Our courts use a standard pretrial Discovery Order which closely tracks C.C.P 39.14, thereby giving every defendant pretty much everything to which they will be entitled. I have a recurring problem with a couple of smart&%$ defense lawyers that file Open Records Requests which ask for the same things they would get pursuant to a Standard Discovery Order, PLUS things to which they know they are NOT entitled.

How can I stick a fork in this? It's a royal pain to have to deal with it over and over!

I don't know the answer, but we have the same problem here.

Check out article 1.052, Code of Criminal Procedure. Sanctions may be imposed by the trial court on an attorney who files a groundless motion in bad faith and for an improper purpose.

Furthermore, repeated violation should justify a grievance.

Thanks for the suggestion, I will try a motion for sanctions. Probably won't get it the first time, but, it ought to get the judges' and attorneys' attention.

-Neel

I had the same problem with a particular defense attorney, so I closed my files to her. Didn't make my life any easier, but certainly didn't make it any harder. Except I have to listen to her scream bloody murder about how mistreated she is. She won't accept informal discovery anyway, so when I'm busy preparing discovery compliance packets for her and asking for AG's opinions on open records request, I console myself by thinking how mad she is that I closed my files.

Ok, maybe it's not the answer for everyone, but it works for me. :-)

I think discovery motions and orders are a real bore. To avoid that tedium, our office has a closed file policy. If a def. atty. agrees to waive discovery--including pre-trial suppression hearings (unless we agree it might be useful)and R404(b) stuff, then we give him a copy of the offense rpt., along with copies of statements, etc. 99.99% of the def. attys waive discovery and take the offense rept.

The advantage to the def. is that they get the offense rept., which is otherwise outside discovery--the court can't order release of an offense rept. And the offense rept. is usually where all the meat is. The advantage to us is we don't waste a lot of time arguing about discovery and having to comply with discovery orders. Also, since most pleas are "sold" by the def. atty. to the crook, the more info he has to rebut the nonsense his client feeds him the better.

This policy seems to be agreeable to virtually all of our def. attys. We haven't had anyone try to use the Open Records Act to get discovery. If they did, Holmes v. Morales, 924 SW2d 920 says the Open Records Act does not apply to prosecutor's files.

Terry, I love the idea of doing things amicably, informally, and would much prefer doing business that way, BUT- I've gotten burned a couple of times by allowing the defense lawyer to have the offense report- when we actually do go to trial and the defense witnesses *coincidentally* (wink) just happen to have a ready explanation for each of the incriminating details in the report. It's sure nice to be able to have a little something held back in reserve, usually to impeach. I know they get it anyway during trial, but, that's usually not enough time for them to concoct a good story on they fly.

Who would agree to a mandatory open file law under the following conditions:

Before discovery begins, defendant must put down in writing his version of the offense. The document is sealed and opened only after the State rests its case. The document is available for impeachment and any perjury trial.

Maybe statutorily required notice of certain defenses, i.e. alibi, self defense, necessity, sudden passion, prior to the opening of the State's file.

I think JB's version would survive Fifth Amendment challenge because the defendant is offered an incentive to make the statement and it serves a purpose other than collecting evidence. See McKune v. Lile, No. 00-1187 (U.S. June 10, 2002).

It is constitutional also because the defendant is not put at any risk, so long as he tells the truth (in the pretrial affidavit and during trial).

That's fiendishly clever!!! I would absolutely agree to open files on that condition. That would solve lots of problems, no matter which way a defendant chose to go. One hitch, I suppose you'd have to collect and seal statements from ALL prospective defense witnesses, not just the defendant... But, there's nothing to prevent a defense attorney from collecting those secretly, and sealing them, before giving them to the court.

It's wonderful when someone ELSE has to make a painful choice.

How about at a bare minimum, just give us a witnesses list at some time to be determined before trial. That would be a good starting point--nothing complicated.