TDCAA Community
New Discovery statute SB 1611

This topic can be found at:

May 30, 2013, 08:10
David Newell
New Discovery statute SB 1611
Originally posted by John.Wilkerson:
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.

May 30, 2013, 08:37
As usual, the Newell-meister is the smartest guys in the room, along with JW.
May 30, 2013, 10:58
Terry Breen
There are two sides to this bill?

The downsides: 1) It makes using CIs impossible, resulting in fewer crimes being solved, resulting in more problems and danger to the community. 2) It creates a right for the defendant for information that does not help the innocent, only the guilty, and creates enough ambiguity for judges to suppress valuable incriminating evidence, thus degrading our trials. There will be more hung juries, and more acquittals of guilty defendants as a result of this bill. 3) It requires a lot of extra work just to do a simple guilty plea. There is the real possibility that failure to list the evidence turned over to the defendant will cause that conviction to be subject to a later collateral attack rendering it useless for enhancement purposes. If this is the case, expect a lot of chronic DWIs and girl friend beaters to never make it to District Court.

The up side: There are none. Exactly zero. There have been several posts on this thread claiming that it will protect the innocent defendant, and in fact, that is what Rob Kepple testified to. The trouble with those assertions is that they have no facts to support their claims; they are just bald allegations.

Innocent defendants don't need to see the incriminating evidence, they need to see the exculpatory and mitigating evidence, which, according to the Michael Morton Court of Inquiry, was deliberately hidden from his lawyer, and from the trial judge, even when he was ordered by the court to turn it over. Moreover, even if showing innocent defendants the State's incriminating evidence did somehow help them have a fairer trial (there is no evidence this is true)the fact is that over 99.4% of the county and district attys. offices in Texas already have an Open File Policy.

SB 1611 is an hysterical, irrational reaction to a tragic miscarriage of justice. Instead of improving our criminal justice system, SB 1611 will actually result in more miscarriages of justice, will make many investigations impossible, and it will increase costs--all this and it will not provide one iota more protection for the innocent defendant than what is the law now. And all of this was accomplished with the enthusiastic support of the leadership of the TDCAA. That should be a big deal.
May 30, 2013, 11:57
Brody V. Burks
You're tilting at windmills here, Terry. At this point it doesn't matter one hot damn whether your criticisms are true or not. It's not a bill any more. It's law. The only thing I really care about at this point is complying with the law, protecting my judgments, and putting bad guys in jail.

On that note- is anyone using a high-speed document scanning solution that they can recommend? We're not going to electronic case submission anytime soon, but it would be significantly easier on us from this end if we can effectively digitize our file at some point in the discovery process.
May 30, 2013, 13:43
I use the Fujitsu ScanSnap iX500. We are not digital, and it probably isn't a solution for transitioning an entire office -- but it is fast and easy and it also comes with Adobe Acrobat, so you can edit your scans in pdf format. Here is a link to amazon.
May 30, 2013, 14:26
I think the identity of a CI will still be protected by TRE 508 and the same exceptions to that Rule will continue to apply. The new law applies only to objects and tangible things. Law enforcement interaction with CI’s (at least in my county) are based solely on oral communications. Our investigators don’t name CI’s in their reports, and they don’t take written statements from them. Information from CI’s is typically used only to establish probable cause for a search warrant, and I’ve never encountered a situation where a CI turned out to be a material witness.

The law also clearly states that “…rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state.” That language seems to carve out an exception for any {unwise} written communications with CI’s (and UC’s!!!).

So, what’s the fuss? What portion of the new law is applicable to oral communications between law enforcement and CI’s? What additional duties of disclosure of information relating to a CI does this law impose on the State beyond what Brady and TRE 508 already require? I don’t see any.
May 31, 2013, 09:59
Terry Breen

As long as police never reduce a CI's information to writing and they never record the CI, his incriminating info is outside of this statute. In Wharton, that might work. In other jurisdictions they often debrief CI's on tape. Most places they summarize what a CI has told them. DPS has an elaborate system for keeping up with CI's and it is not just kept in their heads.

The State can ask for relief in a Rule 508 hearing. Most judges will probably go along, but there will be dumb judges and bloody-minded judges who will not.

Even under the best of circumstances, where the judge allows the State to keep the CI confidential, the defendant now knows there is a CI providing info about him, and sometimes, that's all he needs to know.

Moreover, under this best case scenario, the prosecutor has to spend a considerable amount of time preparing for a hearing, and having a hearing involving the judge and court personnel-- none of which we have to do now. Remember, this bill was sold as a way to increase efficiency, and to cut costs.

The act does all this without adding a scintilla of protection for the innocent defendant. What a deal. And it was done with the enthusiastic backing of the leadership of TDCAA, who obviously did not bother to even familiarize themselves with the bill, the Association's own report on exonerations, or the court of inquiry's evidence on the Michael Morton case.

I have never known of the TDCAA taking a stand on any bill before. To change that policy, and then do it for a bill that is destructive to the cause of justice, harms the credibility of the Association. I think that is a Big Deal.
May 31, 2013, 11:06

"TDCAA" did not testify in favor of SB1611. TDCAA does not testify against or in favor of any bill. Rob and Shannon often serve as resource witnesses. At the very beginning of Rob's testimony he made it clear that he was testifying neutrally.

TDCAA sent out legislative updates via fax or email to every elected prosecutor every Friday of this legislative session. Almost every one of those updates included a discussion of discovery and the different bills that had been filed. Every time discovery was mentioned, Rob’s name and email address were given along with a suggestion that you contact him if you wanted to be involved in the process. Every elected prosecutor received these updates.

As SB1611 moved through the process, the board called a special meeting by telephone to discuss our position and to form a working group. Everyone was encouraged to participate. Rob Kepple, as TDCAA Executive Director, facilitated these volunteers. That group of prosecutors eventually worked very hard to negotiate what was a very troubling bill (look at the original text of SB1611) into one that we thought was fair. Before that bill was voted on in the Senate Criminal Justice Committee there was a full in-person board meeting of TDCAA in Austin and the bill was discussed in detail. The main concern was the protection of victim and witness information. Bexar County and Brazoria County testified against the bill in the Senate Committee based on that issue. No one else testified against the bill at that hearing. Several elected prosecutors testified in favor of the bill with a reservation that we needed additional protections for witness and victim information.

Thanks to the hard work of the Bexar and Brazoria DAs, additional language was added regarding the disclosure of victim and witness information to third parties. This language on third party disclosures is some of the strictest in the country. Go check other state discovery statutes yourself if you want confirmation of that fact. A large percentage of the states have absolutely no statutory restrictions on what a defense attorney can do with the information she receives in discovery.

After this additional language was added, the bill was agreed upon by the defense bar and all of the volunteer prosecutors that had worked on discovery for weeks. When Rob testified before the House Committee he simply informed them of the process that had been undertaken and nothing more.

This group of volunteer prosecutors spent many long days and late nights hammering out SB1611. Rob Kepple worked tirelessly for weeks with this group and he should be commended for his hard work and dedication to prosecutors in Texas.
May 31, 2013, 14:42
Ted Hake
While I have found this thread interesting, the fact that S.B. 1611 passed the Legislature and was signed by Governor Perry is hardly a surprise to me. At virtually every Legilative Update over my long career as a prosecutor, the T.D.C.A.A. staff tells us that a new law was the result of some high profile situation somewhere in the state and also often further points out that the new law was an overreaction to the situation in question. S.B. 1611, a reaction to the Michael Morton case which not not have affected the result in that case, is no different.

That being said, however, I agree with some of the comments made by others. Debate over the wisdom of S.B. 1611 is futile at this point. It has been passed by the Legislature and signed by Governor Perry and will become law effective January 1, 2014. Accordingly, at this point, we should not be debating the wisdom of the bill, but rather should be discussing the most practical and cost effective methods of complying with the disclosure requirements contained in S.B. 1611.

Moreover, although S.B. 1611 is not effective until January 1, 2014, implimenting procedures to comply with its requirements will, in many counties, impose additional costs, both in terms of equipment and manpower. Given the fact that we are governmental entities which must deal with factors like budgets, biddings, and hiring requirements, there is already an urgent need to start to develop plans for implimentation of S.B. 1611 which take into account the increased costs it will inevitably require us to incur.
May 31, 2013, 15:12
I am in a small jurisdiction and we scan all of our files into a shared drive. We use a Fujitsu ScanSnap 6010N. It is a great machine and even makes excellent color copies of photos. We save the case in a folder under the name of the defendant. We then print a copy of the screen that shows a list of the items that have been scanned and we provide a copy of the list and a CD to the defense counsel. We have done this for some time and I think it will meet the requirements of providing a list under the statute.

Also, just as most defendants waive a jury trial, waive the right to self incrimination, etc., it is likely that the vast majority of defendant's will waive formal discovery when they plead guilty. I will keep my open file policy (continue to provide electronic copies upon request) and anticipate that most people will waive discovery. If they don't, I'll print off the scanned items and give them a cd.
May 31, 2013, 17:54
Terry Breen

If you re-read my first post, you'll see I quoted Kepple verbatim and at length from his testimony before the House Judiciary Committee. He did indeed start off by saying he was "neutral," and thereafter every thing he said was in favor of the bill. He was questioned about my proposed amendments, and he said the prosecutors had looked at this and and in effect solved it by going in a different direction. The only conclusion one could draw from his testimony was that the Association leadership was on-board with this bill and there was nothing wrong with it.

The House sponsor of the bill pointed out that all of the stakeholders were in favor of this bill, and he effectively agreed with her. The distinct impression left was that prosecutors think this is a necessary bill and a good bill.

If the Association was in fact neutral, he more accurately could have said that the prosecutors who worked on the bill felt that they had no choice but to get rid of as much noxious stuff in the original bill as they could, and then swallow hard and accept this better choice between two evils. He also could have acknowledged that those prosecutors who were involved in the negotiations are a small number and do not represent all prosecutors. He also could have acknowledged that the problems I identified were bonofide, serious problems with this bill. That would have been a neutral and accurate summary of how the bill was negotiated, the problems with the bill, and the degree of support for the bill.

I phoned Rob about SB 1611 early in the session and expressed my office's problems with the bill. I was left with the distinct impression he was going to keep me in the loop in the negotiations concerning this bill. I never heard from him again. Which is a shame. It would have been useful if there had been at least one prosecutor involved in the negotiations who had 1) read up on the Michael Morton case (& therefore knew it was caused by a rogue prosecutor, not a gap in discovery law), and, 2) had read the TDCAA's report "Setting the Record Straight," and therefore knew that over 99.4% of the prosecutors' offices in Texas have an open file policy.
May 31, 2013, 22:52
Shannon Edmonds
This has been a fascinating discussion, but I am shutting it down because this is an educational forum, not a bitch-about-the-legislature forum.

If someone wants to start other threads on SB 1611 implementation or interpretation--as Ted and others suggest--then have at it. If anyone wants to rehash the legislative session or otherwise engage in Monday-morning quarterbacking, do it elsewhere on the Internet, not on the TDCAA user forums.