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.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?
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.
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.