If 90% of the cases are court appointed, and you allow the defense attorney to review the file and make notes, but not to copy, how long does the file review take? Much longer than if the defense attorney is just given the copies. Since the county is paying the defense attorney for his time, it would seem that providing copies as opposed to requiring note taking would actually save the county $$. That's why I would always make copies of whatever pages the defense attorney asked for (with obvious exceptions like CCH's). Not every page in the whole file - because there is frequently duplication (2 officers in the same car make a DWI stop, both write reports), and defense attorneys usually did not want the standard offense report cover sheets and "other persons" printouts that seem to take page after page. Copying, especially if it eliminates (or at least reduces) paying appointed attorneys for filing discovery motions may SAVE the county $$. Big picture.

Don't know how it works in other Utopian counties but for some strange reason, all the money our office SAVES the county by facilitating the prompt disposition of cases, moving the jail cases as quickly as possible, etc., never seems to find its way back into OUR BUDGET at the beginning of the next fiscal year.

Instead, our county administration always seems to look for ways to give us less while looking with envy at our hot check fund and asset forfeiture fund.

Ideally, Larry, I guess the point would be that by increasing our copy costs and my secretary's work load, indigent defense costs would be reduced and more county money would be available thereby potentially increasing the size of our "slice of the pie." The cynic in me, however, just does not see that happening.

Our office has a closed file policy. If the def. atty. is willing to waive formal discovery, and all notice, and is agreeable to not having a pre-trial suppression hearing (unless we agree it would be useful) then we provide them with a copy of the police report, witness reports, copies of photos we have in our file, and we show them their client's rap sheet.

We require the police, when filing cases, to bring an extra copy of their report for each defendant in the case, which is later provided to the defense attys.

We have not had a pre-trial suppression hearing in years. 99.9% of the time the defense attys waive notice and discovery, and we give them the report. Our local attys. are very happy with this arrangement.

But it depends on our office having something to bargain with. Right now, the def. is not entitled to see the offense report pre-trial. In fact, the court cannot even order us to release the report. If the def. suddenly becomes entitled to what we give away in this bargain, we will have to be subjected to pre-trial discovery hassles, which will not be used to really learn what evidence the State has, but will be used to create booby-traps for us at trial.

By the way, this bill is coming up for discussion in the House crim. just. committee on Tues. 3 May. If you can possibly make it to Austin, you need to go, and let them know how you feel about this bill. This bill, if it becomes law, will drastically change the way we do business.

The criminal defense bar in Tarrant County purchases and maintains two copiers located at the courhouse. One of the coordinators is kind enough to manage the sale of copy cards. The catch? One must be a member of the local criminal bar. Oh, the travails of the out of town attorney everywhere.

Sounds like it gets rid of the Gaskins rule in favor of (much) earlier disclosure. And we get little in return.

What I really see is a rising tide of ineffective assistance of counsel claims resulting from the exclusion of a witness at trial due to the defense attorney's failure to comply with SB560.

Hold that thought! When this came up, some prosecutors testified that we really didn't need this, but if the Legislature wanted to do mutual discovery, then we needed a whole lot more, like witness lists, notice of alibi, and the like.

I think a lot of people liked that idea, so if this continues to move, watch for a true mutual discovery bill to take shape....

Yeah but 60 days before trial is pretty harsh.

We typically have our cases set for jury trial about three weeks out from the initial appearance after indictment. I can see the "as soon as practicable" language tightening the discovery time frame down to about 5-7 days in most cases.

We, too, have our cases set about a month to 6 weeks out. I know the "as soon as practical" language takes care of that, so why do we need the 60 day requirement at all?

We believe the bill reported from the committee is no longer in play. Call TDCAA and ask for a faxed copy of the new version of SB 560 if you want to see it.

The Senate voted out a mutual discovery bill this morning with about 5 whole minutes of discussion. Senator Carmona stated (I actually watched this) that this bill contained the language agreed upon by prosecutors and defense. I've read one of the proposed latest versions and I hated it. You had better get involved if you want any say in whether this bill gets passed into law.

Here's a link to the version of the bill passed by the senate: SB 560 engrossed version

David, take a look at 39.14(1)(a)(2). Offense reports are specifically covered along with grand jury testimony (although "recorded proceedings of a grand jury" are excepted from disclosure in Section 3 ... ???).

There will be a good bit of litigation concerning compliance with this statute and such things as how the State is to know whether a defendant believed a certain person was a peace officer and what are agencies of the State and what "criminal history" means. One interesting thing to me is the exception for matter "privileged under an express statutory provision,the Texas Constitution, or the United States Constitution". I guess the privilege under Rule 502(b)(2) was intentionally excluded from this provision, because most everything the defendant is required to disclose would likely have been something which "came to the knowledge of his attorney" by reason of the attorney-client relationship (meaning the exception would swallow the rule). Someone said not to expect too much from this session on the criminal justice scene since attention would be diverted elsewhere, but in my opinion it has been a very prolific session- this bill just being one example of a major change.

This bill is set for a public hearing in the House Crim. Just. committee Tues. 3 May. Shannon told me he expects it won't be reached until late afternoon--but then, even Shannon can't predict the future. For more info, call the TDCAA office and have them fax or email the latest version of this bill.

If you care about protecting prosecution from oppressive discovery, and technical booby-traps at trial, you need to make time and come testify. As they say in the ads on TV, "This is big. This is really big." And that's a fact.

I believe the following problems should be expressed to the Committee:

1) The bill contradicts much legislation designed to protect victims, particularly child victims, by requiring the release of confidential, personal information. The punitive alternative for the victim is to submit (apparently at my demand) to a personal interview by the defendant. This is contrary, for example, to the model created by Children's Advocacy Centers, which make the child videotape of the interview the property of the prosecutor for the protection of the child.

2) The bill requires the State to give notice of rebuttal witnesses. Even if we did receive notice of a defense and a list of witnesses (which we won't), that does not mean we will know who we will call in rebuttal until having heard the defense case. Many court cases point out the impossibility of knowing that information before trial.

3) The bill imposes a huge fiscal note on counties with no provisions for payment by the defense or new employees to handle the new duties.

4) As written, the defense will not hand over anything, as they will claim it is all exempted as work product, in violation of attorney client privilege or in violation of the defendant's right against self-incrimination. That leaves nothing that looks like mutual discovery.

5) The current law already guarantees the defense receives all exculpatory and mitigating evidence. Nothing, in fact, is required by statute to accomplish that goal, as it is a constitutional requirement. This bill merely creates additional procedural hurdles to trip the State.

Thanks for all of the responses! I've made up my mind. John, those bullet points were quite helpful in formulating a letter to my reps.

The bill bypasses the work done by many good lawyers in writing the rules of evidence, that already dictate how and when much discovery takes place. Pursuant to Rule 612, offense reports, witness statements and other reports must be made available for cross-examination of a witness. But that discovery takes place during a trial, regulated by a judge and then is promptly returned to the prosecutor who can keep it safe from misuse. Who has shown that rule to be insufficient to protect the rights of a defendant?

Some ideas just won't go away.

Here's a link to a good article concerning a hot debate over Denton County's new open-file policy and a resulting retaliation case it has spawned:

http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1200650733033

Here's the part that caught my eye, of course:

"In fact, that fear [of witness retaliation] by some DAs is what put the brakes on a proposed state law that would have required all DAs' offices in Texas to have genuine open-file policies, says Barbara Salyers, general counsel to state Sen. John Carona, R-Dallas. Carona has tried to pass such a bill during the 2005 and 2007 legislative sessions, but it didn't make it because some prosecutors opposed it, she says.

"That was one of the issues that was debated. And we reached a compromise in that bill. But it didn't pass," Salyers says of S.B. 643, which died during the 2007 session. "The final version required the DA to turn that information over only to the defendant's lawyer. And it also left what actually had to be produced [by a prosecutor] within the discretion of the court."

Carona plans to introduce the bill again in the 2009 legislative session, Salyers says."

* * *

Leaving aside for now any disputes over what the bill did or did not do, or whether a "compromise" can be reached when one side has not agreed to it (welcome to the legislative process!), it is clear that such legislation could put a stop to practices like this:

"Last year, an attorney had a videotape that he was not supposed to show to anyone but his client. And he had given it to the defendant's family," Montague says. "And so we cut him off from anything for three or four months, and it hurt his practice quite a bit."

"The open-file policy is a privilege. And if the defense lawyers don't want to play by the . . . [rules], then don't play," Montague says. "When there is a violation we cut them off. And you can't competitively practice here without looking at the state's file."

* * *

If you have an open-file policy of one type or another, does continuing legislative interest in this topic concern you? If so, why?

Note: this thread combines posts from two previous threads, so it may not read chronologically

[This message was edited by Shannon Edmonds on 01-22-08 at .]