Wednesday, February 29, 2012

Plea deals without open files turn off ignition on adversarial system's truth-seeking engine

An exchange between judge and defendant during a guilty plea out of Williamson County in a remarkable, 33-year old murder case caught Grits' attention.

Benny Tijerina was sentenced to concurrent 40 year sentences in Williamson and McLennan counties for the crimes, though he claims and a victim's mother agrees that another man was the shooter (the prosecutor claimed to have jailhouse informants who say otherwise). Anyway, as cold cases solved by DNA go, this was at once both a remarkable and increasingly a routine event.

What caught Grits' eye was an exchange recorded at the end of the Austin Statesman story: "After he was sentenced, Tijerina asked [Judge] Carnes why he hadn't been allowed to see any of the evidence against him in the case. Carnes said that was standard and that Tijerina would only have seen the evidence if the case had gone to trial."

That's true as far as it goes under the US Supreme Court's Brady v. Maryland ruling, but it's also a "standard" that shifts in Texas county by county at the whim of the local elected prosecutor. In Tarrant County, for example, defense attorneys have access to prosecutor files - electronically, no less - even in cases that result in plea agreements. In El Paso, too, DA Jaime Esparza told a conference at the Task Force on Indigent Defense that his office allows defense counsel to get access to case files within 24 hours, noting that it facilitated more routine cases getting disposed of within three days or less, reduced jail costs, overcrowding and liability, relieved court dockets, and even freed up space in the jail that's now leased out to house federal inmates and make extra money.

We live under a justice system where 98% of cases result in plea bargains instead of trials. Under the Williamson County rule, in the overwhelming majority of cases nobody outside the prosecutor's office ever actually vets the evidence before a sentence is dispensed. If the adversarial system is a truth seeking engine, in 98% of felony cases the engine's ignition switch remains locked in the "off" position under that "standard."

According to the Texas Office of Court Administration's annual report (pdf), "Less than two percent of all criminal cases (excluding transfers and motions to revoke probation) went to trial in 2010" in district (felony) courts. Just 3,633 felony cases in FY 2010 went to either jury or bench trials, says OCA. So in the overwhelming majority of cases, under the Williamson County system, the defense never sees the evidence.

I have no knowledge of the case beyond this report from the Statesman and don't argue with the sentence(s), but that exchange between defendant and judge about what is "standard" in Williamson County - and too many other Texas courtrooms - should raise alarm. The same sort of prosecutorial gamesmanship takes place in more routine cases all the way down to the misdemeanor level. Make Grits philosopher-king and I'd prefer that, as in El Paso and Tarrant, both sides had full access to the police investigation as early in the process as possible. Clearly some DAs - like Williamson's John Bradley - just won't do that unless they're required, so in the interests of justice the Legislature should make them.


D.A. Confidential said...

Just for the record, we have open file discovery here in Travis County, too.
My own personal experience, and not speaking for anyone above or below (?!) me in the chain of command, is that if both sides go into a plea negotiation with the same, disclosed, information, it makes for a more productive and less posturing-filled exchange.
People can argue the philosophy and politics (though, again personally, I'm in accord with you) but on a practical level it makes the wheels of justice run more smoothly.

Anonymous said...

Just for the record, Williamson County has open file discovery. The statement of the convicted murderer was only intended to mean that the inmate didn't get to personally view and handle the physical evidence in the case (e.g., the underwear containing the semen-DNA that led to his conviction). Of course, his lawyer had access to the entire DA file and was free to learn all about the evidence available in the case. The prosecutor even made that statement earlier in the plea.

Gritsforbreakfast said...

JB/7:57, I can't speak to what was said in court, but local attorneys don't corroborate that "Williamson County has open file discovery."

Anonymous said...

I'm so glad you wrote about this. I saw that statement yesterday and it bugged me. How is anyone expected to get a fair trial in this state?

(Also, chuckles at "JB/7:57")

Travis said...

I think I remember a quote from Williamson County DA John Bradly that there is NO open file discovery in the plea negotiation phase. Discovery didn't happen until it was decided a trial was going to take place.

Anonymous said...

I'm sure that since grits rightfully sees the goal of the systen as the seeking of the truth, that he will be a forceful advocate for reciprocal discovery--i.e., the defense being required to disclose their witnesses prior to trial as part of the discovery process. After all, we are trying to get to the truth, aren't we?

Anonymous said...

Anonymous @ 9:35 a.m.

"the defense being required to disclose their witnesses prior to trial as part of the discovery process."

Yeah, that's already the case if the State makes the proper motion.

I realize you're trying to attack Grits by hamhandedly implying he's a hypocrite, but the fact of the matter is that the State holds all the cards in criminal prosecutions. Criminal trials in real life aren't like they are on TV. Rare is the case where the defense is able to discover a surprise witness who is able to give relevant material testimony that the State doesn't know about. Even if the defense is able to accomplish this rather incredible feat, all the State would have to do once they learn of the surprise witness would be to ask for a continuance or recess to prepare to cross him or her. While I haven't surveyed every criminal court judge in the State, I don't think you'll find more than a handful (if that) who wouldn't grant the State's motion.

I guess what I'm saying is that your point is pretty silly and is based on a misunderstanding of how criminal trials work in real life.

Anonymous said...

7:57 of course since you are jb himself or one of his office puppets, everyone knows you do NOT have an open discovery policy.
You might want to read this..

"No, no! Sentence first - verdict afterwards!" the Queen of Hearts said in "Alice's Adventures in Wonderland," by Lewis Carroll.

Silly words spoken by a silly character during a silly story about a trial where none of the normal rules applied. Just a fairy tale, right?

Well, for those who are accused of felony crimes in Williamson County - and their defense attorneys - dealing with Mr. John Bradley's district attorney office can sometimes make one feel like they have, like Alice, truly dropped down a rabbit hole.

In his recent opinion column (Oct. 29 Leader), Mr. Bradley takes pains to assure the public that unlike in the knuckle-dragging days of the past, circa the trial of the wrongly convicted Michael Morton, today's "modern" discovery at the Williamson County District Attorney's office is conducted in a more open manner.

He writes, "... you can be sure that in Williamson County, before any contested trial begins today, the defense lawyer will have already received access to all the information collected in the case."

Sounds great, doesn't it?

Ah, but let's go through the looking glass together, shall we, and see where this statement falls well short of reality.

As Mr. Bradley is undoubtedly aware, well over 90 percent of criminal cases in Texas are resolved without a trial. The vast majority of cases are settled with a plea bargain. His letter, focusing only on what discovery is available to defense counsel immediately prior to a full-blown trial, ignores that vast majority of cases his office disposes of.

So let's talk about that vast majority.

In Williamson County, it is common practice that many of those felony plea bargains are given to defense counsel and their clients on a "one-day only" basis - meaning take it today, or the deal gets worse.

And that "today" is often the first day the attorney and client have ever been in court. Many, many times a request for additional evidence (oftentimes something as simple as a lab report or a DWI videotape of a client being stopped by the police) will be denied by Mr. Bradley's prosecutors with the veiled warning that if a deal is not speedily taken, the stakes for the client could get much worse.

While I routinely advise my clients to ignore such attempts at bully brinksmanship and wait patiently until I can secure all the evidence, it puts my clients in an awful bind.

They are made to choose between a plea bargain right now, when I have not had a chance to fully evaluate their case, or suffer a worse bargain later, after I have had the chance to do my ethical best to collect all the evidence in the state's hands.

A plea-bargain offer is only as good as the evidence that can back it up.

When evidence is not revealed to defense counsel during the critical plea bargaining stage of a case - well before the decision to go to a jury trial is made - injustice occurs.

We should demand transparency during all phases of prosecution.

Mr. Bradley, let's leave the kangaroo courts for the storybooks, please.

- Mark Brunner,


Anonymous said...

That was not an attack. Either a trial is the search for the truth or it is not. You obviously are not a trial attorney that participates in criminal matters as you insinuate that one could just go get a continuance for a surprise witness. Ain't happenin' in most courts. You show a complete lack of knowledge of how criminal trials happen in real life when you say it is rare that a surprise witness shows up. Happens all the time. Leave your sanctimony at home, please. This issue has been perculating in the criminal justice community and the legislature for quite a while.

D.A. Confidential said...

In the interests of fairness, I wanted to address Anon @10:08, who says a couple of things (and please bear in mind I'm not necessarily advocating a position on this discrete issue, just adding to the discussion):

"Rare is the case where the defense is able to discover a surprise witness who is able to give relevant material testimony that the State doesn't know about."

Very true. However, it does happen and if what you say is true one could fairly ask, "So then what's the problem in letting the state know?"

Even if the defense is able to accomplish this rather incredible feat, all the State would have to do once they learn of the surprise witness would be to ask for a continuance or recess to prepare to cross him or her. While I haven't surveyed every criminal court judge in the State, I don't think you'll find more than a handful (if that) who wouldn't grant the State's motion."

Actually, I'm betting most judges here wouldn't. Don't know for sure, but in my experience there's nothing a judge hates more than a continuance requested during trial. So I think there'd be a lot of resistance (for the jury's sake) to a request for a continuance.

Finally, Anon suggests there's already a way prosecutors can get the defense witness list by filling the proper motion. That only goes to expert witnesses, not lay witnesses.

And I have had trials where people have come out of the blue to testify, as I said. But I've never really minded, I rather enjoy cross examining them and if they're liars, well, that usually shines through.

ex con said...

Question to any travis county DA do grand juries get to see all discovery files before making the choice to indict a person?

Anonymous said...

Grits, I think if you look into this issue a little more deeply, most DA's offices in Texas already have some type of open file discovery which occurs well in advance of trials. I don't know for sure what the current policy is in Williamson County, but if it's a closed file until trial, that policy is probably not very representative of what most DA's are currently doing.

The fact of that matter is that the Legislature has taken up proposed reciprocal discovery bills over the last several sessions. To the extent that prosecutors have taken a position on this legislation at all, it has been that most prosecutors FAVORED the bills. Why is this? Because with open fill policies they are already giving up everything the legislation requires. It has been the DEFENSE bar which has expressed negative testimony against the legislation because they don't want to have to turn over a witness list to the prosecution or have to give notice of any alibi. As things stand now, the ONLY obligation that the defense has under current Texas law is a requirement to identify expert witnesses as DA Confidential noted above.

If you really want to get some legislation moving on this issue, and make trials a real pursuit of the TRUTH, then you probably need to be talking to your buddies over at TCDLA.

Anonymous said...

Disclosure prior to suppression hearing? What is the law, what is reality? For lots of cases suppression hearing is the case and lots of cops/prosecutors play real dirty here.

rodsmith said...

well i don't know if that's the policy or not. But if it is. There is a simple sulution. Have every defense attorny to notify the state that because of it's idiotic stance EVERY case will go to trial We will bury you in extra expense. Or you can play nice!

I also agree the defence should be required to give up witness info if known. Not much anyone can do about walk'in's. But i disagree about being required to reveal an alibi witness.

Sorry unless and intill the state would AUTOMATICALLY dismiss any case where an alibi witness's statements are confirmed. FORGET IT.

Right now the state has all the cards so if they want to go into a court and announce to the world joe bob was in austin jan 5 at 5am and comiited "X" then live with your statements. Then when the alibi witness walks in and proves your talking out your ass. take it up with the cops who were probably testilying!

Gritsforbreakfast said...

I'm not automatically opposed to reciprocal discovery - I think for reasons articulated in this string its seldom an issue for the defense - but at the Lege it's really more of a political dodge to avoid open files than a real issue. If all DA's already have open files, according to anons here, then nobody should fight it at the Lege, right?

With reciprocal discovery you must wrestle with the 5th Amendment, whereas Brady and the corollary philosophy of open files by the state stem from constitutional obligations of prosecutors. So it's a false equation to say blame TCDLA - the defense bar is to blame for plenty, but DAs decide how much of their own files to release, and failure to do that is contributing to false convictions.

Anonymous said...

No. You've found one DA in Texas who may have some restrictive policy and from that you're arguing for a need for legislative action. In fact, I bet you'd have a hard time finding ANY Texas prosecutor who has gone on record or even done any back door lobbying against any of the reciprocal discovery bills which have been filed.

Your fifth amendment claim is, in a word, bullshit. Many states already have reciprocal discovery in criminal cases and they pass constitutional muster. How is notifying the prosecution of an alibi defense or listing potential defense trial witnesses---filed by an attorney--violative of the protection against compulsory self-incrimination? And more importantly, if you could bring out legitimate defenses earlier in an unfounded prosecution so an investigation could be refocused toward the true perpetrator, wouldn't this be a good thing?

I suppose though, if your goal is not to make the process more accurate, but rather just to make it harder for the prosecution, and easier for guilty criminals to get off, then many of the one sided proposed "reforms" are wonderful.

You have a very obvious and transparent agenda here. You're using a handful of anecdotal bad cases and the ongoing controversy in Williamson County to try to make all Texas prosecutors look bad. The fact of the matter is that the vast majority if Texas prosecutors play by the rules, are open and honest with the defense, and get it right every day. I suppose however if your only goal is to coddle criminals and help them stay on the streets, that really doesn't matter does it?

Gritsforbreakfast said...

"The fact of the matter is that the vast majority if Texas prosecutors play by the rules"

I agree, and the rules do not require them to disclose their evidence in plea agreements. That was the point of the post.

Anonymous said...

Deut 16.18 Justice Justice shall you pursue.
In a system based on criminal processing; maters of justice regarding guilt or innocence are simply mute points. Phrases like tough on crime, war on drugs, don’t mess with Texas help to encourage this abomination of true justice. Evangelical Christian leaders in Texas are a shining example of the gospel of Jesus being nothing more than a crap filled fairy tail. A fairy tail that allows people to believe they can dump their responsibilities on a dead man while getting away with heinous crimes in the eyes of God and man. Do they believe God is as biblically retarded with respect to human rights as the Christian leadership in Texas with their minstrel followers tend to demonstrate?

Anonymous said...

I probably shouldn't address anon. 7:56...something about wrestling with a pig comes to mind.....anyway..all this open file stuff is nice but that won't begin to address the real problem: Deliberate and intentional misconduct that has reached epidemic proportions because of the lack of accountability for prosecutors.

I'm sure what I just said offends 7:56, probably because he is a prosecutor. I agree that most prosecutors are ethicl and honest. Unfortunately, we've seen from both anectdotal evidence as well as some research that has been done on the issue, deliberate and intentional prosecutorial misconduct occurs with alarming frequency. Just because you have an "open file" policy doesn't mean a prosecutor won't withhold something from the file.

I know this blog focuses on Texas, and there are plenty of examples from Texas, but recent SCOTUS cases have shown the light on the New Orleans DAs office. There was the Connick v. Thompson case where the Court refused to hold the office accountable under a failure to train theory based on a single incident. Then, there was a criminal appeal out of the same office just recently, can't remember the name right now, that shows there is a pattern of Brady violations in that office. The poor attorney representing the prosecutors got chewed up by the justices. I think even they, are starting to get fed up with this stuff.

Its time to end absolute prosecutorial immunity for starters. But, I think we should go even further and start prosecuting prosecutors who deliberately violate people's constitutional rights (yes, there are criminal statutes both in Texas and at the federal level that would apply).

7:56, let me ask you, if all prosecutors are so open and honest, why do we have case after case after case after case after case after case of serious and intentional prosecutorial misconduct. If you're interested, which I'm sure you're not, I can point you to some research on the subject that shows it is a common occurrence.

Hook Em Horns said...

There is NO open discovery in Wilco!

benbshaw said...

There is also the D.A. and police actions that don't appear in the record (file).

One D.A. in Hays county told a person in a domestic violence, "you don't need a lawyer" The person agreed to an anger management class. The alleged victim brought changes later and the person charged them has "his agreement" as evidence that the D.A. can use later.

A neighbor across the street was falsely I.D.ed by an anonymous Crime Stop witness because the picture in the newspaper looked like my neighbor.

The San Marcos City police called him, saying you can clear yourself by "coming in and talking to us." My neighbor fails to understand the adversarial nature of his appear before the police. The police even talk to him to give a DNA swab and collect his fingerprints off of a cup of water they offer him. They refuse to call an alibi witness where he was working when the bank robbery took place. They never tell him he should get a lawyer under the excuse, "he was never arrested" but was still treated as if he was arrested.

Ultimately, the real bank robber was caught in another bank robbery. My neighbor has a seizure and spends days in the hospital because of the stress. The police never offered an apology or expunge the record or remove the illicitly gather DNA and fingerprint evidence from their records.

Anonymous said...

The rules do, however, require prosecutors to disclose Brady material, i.e., evidence favorable to the defendant. That duty is a continuing duty and exists without regard to the presence or absence of any open file policy. There's seems to be a little misconception on this thread that a prosecutor having an open file policy and disclosing Brady material are one and the same. Most prosecutors will tell you that one of the best reasons to have an open file policy is to avoid inadvertant Brady violations. If you just let the defense have everything, it's pretty hard for them to claim you didn't disclose Brady material. With that said, just because a particular DA's office doesn't have an open file policy doesn't mean there isn't still a duty to disclose exculpatory evidence. The duty to disclose Brady material applies even if there's a plea negotiation and ultimately a guilty plea by the defendant.

So, with that said, the point of your post is incorrect to the extent it implies that have no present duty under the rules to disclose evidence favorable to the defense prior to a plea bargain.

Incidentally, Art. 39.14 of the Texas Code of Criminal Procedure already provides the discovery rule whereby the defense can get a court order requiring the prosecution to disclose various types of evidence in the state's file "which constitute or contain evidence material to any matter involved in the action." This rule also contains the requirement regarding the identification of expert witnesses. If there is no open file policy, there is nothing that precludes the defense from filing a discovery motion prior to engaging in plea discussions and gaining access to the state's file that way.

Hook Em Horns said...

Obviously, there are two groups of people posting in this thread. Those who work in the Wilco D.A.'s office and those of us who have had to deal with them.

Deborah said...

What would you all say about parole and the state of Texas continuing to refuse, even though it was requested by the court, to disclose the name of a parole officer and the parole report by which your parole was.violated? It has been requested in all of the court docs I have filed with Harris Co, Appeals, Fed Court and now our case is filed with the Fifth Circuit. We have done all of the legal work--I'm no lawyer, at our own expense-- he has been locked up for almost 3 years now. No discovery with this state; they continue to refuse to produce the audio tapes of the revocation and pre-revocation tapes and they "doctored" the transcripts the sent to us and the courts! I requested them and they refused to give them to me saying I was "acting as an agent on behalf of my husband ( you betcha I was!) so how can Texas say "we have an open record policy" when in fact they don't?

Anonymous said...

It would be interesting if someone had the time and the will power to contact the inmates in TDCJ who were sentenced by JB. Wilco does not provide discovery; No police report, No PSI and incomplete transcripts. They just record what they want the transcript to show. UNCONSTITUTIONAL!!

Anonymous said...

Prosecutors in my jurisdiction (neighboring state) *routinely* threaten that if you demand discovery and/or talk to witnesses, they will pull any plea offer if already made or make no plea offer, and try to max the defendant (including bringing additonal charges).

This is unethical and illegal - but is so ingrained into the 'system' to force people into rapid (and often injust) pleas that the judiciary has been dodging the issue as best it can. But the fight is looming on the horizon.

Read ABA Formal Ethics Opinion 09-454. (of course, to what extent ABA opinions bind states or are adopted by states is often a vague and contentious matter)

at Page 7:
For exmple, may the prosecutor and defendant agree that, as a condition of receiving leniency, the defendant will forgo evidence and information that would otherwise be provided? The answer is “no.” A defendant’s consent does not absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept or rely on the defendant’s consent.

IMHO it is the right answer ethically -- and should be legally as well. But the judges (who in the end control both the ethics system and the legal litigation system) are desperately afraid of both the political power of prosecutors and 'tampering' with a system that gets rid of most cases not only before trial but also before the judge even has to have a hearing.

Only time will tell.....

Thomas R. Griffith said...

The 'King' of Nolo Contendere (Mr. Casey O'Brien) boasted in the comment section of a Simple Justice Blawg Post entitled - "Plea Bargaining 201" the following.
"In my experience as a career prosecutor, there are three kinds of cases with many exceptions, that go to trial: the very serious, the very solid, and the very close. The other 95% are plead. I have often wondered what would happen if the defense community balked and refused to bargain." My question(s) of the day goes out to the DAs & ADAs. Take your pick. *Do you consider the judge's chambers as being Open Court? *Do you take it all the way to lunch recess on the first day & decide to plea bargain? *If your felony case involves a firearm, do you create records (ex. Chain of Custody) showing; how it was obtained, who obtained it, where it was stored at prior to & after a jury trial, the method & location of its destruction and who destroyed it?

Those feeling frogy and wish to stay on the topic of "open files" & how they relate to Open Records request are asked to consider this. Let's say that an O.R. request reveals there are absolutely no records whatsoever in the entire state of Texas relating to a firearm that an ADA entered as a State's Exhibit". And the certified case file shows that there are two State's Exhibit docs. dated seven years apart listing a total of three number twos? WTF? or That's normal business as usual? Thanks.