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Defense Lawyer Group Eschews Discovery Bill

Criminal defense lawyers who have led the fight against reciprocal discovery proposals in Texas are renewing their battle cries. The lawyers say the measure is unnecessary, expensive and wouldn't prevent wrongful convictions.

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Some criminal defense lawyers say a proposal filed last week that aims to end wrongful convictions by requiring both prosecutors and defense lawyers to open their files could bring the criminal justice system to a grinding halt and empower prosecutors. The Texas Criminal Defense Lawyers Association this weekend approved a resolution opposing the legislation.

“The only ones who ought to open their files is the prosecution; they have the burden of proof,” said Bobby Mims, president-elect of the association.

Momentum to pass legislation that requires both district attorneys and defense lawyers to share their files has grown in the wake of wrongful convictions in which prosecutors allegedly withheld critical evidence. Such laws, proponents argue, would prevent convictions like that of Michael Morton, who was exonerated in 2011 after spending nearly 25 years in prison for his wife’s murder. His lawyers allege that the district attorney in Morton’s case deliberately kept information from defense lawyers that could have prevented his conviction and led to the real killer. Morton himself has supported legislation to require open discovery.

Some criminal defense lawyers over the last decade have led the fight against reciprocal discovery proposals in Texas. The association says the measure is unnecessary, would result in a flood of expensive, unneeded paperwork and would give prosecutors too much access to their clients’ information. It is the prosecution — not the defense — that bears the burden of proof in criminal cases, and defense lawyers argue they should not have to reveal their clients’ hands. What’s more, they say the legislation would do nothing to prevent tragedies like Morton’s.

“We have numerous problems in the criminal justice system,” said Keith Hampton, a veteran criminal defense lawyer in Austin. “Discovery is no longer it.”

Senate Bill 1611 by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, would enact uniform discovery requirements in criminal cases across Texas. It would require prosecutors to give defense lawyers evidence in their files including essentially everything except their own notes about strategy. It would require defense lawyers to share evidence as long as it doesn't include their strategy plans or violate the defendant's right against self-incrimination. The measure also spells out that lawyers on both sides would have an ongoing duty as the case continues to reveal information, and it would provide sanctions in cases where the discovery requirements are violated.

“This reform legislation ensures that everyone will operate under the same standards, which will help us avoid some of the crucial errors that have led to too many wrongful convictions in Texas,” Ellis said in an email.

Nearly every other state and the federal government have discovery requirements similar to those outlined in SB 1611. Requiring reciprocal open discovery was a recommendation in the August 2010 report from the Timothy Cole Advisory Panel on Wrongful Convictions. Under current law, prosecutors are required only to divulge basic information about the crime to a defendant's lawyer, and they're only forced to do so if a judge orders it.

Though they are not required to do so, Mims said, most prosecutors in Texas already have some type of open file policy that allows defense lawyers access to evidence against their clients.

Ellis’s legislation, he said, would require expensive and lengthy document production that would drive up the cost to taxpayers who foot the bill for indigent defendants. And he worried that the requirements would inundate lawyers with unnecessary files.

But the biggest worry for defense lawyers, Mims said, is that providing witness lists to prosecutors could lead to witness intimidation.

“The fact that a prosecutor is ethical doesn’t mean his investigators or other police officers are, too,” Mims said.

For all the heartburn it is likely to cause, Mims said, the law would not prevent what happened to Morton from happening to others. No legislation can ever stop a police officer or prosecutor who wants to hide evidence, he said. 

Instead, he said, the TCDLA strongly favors Senate Bill 825, a measure by state Sen. John Whitmire, D-Houston, which will be heard Tuesday in the Senate Criminal Justice Committee, which the senator leads. The measure would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal, which Morton also supports, would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison.  

The association also supports House Bill 166 by state Rep. Ruth Jones McClendon, D-San Antonio, which would create an innocence commission to examine wrongful conviction cases and recommend improvements to the criminal justice system to prevent them in the future.

Rebecca Bernhardt, spokeswoman for the Texas Defender Service, which represents death row inmates, helped draft the legislation. Her organization is among the defense groups that support reciprocal discovery. Morton’s conviction, she said, could have conceivably been prevented had the law required the prosecutor to turn over a transcript in his file that revealed that his 3-year-old son had seen someone else murder his mother. The prosecutor would also have been required to turn over reports from neighbors who said they saw a man in a green van who appeared to be casing the Morton home. 

And if the prosecutor didn’t turn over that information, the new law would leave no questions — as exist now in the Morton case — about whether he was legally obligated to do so.

“In all sorts of different ways, this bill takes away the gray areas that have been exposed by the Morton case,” Bernhardt said. “Cheating is always possible, but the idea is to create a structure that decreases the likelihood.”

Polk County District Attorney Lee Hon, chairman of the Texas District and County Attorneys Association, said the time has come for a reciprocal discovery law. For prosecutors, access to the defense file allows them to prepare adequately for the trial, and to potentially learn much earlier in the process if the defendant they have charged has been wrongly accused.

“If the defense attorney has something in their file that suggests we got it wrong, wouldn’t it be better know about that in a timely fashion so that the prosecutor can be directed toward the actual person who did it?” he asked.

Tribune reporter Maurice Chammah contributed to this report.

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