Of course on a felony, it would absolutely be ineffective assistance of counsel not to even request discovery.

I agree, John, that this would happen quite often on a misdemeanor.

I'm still reluctant to state on the record that the defense never requested discovery. Makes me nervous. Mostly for them, not for me.

I don't know that you can say that. Many felonies are on-view offenses--the defendants know what they did and want to cut their losses. In certain other counties with quick intake processes, people can sometimes be paper-ready on new convictions within a few days of arrest. Just because you or I wouldn't want to do it that way doesn't mean it is ineffective.

This message has been edited. Last edited by: JohnR,

One thing to keep in mind for the next few months is that if the offense was committed before January 1, 2014, then the new discovery rules don't apply. The bill says that means if any element of the offense was committed before January 1 discovery is governed by the old 39.14.

Also, one of the mysteries of the new law is the new 39.14(j), which says that at a plea you have to acknowledge everything shared "under this article." But it sure SEEMS like nothing is being shared under the article if it is never timely requested in the first place.

That's how I read it, Jon. The whole law is an "if -- then" proposition. If the "if" doesn't happen, then the "then" isn't triggered.

The idea behind the law was that we evil prosecutors weren't handing over discoverable materials after the defense had requested it.

I doubt there was any testimony regarding discovery that was "at the ready" but was never requested by anyone.

I agree, John.

But having dealt with a fair number of felony appeals and writs myself, I'm certain defendants will try and claim ineffective assistance when their attorneys don't even request discovery under the new law.

I suppose time will tell.

Oh they will Lori. They certainly will. And a blank discovery log will help their argument that their guy was bad.

Would it help to insulate the conviction from a future IAC claim if you put on (or get in) the record a statement by the defense lawyer that his eagerness to plead the case w/o further discovery is a tactical decision? For instance, that his guy says he is guilty and wants this deal now (perhaps before the State finds out what else he did, ha ha)?

Of course, none of this is applicable to Brady material, etc., we're just talking about inculpatory information in the State's file. (That's my disclaimer for any clueless Internet trolls reading this thread.)

Not so much that it is a "tactical decision," but rather that it is an informed decision made after consulting with his client about the case. The best defense counsel would probably cover that during the plea colloquy. There may be many valid reasons to plead to a case quickly. A defendant may be worried about us adding enhancement allegations. He may be worried about charges being upgraded based on new information. He may want to get to TDC and start earning good time at a better rate than he accrues in the county jail. If a judge is worried about such a plea, the judge could admonish the defendant regarding the right to discovery during the plea colloquy. Trolls will be Trolls. Any of them should be welcome to come on down and represent an indigent defendant or two. Maybe they should be given a chance to be "prosecutor for a day" and fight over the copy machine while copying discovery. That way we would have informed Trolling. Anyway, we are doing our best to comply because that is what we need to do, what the law demands we do.

Trolls are just technologically-equipped critics who can be even more acerbic behind the cloak of Internet anonymity. I believe Teddy Roosevelt's thoughts on that ilk still eloquently address the issue today:

"Far better is it to dare mighty things, to win glorious triumphs, even though checkered by failure... than to rank with those poor spirits who neither enjoy nor suffer much, because they live in a gray twilight that knows not victory nor defeat."

FYI - We're using this document with our juvenile cases. I'm hoping it meets the definition of "provide" under 39.14. Basically, we fax this list to the defense attorney (whether or not he/she requests it) to let him / her know what we have available for "inspection, duplication... etc." We get a fax return showing we sent it in case there is an issue later.

If another discoverable item becomes available later on, we fax another letter with that item listed on it.

At plea, we enter our original list(s) into evidence with the plea papers. (Note that there's a place for us to sign and defense to sign.)

For those smaller offices without Net D or Tyler, perhaps something like this would help.

JUV_DISC.docx (50 Kb, 30 downloads) Juvenile Discovery fax

We file the lists with the clerk like the plea papers, and have an approval line for the Court.