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.

I'm a big fan of what Tarrant has done for a variety of reasons. While an electronic discovery system requires an up-front investment, "It saves a whole lot of money for the taxpayer," according to local officials and "is well worth it." The main problem: Not all Texas prosecutors agree with the open file policy in Tarrant and Texas law doesn't require them to do so. Again, from the Startlegram:

"It's very rare to find a prosecutor with an across-the-board closed-file policy," said Shannon Edmonds, director of government relations for the association.

But the definition of open varies.

"Down here in Travis County, you can get the files e-mailed to you," [Court of Criminal Appeals candidate Keith] Hampton said. "But go 30 miles up the road, and they are treated like state secrets. You sit there and write while somebody reads to you part of the offense reports, and you're left to wonder what else was in it."

Some counties allow defense attorneys to photocopy reports, he said. Others allow defense attorneys to view only certain reports and require them to take notes by hand.

Cost is often a factor, Edmonds said. It is not cheap to make copies of case information for all the felonies and misdemeanors handled by an office.

Obviously, making everything electronic eliminates the photocopying costs Edmonds is worried about, which leaves resistance by individual prosecutors and the initial cost as the main barriers, particularly when budgets are tight. Even so, there's little doubt that failure to turn over exculpatory evidence contributes to false convictions. Plus there's a cost-benefit argument to be made that a targeted state investment - perhaps of Governor-controlled federal grant funds to finance a statewide mechanism counties could opt into - would make the project a little cheaper overall thanks to economies of scale. I'm glad to learn the Tim Cole Advisory panel is looking into the matter.

Speaking of Timothy Cole, the Governor will be in Fort Worth on Friday for a signing ceremony for his posthumous pardon. Congratulations to Tim's mother Ruby Sessions, his half-brother Cory, and all his other family members who slogged a long, hard path to reach this joyful moment.