Wednesday, October 25, 2006

Lack of discovery means Texas defendants can't know evidence until trial

A lot of folks don't believe this when I tell them, but Texas state law does not require prosecutors to share accusatory evidence with the defendant before trial. Jamie Spencer writing at the Austin Criminal Defense Lawyer has an item on this subject today entitled "Criminal Discovery Rules Allow State to Hide the Ball."

Travis County, he notes, lets defense counsel look at the prosecutors file on misdemeanors, but not for more serious felonies. I agree with most of what he says except this: The information about their case that criminal defendants are entitled to in Texas before trial hardly qualifies as "discovery" in any meaningful sense of the word - certainly not in the same sense civil attorneys get to use discovery in their cases. Spencer writes:
When someone gets arrested in Austin, Texas and comes to see me for help with their case, one of the things they are usually surprised to find out about the system is the length of time it takes to get a copy of the police report – several months for a misdemeanor, sometimes never on a felony.

That’s right: I said sometimes never on a felony – at least until after a witness has testified during trial, and has used the report to refresh his memory.

We are actually fortunate in Travis County that the prosecutors, at least on misdemeanors, are so generous with sharing “their police report” with the defense lawyers. The law in Texas does not require that they do so.

It's a travesty of justice to let anyone go to trial without having first shared the evidence that accuses them. How could anyone prepare a defense?

Spencer may think local lawyers are "fortunate," but the truth is Travis County prosecutors allow access to misdemeanor files to move cases through the system more quickly, hardly out of the goodness of their hearts. If a defendant knows prosecutors have him dead to rights and he can plea out to probation or a short jail sentence, the process works more smoothly for everybody when that information is shared.

For felonies, though, where defendants have a greater liberty interest and should arguably have a greater need to examine the evidence with which they'll be accused with in court, even Travis County doesn't let defendants see that information.

Texas legislation to allow reciprocal discovery (where both prosecutors and defense counsel would enjoy pre-trial discovery rights) passed the Texas Senate unanimously in 2005 but did not get out of the House Criminal Jurisprudence Committee after receiving a public hearing. That committee will have a new chairman in 2007, so maybe the bill will benefit from fresh legs.

This is an idea whose time should have come years ago - like maybe in the reforms after the Salem Witch Trials.

22 comments:

sunray's wench said...

Ahhh, its finally starting to make some sense to me now! And as the legislation didnt make it all the way last time, that tells me there are people in high office in Texas who actually think that biased trials are a GOOD thing .... and you Texans keep them in office....

Kelly Higgins said...

Reciprocal discovery is not a good idea. Requiring a defendant to share information with the prosecution is a severe violation of the 5th Amendment. Please don't write in support of it unless you think the 5th Amendment needs further erosion.

Forcing the state to open its file is a great idea, but not at the expense of reciprocity. I'd much rather work under the present regime than open my file to the state. Criminal defense work, under the adversary system, is not a truth-finding mission. It is a mission of challenging the state's case with every fact and idea available.

Also, Travis County won't provide xerox copies of offense reports, but I have always been able to view reports and take notes, including verbatim transcription. That gets on the nerves of defense guys, but that's the nature of the battle. If you want the information, sharpen your pencil. Or invest in a decent digital recorder.

Is Grits familiar with the Brady requirement that the state provide any exculpatory information in its possession to the defense. Giving this rule some teeth would level the playing field quite satisfactorily. Unfortunately, prosecutors are usually the judges of whether information is exculpatory, and actual judges don't want to take up time reviewing files in camera. Big city courts should establish offices of disinterested lawyers to review prosecutors' files and research Brady material laying elsewhere in the state's possession.

All that is to say, Brady is the benchmark, but without a neutral and detached review of the state's case Brady will never be the important pillar of due process it should be.

Gritsforbreakfast said...

Thanks, Kelly.

Yes, I'm familiar with Brady, though a) as I understand it, it only says prosecutors must share exculpatory, not accusatory evidence, and b) we're under the Texas Court of Criminal Appeals, so it may as well be written in Sanskrit and intepreted by chimps pounding on typewriters.

My personal position on the bill in 2005 (I didn't work on it at all) was that I shared some of your 5th amendment concerns, but it's insane that prosecutors don't share files so I understood the motivation. (The bring your pencil stuff is BS in the 21st century, BTW - much less to pretend they're doing you a favor. What arrogance.)

It was actually the Texas Criminal Defense Lawyers Association, as I recall, pushing the mutual discovery bill. There were exceptions that would let them preserve some theories, etc., before trial, though I don't remember all the details. Take a look at the linked bill text, Kelly, and let me know what specifically you wouldn't like, because the bill got far enough it willl almost certainly come up again. Like physicians, an advocate's first responsibility is to do no harm. Best,

celtictexan said...

Criminal defense work, under the adversary system, is not a truth-finding mission.

Therein lies the problem with the American legal system.

Anonymous said...

Therein lies the problem with the American legal system.

Yeah, those damn Founding Fathers and their adversarial system ... What assholes!

If only someone as smart as CelticTexan had been around to design things!

celtictexan said...

Yeah, those damn Founding Fathers and their adversarial system

The founding fathers are not responsible for todays Judicial system and the high costs associated with it.

As usual you see only what you want to see so I'll shorten the quote so maybe you can get a better grasp.

is not a truth-finding mission

I think if the courts operated on a truth finding basis, rather than adversarial all except the lawyers who have become so very rich would benefit.

Kelly Higgins said...

Celtic, you are unbelieveable. The framers of the constitution certainly intended an adversarial system, like the one they grew up with. We know this because the Bill of Rights lays out the adversarial system in spades. And "the problem with the American legal system" is that too many innocuous things are illegal and are disproportionately punished, thanks to the arrogance, ignorance, cynicism and intellectual laziness of legislators, judges, and voters.

"I think if all the courts operated on a truth finding basis..all except the lawyers who have become so very rich would benefit." Which orifice did you pull this opinion out of, Celtic? What would prevent lawyers from making money under a truth-finding system? We'd get paid just the same, Einstein. You think we are paid more for obscuring the truth? The only difference would be that the state had to pay our fees, because even the most colossal idiot wouldn't pay his own lawyer to rat him out. Way to think things through before you start a sentence, "I think..."

You're entitled to your shallow and platitudinous opinion, and you may thank criminal defense lawyers for ensuring you won't be punished for this or any other assinine opinions you vomit all over a bored audience.

If you want a truth-finding regime, move to Mexico, where your lawyer tells the judge everything he knows, and the judge decides what to do with you, and that's that. I'm sure you'd enjoy Napoleonic justice.

Criminal defense lawyers are among the lowest paid professionals in the country, after teachers. No one becomes a criminal defense lawyer to get rich. We all made a conscious decision to do something we believed in rather than simply contrive to get paid. Most of us could become quite wealthy if we were to become counsel for capitalists.

Grits, you're right about Brady requiring the state to share only exculpatory evidence. But if we had all the exculpatory evidence available, many more trials would yield fair results. Even a simple requirement that the criminal histories of complaining witnesses be provided to the defense would mean huge strides forward. I am much more concerned about hidden exculpatory evidence than not getting a complete preview of the state's case in chief.

I'll look at the bill to see if I'm way off base. Maybe it protects the stuff I'm worried about. Sorry about the long post but Celtic really gets on my tits.

Celtictexan said...

The framers of the constitution certainly intended an adversarial system, like the one they grew up with.

I sid they are not responsible for todays system.

And "the problem with the American legal system" is that too many innocuous things are illegal and are disproportionately punished, thanks to the arrogance, ignorance, cynicism and intellectual laziness of legislators, judges, and voters.

Well said except you leave out the Lawyers. Then again without all the above 90% of you would be out of a job.

"I think if all the courts operated on a truth finding basis..all except the lawyers who have become so very rich would benefit." Which orifice did you pull this opinion out of, Celtic?

It's one of the ten comandments, you no the one that says you shouldn't lie. Why do the word's truth finding bother you so much?

You think we are paid more for obscuring the truth?

No doubt about it! Obscuring the truth racks up the hours.

I'll finish later.

Celtictexan said...

The only difference would be that the state had to pay our fees,

The citizens pay your fees.

because even the most colossal idiot wouldn't pay his own lawyer to rat him out.

So you admit that you are paid to lie and obscure. And if you knew for a fact that your client raped and murdered a child what would be wrong with telling the truth? Or in lawyer lingo "ratting him out". Oh yeah the gravy train would come to a stop.

Criminal defense lawyers are among the lowest paid professionals in the country,

Rotflmao, Oh yeah O.J.'s lawyers are definetly living in shanty's. Grits is full of articles about the high cost of an attorney. And that's just for an incompetent one. No one but the rich gets real justice in this country under your system.

We all made a conscious decision to do something we believed in rather than simply contrive to get paid.

You might have started that way but just as with most politicians (lawyers) the system corrupts you, or kicks you into oblivion.

If you want a truth-finding regime, move to Mexico, where your lawyer tells the judge everything he knows, and the judge decides what to do with you, and that's that. I'm sure you'd enjoy Napoleonic justice.

What I would enjoy in our legal system is the truth. By your ranting I can see you wouldn't.

Gritsforbreakfast said...

Kelly, Christ said don't cast pearls before swine, and Usenet taught us Don't feed the trolls. Good advice from each - Celtic is just flaming for fun. His aren't real arguments, or at least knowledgeable ones. Really, almost ever.

Celtictexan said...

Celtic is just flaming for fun. His aren't real arguments, or at least knowledgeable ones.

I'm not flaming, sorry you feel that way. And it's not for fun, I have many other things I should be doing. I have a sincere desire to stop this multicultural liberal mess our country is falling into. But I recognize the pattern. The points I make threaten the Utopian fallacy liberals push. You say the arguments are not knowledgeable but instead of point by point rebuttal you start name calling. I understand you can't do that but to encourage it from others is just censorship. If your just looking for a one sided conversation, or a bunch of yes men just say so And I'll mosey on down the road. But there is no need for the insults and name calling.

Kelly Higgins said...

I take your point, Grits. That Jesus sure had a flair for metaphor. I don't think of celtic as a swine, however, just a guy who wants his opinion to impress people. If I knew what he did for a living, I'd pour out all my opinions about that line of work, and he'd tell me that I should shut up about stuff that I don't know anything about. Maybe the difference is that I would then shut up about the stuff I don't know anything about. This relates to the capacity for embarrassment, which celtic has apparently overcome...I probably wouldn't have the gall to speculate about his veracity and his filthy lucre.

To keep you informed celtic, the disposable part of the 60K I made last year defending the criminally accused was spent on cancer treatments for my son. My last vacation occurred before I became a lawyer. I drive a 5 year-old car and have one decent suit.

And Johnny Cochran is dead.

I looked at the legislation, Grits. It's almost all stuff we're entitled to now, and would get if judges weren't afraid of voters.

Did you notice the bit about protective orders? Every case involving assault of any type will see the state invoking this provision. The state will be able to hide behind mock fears for the safety of its witnesses. Don't imagine this will be rare. It will be every single case. And find me the elected judge who will rule that the defense gets the information when the state is claiming danger for its witnesses.

The present system is better than this proposed regime. I am trying to imagine the case that will be fairer to the defendant under this regime. I can't. You'll still have Tulia, because you'll still have overzealous and dishonest cops, prosecutors, and courts. The difference will be that defense lawyers will stop writing things down. The state will do its arrogant crusader-for-justice act just the same.

I want to give you a real life example, with an astoundingly common fact pattern: The police are called for assault/family violence. Someone is arrested, per policy. The alleged victim is now without any means of support. She wants to have the case go away and resume her admittedly depressing life, which at least includes meals and a roof for her and her kids. I know where she is, and she's told me all the above. She doesn't want to testify, or even to talk to the state, because she has past convictions which are embarrassing, or because she lied to the police about the assault. As things stand now, I have no duty to tell the state where she is, or how to get ahold of her. It is of course in my client's interest for the state not to know where its complaining witness is.

Under the proposed law, I'll have to tell the state where the unwilling witness can be found, essentially betraying my client's interest. Of course, where the witness wants to testify, and I need to interview her before trial, the state will complain to the judge that telling me where she is would put her in danger. Guess what the judge will do.

When this act becomes law, I'll move on to Wills and Estates, or maybe prosecuting war crimes. Then again, maybe I'll just go back to playing music in bars.

Celtictexan said...

If I knew what he did for a living, I'd pour out all my opinions about that line of work, and he'd tell me that I should shut up about stuff that I don't know anything about.

I'm an Aviation System Specialist Acronym Ass which I'm sure you'll love. I work for Bell helicopter in Amarillo Texas I the manufacturing process of the V-22 Osprey. Fire away as I'm sure you will be right about not knowing anything about it.

I spent almost 5 years with an organization called Fathers United for Equal rights. I spoke to various commitees of the the Virginia Legislature dealing with Family law. I was on an episode of 48 hrs entitled Fathers Fight Back.
the fathers group for politically correct reasons and against my advice changed its name to the Childrens Rights Council. It still exists check it out.

I spent over $30,000.00 on "defence lawyers" trying to get custody of my children. All the time being encouraged by him that I had a good chance. When I finally ran out of money he dumped me the case was settled I lost. The drug addict and abusive mother mother by way of the old tender years doctrine won.

I represented my self after that with the help of many other men who had been thru the advesarial process. I got quite good at it. Not that being good matters as the Judges are automatically discriminatory to pro se people. I guess they don't get their kick backs. When your pro se you tend to try to bring out truth in court. I learned the hard way in this and some other suits that truth is the last thing a person should bring to court. I could tell you much more I've done along these lines but don't tell me I don't know what I'm talking about. I've exspearianced the courts and the greedy lawyers.

Now tell me what you know about aircraft and how I'm all wrong.

Celtictexan said...

Maybe the difference is that I would then shut up about the stuff I don't know anything about. This relates to the capacity for embarrassment, which celtic has apparently overcome..

A typical statement directed to a person hitting to close to the truth. Point by point rebutals don't work when confronting truth.

I'll add one more thing about one thing I do and something Grits might address. I've talked to many divorcing couples from Va. to MD. to here about being fair with each other and told them what they are going to be in for under the advesarial system once each has a lawyer encouraging them to fight it out. (while both lawyers are probably meeting at a bar somewhere discussing how to milk them out of every dime they have).

I've not been able to get through to most of them but many come back later and say they wish they had listened.

I've showed them how to go to the court clerks and do their own divorce. Md and Va supplied forms for that kind of thing. Texas does not. This could help alot of people save on the high cost of the legal system. Forms are available on the internet but cost money. Lawyers hate it and are probably the reason the forms are not available. It's still 200. to process but better than the 900 I've been quoted for lawyer fees in an uncontested divorce.

Celtictexan said...

Someone is arrested, per policy.--or because she lied to the police about the assault.

So while some one is in jail for an act they did not commit you want to be able to hide them?

Kelly Higgins said...

A fricking arms manufacturer? You make your living by giving the world's militaries the capacity to kill people from the air, and you wanna lecture me about morality? You are a piece of shit, Celtic.

Gritsforbreakfast said...

Celtic, the fact that you feel bilked on your divorce explains a lot about your opinions, but you shouldn't take that out on criminal defense lawyers. That's a different job - you were in civil court for your divorce.

That said, my main point would be that none of this is about you, no matter how much you feel hard done by. You simply don't know what you're talking about in this string, at all, and in many others, and it's a waste of time for anyone to go "point by point" with someone who's that misinformed - I'm not name calling, you're literally proving it with every fresh comment, yet don't seem to realize it. Kelly's right - it's as though you've lost the capacity for shame.

I try to give you the benefit of the doubt on your trollish tone and constant insults , but you make it pretty hard. It's laughable to hear you whining about feeling insulted - you're a jerk to everybody here.

Finally, something in me doubts you have THAT many other things you could be doing.

Celtictexan said...

A fricking arms manufacturer? You make your living by giving the world's militaries the capacity to kill people from the air, and you wanna lecture me about morality? You are a piece of shit, Celtic

Yeah I ensure your right to be free. And you a lawyer no worse can be said.

celtictexan said...

"you were in civil court for your divorce."

I know what court I was in. I have expearienced criminal also. And been thru appeals processes in both.

I really don't understand your position. Your posts are full articles dealing with the high cost,and unfairness of the judicial process. And lawyers are one of the biggest reasons, along with the so called experts both sides present, and the private detectives and the state itself.

Very few people understand that the system is adversarial. Just like me in the beginning, people go to court thinking its about right and wrong, truth and lies. And its not. It is strictly about the law, and the law is maze of legislated confusion and loopholes designed to aid lawyers to keep the citizenry in the dark and dependent on them. I would think that if you are really so concerned about the poor as we all should be you would at least consider what I am saying

The law is for the people. We have no choice but to follow the law. It shouldn't be wrote in Latin and the average person should be able to comprehend the workings of the Law. And as far as I'm concerned any charge brought against a person by the state should not cost him anything. But that would be impossible in the adversary system.
You know as well as I that for the most part only the rich get justice or as in the case of OJ get away with murder.

And when have I called anyone a piece of shit. There are more insults and trollish, flaming behavior in just two posts from kelly than I have seen in your entire blog.

Gritsforbreakfast said...

Celtic, the difference is Kelly is a professional in the field speaking from personal experience about the specific topic of my post. By contrast, you flame, insult, and often drag comment strings off topic, usually through ad hominem attacks and name calling - everybody who disagrees with you is a liberal, socialist, un-American, traitorous, etc..

What's more, often you're just utterly wrong precisely because you think you know how things SHOULD be but don't understand how they ARE. Then you refuse to accept evidence contradicting your uninformed positions - an absurd case above was when you claim the founding fathers didn't envision an adversarial system where defense counsel's duty was to their client's interest. It's just ignorant.

You argue against straw men that don't represent anyone's arguments but just your skewed view of what a liberal thinks. You do that ALL the time, and rudely. For me and I'm sure for others it's grown somewhat tiresome.

Treat people like crap and don't be surprised when they respond the way Kelly did. Treat people more respectfully and I predict they'll respond in kind.

Finally, and I'm not so much talking about this string as generally, I'm nearly to the point of deleting your comments that don't address the subject of the post. And I mean with argument, not labels and name calling. When I write about staffing levels at the Dallas PD office, my purpose is not to give you an opportunity to screed about immigration. You've had plenty of notice by now on that score.

I want everybody to feel comfortable commenting here - especially professionals in the field because that's the kind of dialogue that can help find new solutions. Your uninformed flaming doesn't much help that cause, Celtic. I'm sorry.

Celtictexan said...

an absurd case above was when you claim the founding fathers didn't envision an adversarial system

That is just an out right false statement. I said todays system. Just as they never envisioned the first ammendment would be used to allow child porn, they never envisioned that the legal system would evolve to the mess it is today.

We both understnd how things are. the difference is that you want to try to make a broke system work. I want to fix it at the root cause. I think out side the box.

All I said was that there should be truth in court and everyone goes off the deep end.

I doubt you can pull up one thing I've said that could be called a personal insult that was not a response from someone who insulted first.

At any rate I'm not here to be a troll. So I might read on occation but won't post anymore. I can see that only yes men are welcome here.

I would like you to make one specific answer to a question I know Kelly won't. You know the whole context.

Someone is arrested, per policy.--or because she lied to the police about the assault.

So while some one is in jail for an act they did not commit you want to be able to hide them?

Matt McBrayer said...

Mr Higgins, you were recommended to me by a mutual friend but I can't seem to get a hold of you. Can you contact me? My name is Matt McBrayer. My email is mattmcbrayer@gmail.com. Thanks