection under that statute. Id. (stating that the trial court may order the production and inspection of designated materials "except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report"). The trial court may, under the reciprocal discovery provisions of article 39.14(b), order the State to disclose the names and addresses of its expert witnesses, and, under Rules 702-705, it has the authority to order any party to disclose the facts and data underlying its experts' opinion before they may express an opinion.

Applying these rules to respondent's discovery order, we find that the trial court granted four requests which exceed, in whole or in part, the trial court's authority to order discovery under article 39.14. Defendant's request A.2 sought

A list of the names, addresses and professions of all expert witnesses the prosecution intends to call at trial, along with each expert's qualifications, the subject and a description of his or her contemplated testimony, and his or her report.



This request exceeds, in part, the scope of article 39.14(b), which requires only the disclosure of the names and addresses of persons that the party may call to testify under Rules 702-705, and permits the court to order the disclosure of facts and data that underlie an expert's opinion before that witness testifies to his opinion.

Defendant's requests B.3 and B.6 sought

The substance of all oral confessions, admissions and statements made by Defendant to the state in connection with this case, which were not electronically recorded.



All statements of a nature as would be arguably admissible as a "res gestae" statement, spontaneous statement, or other utterance which the State intends to introduce in its case in chief, either during the guilt/innocence stage, or during he punishment stage.



According to Relator, documents containing these types of statements do not exist and would require the State to create a document that is not already in its possession. Article 39.14 is specifically limited to the discovery of pre-existing documents and tangible items that are in the State's possession.

Defendant's request F.6 sought

The location from which each piece of physical evidence was found, the time it was found, and the name of the person who found it.



This request is not targeted to the production of a tangible item that is in the State's possession, and it is not within the scope of article 39.14. This request would also require the State to create a document that does not currently exist.

We conclude that Respondent has exceeded her authority under article 39.14 by granting the defendant's requests A.2, B.3, B.6, and F.6 in their current form and requiring the State to create documents that currently do not exist or are not within its possession.

We assume that the Respondent will modify the present discovery order to conform with the dictates of article 39.14. The writ of mandamus will issue only if she refuses to do so.

IT IS SO ORDERED THIS THE 20th DAY OF JUNE, 2007.

Do Not Publish


1. Other statutes or rules may, of course, require the State to create a written response to a timely request for notice if it intends to offer certain evidence at trial.

AndreaW:

I thought that paragraph was rather mysterious as well. It implies that had the DA's Office had a no-strings-attached open file policy, the defense would be hard put to establish "good cause" for further discovery. But because they do require a quid pro quo from the defense, namely that they not file discovery motions, the def. can show "good cause" for discovery motions.

But it then goes on to limit what can be ordered. It can't order witness statements, or the investigator's report, or file memos. And it can't order "discovery" that would require the state to produce a report for the defense. In most cases, all that is left to be ordered is viewing physical evidence, and photos, the magistrate's warning, maybe. Pretty thin pickings.

Is that how y'all read it?

The way I read the "good cause" part of the opinion, the Court was saying that foregoing ALL discovery in exchange for viewing the FILE could give the defense good cause for requesting and the trial court good cause for ordering discovery. An example might be a motion to examine / test physical evidence. This is arguably a discovery motion that would be forfeited if the defense chose to avail itself of the open file policy. Since there is a colorable claim that this testing (e.g. ballistics) could not be conducted under the open file policy, the defense would have to refuse the open file opportunity OR forego testing.

On another note, I think to call this giving the prosecution "nearly everything they asked for" is not exactly accurate. The Court is giving the trial judge the trial court plenty to work with - like the "docket control" language regardless of a trial setting. So now the trial judge can start ordering the state to provide discovery (except for the categories set out in the opinion) within 5 days of indictment, for example.

The State has filed a motion for publication of the opinion. In my estimation, the essential and clear holdings in the opinion are as follows:

Where a trial judge enters an order for discovery which exceeds her authority under art. 39.14, CCP, the Court of Criminal Appeals will act to reverse that abuse of discretion

The methodology for producing discovery materials set forth in art. 39.14 must be followed; there is no authority to order the State to copy documents and provide those copies to a defendant

There is no authority granted by art. 39.14 for the court to order the State to create a document it does not already have (e.g., in order to provide additional information about the case as might be contained in the State's work product)

Whether the motion to publish is granted or not, I would hope we can all count on the correctness of those holdings

Does anyone have a cite to use that shows that the judge cannot order the State to allow the defense to use the State's only copy of evidence and enter it into the record (in particular, a video during a suppression hearing)?

We have a recurring issue with the judge and defense expecting us to allow the use of our video during suppression hearings, which puts us in the no-win situation if the defense plays it without actually entering it. This is of course more convenient if the suppression is denied, and we just get our video back. However, because we're never sure of the outcome, if we insist that our own copy be entered into evidence to support our case on appeal, it just causes more work for.....you guessed it, me!

I'm going to try to address this with some discovery discussions with attorneys, which will probably take care of most of it....but I would like a case to hand to the judge the next time he orders us to go get our copy that we don't plan to enter during the hearing so that the defense may play it and may or may not actually enter it.

The case above that came out this summer is great, but the judge is not ordering us to make a copy and provide to the defense (we'd be happy to do that without an order and with a little notice)--he's ordering us to provide physical access to ours....which then gets entered into evidence. And it's at suppression rather than trial which seems problematic for the request to be valid as well.

I'm not clear on the problem. If the tape is relevant to the suppression hearing, don't you need to enter it into evidence? If it is not entered into evidence for at least the pretrial record, then why is it being played for the judge?

What alternative does the defendant have at a pretrial suppression other than to ask the court to look at the tape?

Why not have a copy made, just in case, since you know this is going to be a problem? You'd only have to make the extra copy for those cases in which a suppression hearing is requested. Also, if you introduce the original, I think you're allowed to request it back, but if the defense introduces it, it's their exhibit and I'm not too sure about whether you'd be entitled to keep it (although you could check it out of the clerk's office and make a copy from the admitted exhibit). I also would think that the court should not consider an exhibit that has not been admitted into evidence at the hearing, so why is it being played before it's admitted?

I don't know why the defense plays the video and doesn't offer it. The judge watches it, or it's referred to as evidence, but is not actually offered. I have usually just sat back and not worried about it because I want my video back and if it's not entered I can just take it. But then one day I had evidence suppressed that completely shocked me....subject of a different post....and then there is no video to show the appellate court what the judge viewed / heard / didn't hear. Lesson learned, so now I am making sure it's entered. And then the defense got a free copy to use at suppression without paying the copying fees.

The alternative I am hoping for is the defense requests discovery ahead of the hearing, pays for the copying, and enters in their own copy. Usually, the video does not even help the defense, but they just play it to get a crack at crossing the officer and see what shakes out--so my guess is that's why the hearing is happening in the first place.

We charge copying fees and I am guessing that the defense is wanting to avoid the copying fees by using my copy. So I like the idea of having the extras ready at the hearing. I have thought of that also. So how can I make the defense pay for that copy after the fact--after they have already used it? We have a tight pool of defense attorneys, none of which like to pay for the video copies. I don't mind making the copies, or even bringing them for the hearing--but I think it's only fair that the defendant pay for the extra copies.

The tape in question belongs to the State. The court can, upon a finding of good cause, order it produced for inspection and copying by a defendant (at their expense). The court cannot properly order the original be turned over to a defendant for any other purpose (e.g., to use the original as evidence at a hearing). But, the only means of challenging void pretrial orders is by mandamus. And, take my word for it, that is not a pleasant experience. But, perhaps some of the caselaw I cited in the petition we filed on this topic may help. See Mandamus Petition

[This message was edited by Martin Peterson on 02-05-08 at .]