Thursday, September 20, 2007

Judge Criss requires expanded discovery in Galveston criminal cases

Reacting to this Grits post about a new Justice Project report advocating expanded discovery in criminal cases, Galveston District Judge Susan Criss, who is a Democratic candidate for the Texas Supreme Court (see her campaign website), forwarded this discovery agreement (pdf) she requires prosecutors and defendants to enter into in her court. Judge Criss writes:
I read what you wrote in GFB about discovery in criminal cases. I make both the prosecutor & defense attorney enter into an agreed discovery order (attached) when they come to court for their status conference to set the trial date. This is either the first or second appearance they make. If they do not sign it, or just one side signs it, I enter the order anyway.

Everyone knows this discovery is ordered in every case. And they know I will enforce it. I got input from several prosecutors & defense attorneys when I drafted it. If they have something unusual that is not provided for in the order, the defense can file a motion & have a hearing.
So that's an interesting twist, huh? I hadn't considered that just because Texas doesn't have strong criminal discovery laws wouldn't prohibit judges from requiring more disclosure if they choose to do so.

As a commenter in the last post on discovery pointed out, defendants rightly enjoy extra protections in "discovery." Because of the constitutional right not to incriminate oneself, there's a limit to how much information defendants can or should be required to give. I've always wondered whether requiring "mutual" discovery, including that the defense divulge information, might potentially cross that line? Judge Criss' order tells defendants to give up names of witnesses and any written witness statements -that's not as expansive as federal discovery rules. That might be a good compromise on which to model a stronger Texas discovery statute.

You legal eagles in the crowd let me know what you think of Judge Criss' discovery order, and thanks, Judge, for sharing it.


Anonymous said...

Realistically, that reflects that actual state of discovery in Texas criminal law. Just about everything listed is available to defense counsel via proper motion through statute or established caselaw.

Gritsforbreakfast said...

Thanks! As I understand >Texas' discovery statute, right now prosecutors don't have to give up witness statements and police reports, but Judge Criss requires it. is that not right?

I'm also curious if the current case law requires the defense to give up witness statements? They're included, too, in Criss' order, but I thought under the CCP Ds only had to give witness lists, not their statements.

I thought her order was slightly more expansive than the plain language of the statute, but IANAL and it's certainly possible I'm misreading or that case law answers the questions.

Anonymous said...

Current Texas law does not require that prosecutors provide the defense with their evidence, even key documents of central importance like police reports. The law provides a mechanism for the defense to file a motion requesting access to particular evidence, but they must "show good cause" first. And there are no statutory timelines on when they might actually get a look at key evidence, so there is no guarantee that the information can be sufficiently digested and investigated in order to effectively challenge and test the evidence.

A huge part of the problem is that jurisdictions are all over the map on this. Some judges, like Judge Chriss, are proactive. And I understand that Tarrant County has an open file policy in which the entire file is digitized and available to the defense online as soon as a defender becomes counsel of record. But these are only discretionary policies.

As for defense disclosures, you rightly point out that the 5th Amendment and the constitutional role of the defender preclude any requirement to disclose incriminating evidence. In jurisdictions where any defense discovery obligations exist, they are strictly limited to what the defense chooses to make use of at trial. But there is no question that the most basic need on this topic is to ensure that persons accused of crimes are made aware of the evidence against them in order to challenge it as best they can.

The adversarial system is designed to provide a forum in which evidence is tested and challenged, and the whole process allows judges and juries (ideally) to get to the truth. But if the accused does not have sufficient opportunity to understand process the state's evidence, it cannot be meaningfully challenged. That undercuts the whole point of the adversarial system.

Anonymous said...

I find it interesting that the judge says: "I make both the prosecutor & defense attorney enter into an agreed discovery order.... If they do not sign it, or just one side signs it, I enter the order anyway." I wonder how "agreed" this order really is if she MAKES them sign it.

The first words of the Texas Discovery Statute read as follows: "Upon motion of THE DEFENDANT showing GOOD CAUSE and upon NOTICE to the other parties..."

It concerns me when judges make or force attorneys to do things that are in DIRECT contravention to the statute that the Legislature approved and "JUST ORDER IT ANYWAY."

Anonymous said...

If the prosecutors had evidence that the defendant's alibi was solid -- a security tape showing him shopping at Walmart at the time of the crime, just like he'd told the police -- would they have to tell the defense about their exculpatory evidence?


The defense would have to know about the tape in order to ask for it, and if the judge allowed the defense to ask for it, could he make the prosecution give it up, even if they denied it existed?


Discovery is just a lawyerly bit of legerdemain, at heart just an empty gesture. It's part of what grifters call 'cooling the mark', and it hides the fact that all partied -- prosecution, defense, judge, and police -- can play dirty.

Anonymous said...

If the prosecutors had evidence that the defendant's alibi was solid would they have to tell the defense about their exculpatory evidence?

Yes, they absolutely would. The Supreme Court has ruled so in Brady v Maryland.

Could the court make them give it up? Yes, as much as a court can make anyone do anything. Courts can hold prosecutors in contempt just like anyone else, and jail them until they comply with lawful orders.

Your objection seems to be that crooked prosecutors who desire to convict persons they know to be innocent might be able to get away with it. If they are willing to risk losing their jobs, their license to practice law, and possibly their freedom, then yes, I suppose they might do it. It is hard to imagine the case, though, where a prosecutor would be willing to risk all that to convict someone he knows is innocent. I suppose I can imagine a case where a prosecutor firmly believes the defendant to be guilty, and doesn't want to see him go free, despite his legal obligations to disclose evidence; but it is hard to imagine a prosecutor in possession of evidence as powerfully exculpatory as you describe who would want to go forward anyway. They don't get paid by the conviction, so why work so hard to convict an innocent person if you've got a solid, defensible reason to get one more case off your desk without having to go to trial?

Anonymous said...

The prior statements of witnesses, and police reports are available if the witness testifies. Note the phrase "subsequent to testifying."

Everything in that order is pretty much a given. My office policy is open file. The main reason for that is because if the defense and defendant know I have a good case, they are more amiable to a plea. If I have a huge hole in my case, the defense lawyer will point it out and we work out the options from there.

You people don't seem to have any basic understanding of criminal discovery and the entailing responsibilities. The CCP says almost nothing about discovery, and the law has been developed through caselaw and the Crt. Crim. Appls.

While this is the first time I've seen such an order, I'm not shocked. If it were new or unusual stuff, she'd have been shut down long ago.

Anon 8:28

Anonymous said...

Sounds like black robe disease. I'll do whatever I want, regardless of the law.

Anonymous said...

Hate to burst the Judge's bubble, but this form is not new. It has been used in many counties and it has been used by judges in my county for over 10 years. It is simply a compilation of discovery obligations and laws put into one document to save the time it would take to rule on a lot of different motions.

See the first paragraph. Items 1-14 only apply to the state. The order does not obligate the defense to do anything except provide the name of an expert winess; only number 15 applies to the defense.

Anonymous said...

Judge Criss is practically leaving the 212 district court in Galveston a landmark before her trip to the Supreme Court.

Every time I turn the my head Susan Criss is doing something to improve justice in the court room.

What's next Judge Criss?

Anonymous said...

Finally, some confirmation. I have trying to get to the bottom of all the hearsay surrounding Yanez' claims to have Top Democrat support. Thank you Victoria