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.