Thursday, March 18, 2010

Tarrant electronic discovery seen as gold standard

According to the Fort Worth Star-Telegram:
A state panel studying ways to reduce wrongful convictions in Texas seemed to find what it was looking for during a visit to Tarrant County this year.

After reviewing the district attorney's open-file and electronic discovery system, Mary Anne Wiley, deputy general counsel for Gov. Rick Perry, offered one of several superlatives uttered by panel members.

"This sounds like a slam dunk," Wiley said.

Advocates of stronger open-discovery rules hope the Timothy Cole Advisory Panel on Wrongful Convictions will help lead Texas lawmakers to finally push through uniform statewide policies.

Some point to Tarrant County's system as a model for the state.

"Tarrant County does seem to be the gold standard," said Barry Macha, a panel member and Wichita County district attorney. "It's state-of-the-art, the best system I have seen. Personally, I think it's the direction we ought to go."

But the electronic system comes with a price tag, and some prosecutors remain leery of mandated policies, concerned that sharing certain information could put witnesses or victims at risk or give too big of an advantage to guilty defendants at trial.

In many states, prosecutors are required to turn over discovery documents -- such as police reports, witnesses' names and statements -- to defense lawyers long before a case goes to trial.

The rules are designed to ensure that defendants get fair trials and accurate verdicts.

But in Texas, defendants have few discovery rights and are often at the mercy of the policies of the jurisdiction where they were charged. They must file court motions requesting information that may not arrive in time for thorough review.

This approach landed Texas on the list of states "desperately in need of discovery reform," according to the Justice Project, which promotes fairness and accuracy in the criminal justice system.


Anonymous said...

What type of "discovery" information do criminal defense lawyers have to provide to the prosecution in Texas? Do they have any obligation to identify their witnesses, turn over incriminating evidence, etc.? Just wondering.

Gritsforbreakfast said...

Pretty much none, as I understand it. It's the state's obligation to present incriminating evidence. There was a "mutual discovery" bill kicked around in the Lege over the last few sessions, but it never went anywhere. said...

The Tarrant County system is indeed brilliant. I have worked in the legal field in Lubbock, Fort Worth, Dallas, and now Williamson County. I clerked with the Tarrant County District Attorney's Office while in law school and can say they are almost a paperless office. It's very well setup and much more efficient to issue laptops to the prosecutors and free the support staff from constantly shuffling boxes of paper files around every day. This tsunami of paperwork is what slows most courts down. Dallas County is a good example of the limitations of sticking with a paper-only system. It creates all kinds of kinks and snags in the back-office that slow down the system, prolonging cases, swelling dockets, and mushrooming costs.

Tarrant scans in everything and has one central department set up to do that. Post-it notes convey where the scanning department is to save the scanned information and whether or not it's privileged work-product (and thus not open to the defense attorneys). In Lubbock, they have a copy room next to the discovery department and the Lubbock Bar Association provides a copy machine in that room. Lawyers can get a low-cost (5-10 cents per page) copy card to use the machine. Walk-ins have to pay 25 cents per page. Williamson County Attorney provides a free copy of discovery info to court-appointed attorneys, but hired attorneys have to pay for it per page. Travis County scans in a lot of information, but I don't have enough exposure to that office to comment.

Discovery for a case can be anywhere from 10-30 pages for misdemeanors and more for felonies. Multiply that by how many cases run through a court system and you see the paper, machine, and toner costs. Scanning would eliminate a lot of costs (especially since most reports are electronic anyways and thus keeping them electronic saves an initial print cost as well as copying costs further down the line). To those DA's that say copies are expensive, most newer copy machine have a "scan and email" setting that sends whatever it is you're copying to an email address you enter on the machine. That same step where workers are copying files for defense attorneys can be used to scan rafts of documents, with little to no difference in their current setup other than the expense of a new copier and it's connection to the building's computer/intranet/internet system.

The next frontier is to include police videos and 911 call recordings in electronic form. Prosecutor offices usually put these on CD and either have the defense attorney pay $5-10 per disc or bring in a blank disc in exchange for the one from the case. I would like to see these electronic files part of the electronic discovery package in the future.

To Anonymous 9:50am, Defense lawyers don't have to provide anything to the state. Under the Constitution, it's the State's burden to convince a jury that the defendant is guilty beyond a reasonable doubt. The defendant is innocent until proven guilty. The defendant doesn't have to take the stand (5th amend) in his defense. A completely valid (but highly risky) defense is to sit silent and just say to the jury, "make the State prove it! They can't do it beyond a reasonable doubt!" Thus, it's up to the State to provide all the evidence. The reason they have to turn anything over at all goes back to Brady v. Maryland, 373 U.S. 83 (1963). Since your average defendant doesn't have his own SWAT, Police, Detective, or Forensics departments dispatched to the scene of the crime to do his own investigation along with the State's units, it's fair play to expect full and open disclosure of anything those State agencies discovery about the case.

Scott Stevens said...

The District Attorney in Bell County (Temple, Killeen and most of Ft. Hood) requires defense attorneys to agree not to talk with witnesses without giving notice to/getting permission from the ADA assigned to the case. Defense attorneys reactions to this range from taking the discovery and ignoring that requirement to investigating the case independently and only then getting the "open file" discovery, to doing entirely without discovery.

And while their policy says you can specify any non-work-product portion of the file you want copied, in reality, one is normally just given a copy of what the prosecutor tells his assistant to copy and never get to actually see what is in the file itself.

There have been numerous problems with police report supplements and even confessions (oral and written) that were suddenly "discovered" just prior to or even during the trial. "Oh, the police never gave me this, but they just today gave me X document that I didn't know about before."

The Bell County Attorney's Office (misdemeanors) allows the BCDLA to maintain a copier in the County Attorney's law library and gives the files to the defense attorneys to copy for themselves

In McLennan County (Waco) one may view the file and make notes in the DA's office, but may not type them or write them verbatim, or use a portable copier or scanner to input them into one's computer.

In that county, there is also subterfuge, as I have personally seen an investigator there remove a thin file from a large file folder and say, not knowing I just saw that maneuver, "Here's the file. That's all we have."

In Coryell County (Gatesville & Copperas Cove--west of Waco) one is allowed to copy for oneself all the file except work product. One must provide paper occasionally to offset the use of the DA's paper, but there is no charge. Sometimes they provide all the discovery already copied themselves, but one can always go and look at the file for oneself. normally, 30 days out from trial a list of witnesses, 404(b) material and a complete copy of the file is provided.

The system in Gatesville and the misdemeanor system in Bell County are the best I've seen. They are both very good. Open file discovery should be complete, except for work product, or instances in which there is a specific danger to an alleged victim or witness in a particular case. There should be sanctions for not producing ALL the discovery in a timely manner.

Anonymous said...

Please help me understand. My attorney in a misdemeanor class b case says he was not allowed to copy the police report but only take notes. Can he obtain copies of the police report through pretrial discovery motions so that I can see the police report too?