Wednesday, November 29, 2006

Trial by ambush: Lack of pretrial discovery for defense thwarts justice

The lawyers call it "trial by ambush." Unlike many states, Texas criminal law doesn't allow for "discovery" where defense counsel can find out the substance of accusations against their clients before trial. From a well-done report on the topic by KHOU in Houston ("Could you be innocent and still go to jail?," Nov 28):

A prosecutor is supposed to share evidence the courts may have discovered that points to a defendant’s innocence. It’s called “exculpatory evidence.”

But it turns out there’s a problem: Only the prosecutors get to decide what they think is really exculpatory or useful evidence for a defendant. If they don’t think it points toward exoneration, the defense may never see it.

That’s why as a check on prosecutors, many states allow the defense to independently look at the prosecution’s case file through a process called “pretrial discovery.”

But in Texas, 11 News has found that that discovery can be severely limited and even nonexistent in some counties because of the way DAs interpret a state law.

And worried experts say it definitely results in innocent people going to prison.

Some Texas counties, like Tarrant, just copy the file and give the whole thing to defense counsel, just like attorneys in civil court get access to "discovery" to find out what evidence the other side will present. But other counties either won't let lawyers view files at all, or force them to copy files by hand instead of giving out photocopies, or pick and choose which cases they'll share information about and how much.

Even complex lab reports can't be viewed by the defense in Harris County, reports KHOU, often until the expert witness is on the stand at trial. Since the vast majority of cases end in plea bargains, not trials, that means many defendants may be convicted with no one but prosecutors ever having seen forensic or other evidence against them.

What are the consequences of not sharing prosecution files? Obviously the failure to disclose exculpatory evidence might cause innocent people to be convicted. But from anecdotes in the KHOU story, sharing those files would make the whole process run smoother. Here's the story of a poor fellow who was innocent, and Harris County prosecutors had exculpatory evidence in their possession, but his lawyer was never informed:
“What the police had alleged was impossible,” [Gary] Scales' attorney Stacey Bond said. “There was absolutely every kind of evidence that you would want that would demonstrate that the police had made a mistake.”

For example, she points to evidence such as her client being at lunch with three colleagues around the time the dope deal went down.

But Bond said even worse was evidence that pointed to Scales’ innocence was known by the prosecution that she said was never disclosed to her.

Take the man police said was on the other side of the drug deal. Scales said she would eventually discover, “that man said he didn’t know who Gary Scales was and couldn’t identify him.”

But Bond said the Harris County prosecutor never told her about it.

“That information should have been communicated to me as quickly as possible,” Bond said.

In the meantime, Gary Scales had been sitting in jail, unable to make a high bail amount, for three months.

And Bond said because the prosecutor didn’t disclose the other defendant’s statement, Scales “sat in jail for another three months.” Then Harris County dropped the case, still with no mention about the “exculpatory information” in Scales’ favor.

Imagine, six months in jail, and prosecutors knew from the beginning that the main witness - the alleged other participant in a drug transaction - failed to identify Scales as a suspect! Instead of sharing the information, prosecutors just kept mum then dropped the case, but Mr. Scales' won't get those six months of his life back:

There is a giant hole in Gary Scales’ life: “Missed Thanksgiving, Christmas, my wife’s birthday, my anniversary.”

“Basically it was like I was dead for six months,” he said.


Anonymous said...

The police see no need to share exculpatory evidence with the prosecution, so why should the prosecutors be any different? No prosecutors will go to jail for concealing evidence which would free the innocent simply because the police will protect them, and judges dare not take on the police head to head.

The police will be more aggressive in suppressing evidence -- such as scaring witnesses into going into hiding, or silencing them by putting them into hiding by framing and locking them up.

The police can create evidence out of thin air by through the Prisoner's Dilemma scheme, fabricating charges and evidence so they can threaten someone with prison if they don't let the police play puppeteer.

The police, and their agents, the prosecutors, have an immense budget of money, manpower, and resources, that easily overwhelms almost everyone in their path. The few times they lose it is due to their own stupid bungling.

The next time you hear the word 'fair' in this system, give a sickly grin.

Anonymous said...

Besides constitution prosecutorial misconduct which could result in the conviction or sentence being overturned on appeal or post-conviction review, this problem may also violate due process because a defendant must have the opportunity to explain or deny the evidence against him, which in some cases might require the exculpatory evidence the state has in its possession. And the state, which has the material in its possession, should be the party with the responsibility to turn it over.

Anonymous said...

When was the last time a District Attorney was re-elected on the baiss of his/her performing their constitutional duties of "seeing that justice is done"? DA's are re-elected on conviction rates and sentencing practices for felons - jail and prison time dispensed or recommended. Requesting the dismissal of a capital murder or robbery or assault or burglary case because of mistaken identity or other information in which innocence is likely is not soemthing that DA's desire to do.

Anonymous said...

I'm the only attorney in Hale and Swisher counties that is being denied access to the open file policy our recently elected district attorney maintains for all other attorneys. The AG has yet to order disclosure of police reports in any of my cases. And the DA has called at least two police departments or their city attorneys asking that I be given no access to anything, including videos, dispatch logs, radio chatter, offense reports, etc. An ADA in the DA's office has actually told me that she's read the offense report in one case and can assure me that the traffic stop was legal. I guess I'm supposed to associate share my court-appointed lawyer fee with her and the District Attorney's office when, and if, I decide to recommend a plea offer to my client, right?
As to anonymous's protection of the police. Federal law requires the DA to be responsible for exculpatory evidence in the files of the police and any other agency that is considered part of the prosecution team. If the police are not sharing with the DA, the DA should not prosecute the cases. And the DA can lose his license to practice law over Brady violations. I agree with the others, it's past time to get Texas on the same justice page. An open file policy eliminates most Brady violations. A closed file policy encourages them.

Anonymous said...

When did D.A.'s get to choose when they could and couldn't disregard the Due Process clause?

The whole reason for Discovery is for DA's to turn over all evidence relevent to the case they plan to put on. The defense is not supposed to have any "surprises" sprung on them at trial.

Why don't we just skip the "presumed innocent" and the "fair trial" and go straight to the sentencing portion?


Anonymous said...

I am the poor soul that lived 6 months in the "Harris County Hilton". The injustice that i had to live through is at best, indescribable. My attorney, Stacey Bond had every conceiveable point of evidence to prove my innocence, but it was still to the ADA to prove that irrefutible evidence as false. Yes, the case was dropped before trial because the ADA did not have sufficient evidence to prove that an innocent man was guilty. But the impact that I spent the equivalent of my life savings to "PROVE MY INNOCENCE" is still my burden to bear. It is now 4 years later, I have not been "PONTED TO AN ACCESSORY" to the original crime, and have had to make my life over. It is sad that there were no repercussions that I could have levied on the ADA or DA for that matter, but then life as I live it is, "you reap what you sow and what goes around comes around". Chuck Rosenthal got his comeuppance as well as some of his cronies, so some justice was served. I am doing well, after many months of describing how "you are guilty until proven innocent, and you do not stand a chance if you cannot provide counsel for yourself!!!!!

Justice is a 7 letter word that must be purchased as far as I am concerned!!!

Gary Scales