Moody to Present One-Way Discovery Measure

After a group of criminal defense lawyers’ collective hackles were raised over a bill that would require them to show prosecutors information in their clients’ files, state Rep. Joe Moody, D-El Paso, plans to present a new version of the measure that requires only prosecutors to disclose information in criminal trials.

“Efforts to reform discovery have always died in the past because no one is willing to give,” said Ellic Sahualla, Moody’s chief of staff and a former El Paso County prosecutor who worked alongside Moody in the district attorney's office. “This is still a huge win for justice.” 

Moody will present the new version Tuesday to the House Criminal Jurisprudence Committee.

The measure, House Bill 1426, would require prosecutors to turn over offense reports and witness statements. It would also require them to show defense lawyers their clients’ full criminal history. The measure would codify the so-called Brady requirements named after the 1963 U.S. Supreme Court ruling in Brady v. Maryland that obligates prosecutors to turn over to defendants any information that could support their claims of innocence. Moody’s bill would also create a paper trail in which defense lawyers and prosecutors make a list of evidence that has been turned over.

In the wake of exoneration cases in which prosecutors allegedly withheld critical evidence, demands have grown for new laws that require both district attorneys and defense lawyers to share their files. Nearly all other states have laws that require some form of reciprocal discovery. And Moody, along with state Rep. Ruth Jones McClendon, D-San Antonio, and state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, have filed proposals that would strengthen discovery requirements in Texas.

Proponents argue that such measures would prevent wrongful convictions like that of Michael Morton, who was exonerated in 2011 after spending nearly 25 years in prison for his wife’s murder. DNA evidence cleared him and linked Mark Alan Norwood, a 58-year-old former Bastrop dishwasher, to the murder. Norwood is on trial in San Angelo, and a verdict in his case is expected this week.

Morton’s lawyers allege that the district attorney in his case deliberately kept information from defense lawyers that could have prevented his conviction and led to the real killer. The prosecutor who oversaw the wrongful conviction, Williamson County state district Judge Ken Anderson, is facing both criminal and civil action for his role in the case. He has denied any wrongdoing.

In past legislative sessions, some criminal defense lawyers have led the fight against reciprocal discovery proposals. The Texas Criminal Defense Lawyers Association says requiring defense lawyers to disclose information is unnecessary, would jeopardize their clients’ rights and do nothing to prevent tragedies like Morton’s. It is the prosecution — not the defense — that bears the burden of proof in criminal cases, they argue.

“Our position is that reciprocal discovery is just an improper thing for defense lawyers to have to provide,” said incoming TCDLA president Bobby Mims.

Most Texas prosecutors, Mims added, already have some kind of open file policy that allows defense lawyers access to evidence against their clients.

In response to defense lawyers’ concerns, Sahualla said, prosecutors agreed to support a discovery bill without reciprocal requirements for criminal defense lawyers.

Rob Kepple, executive director of the Texas District and County Attorneys Association, said that prosecutors decided to support the discovery bill because it was “the right thing to do.” 

“A reciprocal statute would probably be helpful in this deal,” he said. “But it was pretty clear that wasn’t going to happen.”

The new version of Moody's bill, however, does not include sanctions for prosecutors who violate the discovery provisions. Sahualla explained that under existing law prosecutors already face sanctions in the courtroom. Judges can hold them in contempt or prevent them from using certain items of evidence. 

Thomas Ratliff, a lobbyist who is working on legislation supported by Morton, said that efforts were also underway to negotiate similar changes to Senate Bill 1611 by Ellis and Duncan, which currently includes a requirement for reciprocal discovery. The Senate bill is also scheduled for a hearing Tuesday in the Criminal Justice Committee.