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Report: Open Discovery Policies Could Thwart Wrongful Convictions

Widely variable discovery practices in Texas makes access to justice dependent upon where a defendant is charged, according to a report released Wednesday, giving weight to bills that would create uniform discovery procedures.

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The amount of evidence that Texans accused of crimes can get from prosecutors varies across the state, leading to inequities in the way justice is meted out, according to a report released Wednesday, which suggests that requiring more transparency could prevent wrongful convictions.

Texas Defender Service, which represents death row inmates, and Texas Appleseed, a nonprofit that advocates for social justice, researched discovery practices in 40 Texas counties. They found that the wide variation in discovery practices among prosecutors makes access to justice dependent upon the jurisdiction in which the defendant is charged. Those findings, said Rebecca Bernhardt, a Texas Defender Service spokeswoman, give weight to legislation filed in both the House and Senate that would create uniform discovery procedures and require both prosecutors and defense lawyers to share more information in criminal trials.

“We hope that lawmakers get an understanding of the status quo and understand the problems that exist under our current, outdated discovery statute,” Bernhardt said.

Rob Kepple, executive director of the Texas District and County Attorneys Association and a former prosecutor, said he agreed with the conclusions of the report.

“A good open file discovery system could help prevent some problems,” Kepple said. “I think it’s a pretty good report.” 

Efforts to reform discovery laws in Texas are not new but have picked up steam since the 2011 exoneration of Michael Morton. He spent nearly 25 years in prison for his wife’s murder before DNA evidence revealed that he was innocent and led to the arrest of another man who is awaiting trial for the crime. 

Morton’s lawyers allege that the prosecutor who secured his wrongful conviction deliberately withheld key evidence that could have prevented the injustice and led to the real killer. A court of inquiry is currently considering whether former prosecutor and current Williamson County state District Judge Ken Anderson should face criminal charges for his role in Morton’s case. The State Bar of Texas has also filed a disciplinary case against Anderson, alleging that he deliberately withheld evidence and made false statements to the court during Morton’s 1987 trial.

Anderson has vehemently protested the allegations and argues he did nothing wrong in the case.

Reform advocates say that an open file policy that requires prosecutors to disclose information could prevent tragic ordeals like Morton’s.

“We would like to see a bill that is as strong as possible in terms of opening up and broadly sharing information and evidence that’s in the control of the state,” Bernhardt said. “We think that will prevent wrongful convictions.”

The report concluded that current Texas laws require only that prosecutors follow guidelines that flow from federal case law, such as the 1963 Brady Rule, which mandates that state lawyers give the accused information that supports their claims of innocence. The American Bar Association recommends more detailed disclosure. And defense lawyers in Texas, according to the report, are required to disclose only minimal information.

Researchers also found that discovery rules vary not only from county to county, but sometimes even among the state lawyers in a single prosecutor’s office. While some prosecutors have open file policies that allow defense lawyers access to almost everything except for what the state lawyers produce — like notes and trial strategy — some have conditional open files and others allow each prosecutor within the office discretion over what to show defendants’ lawyers.

Some counties, according to the report, require defendants to waive certain rights before they are allowed access to the prosecutor’s files.

Laws that fail to set a uniform standard for prosecutors, the report said, might increase the likelihood of wrongful convictions, and Brady violations.

Unlike Texas, the report found, 84 percent of states do not require a court order before the state must disclose information to defense lawyers. In Texas, state law requires defense lawyers to file a motion and show good cause for the judge to order the disclosure of evidence.

And, according to the report, nearly every other state requires both sides to share discovery with one another.

The report recommends that lawmakers require automatic discovery so that defense lawyers don’t have to file a motion to obtain evidence against their client. Prosecutors, it recommends, should always turn over police reports, witness statements, expert reports and criminal histories. And the report recommends that defense lawyers should disclose information that does not infringe on the accused person’s constitutional rights to a fair trial and not to implicate themselves. The report further recommends that lawmakers set appropriate deadlines for the release of information and require ongoing disclosure of information as it’s discovered. 

State Rep. Joe Moody, D-El Paso, said the report demonstrates the need for lawmakers to approve House Bill 1426, his proposal to require reciprocal discovery in Texas. State Sen. Rodney Ellis, D-Houston, has filed an identical measure, Senate Bill 91.

“Setting up a fair system isn't about prosecutors or defense attorneys — it's about what's right for those who stand accused,” Moody said in a statement. “Our laws should ensure that the innocent go free and the guilty are brought to justice, and how that works should be the same across Texas.”

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