Tuesday, February 19, 2013

Defense disclosure the sticking point in 'reciprocal discovery' bill

The Texas Tribune has a brief article describing legislation filed by state Sen. Rodney Ellis and Rep. Joe Moody related to "reciprocal discovery" in criminal cases, i.e., what evidence each side must give to the other before trial. Most court watchers agree the state has obligations to disclose potentially exculpatory evidence to the defense, though DAs differ from county to county have widely different definitions of what constitutes an "open file" policy.

In the past, the sticking point has been opposition by the defense bar to the "reciprocal" aspect of the bill, believing the practice abrogates the defendant's Fifth Amendment right against self incrimination. The burden of proof is on the state, the argument goes, and the defense is not obligated to put on witnesses or evidence at all. Meanwhile prosecutors have vehemently opposed codifying an "open-file" policy without the defense giving up something, too - hence "reciprocal discovery." The result has been a years-long stalemate. Here's a summary of what would be required of the defense under the filed bill (see the bill text):
  • Written or recorded statements from witnesses the defense intends to call at trial,
  • Any criminal record history of defense witnesses, if known,
  • Any physical or documentary evidence the defense will present at trial, giving the state an opportunity for independent testing upon a showing of materiality by the state,
  • Names of witnesses who will testify, addresses of some,
  • Any report prepared by an expert witness who will testify,
  • Prior notice of any alibi defense, including location and witnesses.
I'm not a lawyer and would be curious to hear the views of those who are, but the first three wouldn't particularly bother me. In most cases there likely will not be written or recorded statements of witnesses, only privileged attorneys' notes. This is not civil court and criminal defense lawyers do not generally depose witnesses. Criminal history information is already available to the state. And the physical evidence won't change just because it's disclosed. Similarly, I'm not particularly troubled by the suggestion that expert witness reports be shared before trial.

The fourth and sixth bullets, though, are where I've heard the most complaints from defense counsel when this bill came up in the past. Specifically, there's a concern that prosecutors or the police will engage in witness intimidation, threatening alibi witnesses or others scheduled to testify for the defense.

Another, broader complaint I've heard is that reciprocal discovery fails to take into account how trials actually work and the way defense strategies may change over their course.  E.g., imagine that a defendant knows of a witness whose testimony might help his or her case, but the initial defense strategy was simply to put on no witnesses and force the government to prove the elements. Then, during trial, the testimony of a prosecution witness turns out to be particularly devastating and the defense strategy changes. If they then call a witness they hadn't previously disclosed, will they get dinged over it by the courts? Will the witness be allowed? ¿Quien sabe?

Finally, the draft bill seemingly would require disclosure of witnesses that may be called to impeach government testimony, something even federal reciprocal discovery rules do not require. And even in the federal system, the distinction between impeachment evidence and an affirmative defense can be fuzzy, as in the case of an eyewitness called to rebut assertions by a state's witness. Some evidence may be used for either impeachment or non-impeachment purposes, and the distinction may not become clear until events at the trial begin to unfold.

For those reasons I tend to sympathize with defense critics of this bill, but also think that the need for open-file legislation is so great that, if it were me, I'd be willing to compromise. Making the defense disclose all witnesses, including impeachment, is way too broad. But having them disclose witnesses related to any affirmative defense, like an alibi or insanity, strikes me as a more reasonable, modest suggestion that would cause fewer practical problems. I don't know whether prosecutors would think that's enough (somehow I doubt it), but make me Philosopher King and that's how I'd split this particular baby.

We've been round and round these debates for too long. With all the focus on the issue following the Ken Anderson court of inquiry, the issue of open files is ripe for legislative action. It'd be a shame if Texas passed up the chance to require them by allowing the perfect to become the enemy of the good.

CORRECTION: This post incorrectly stated that the bill could require disclosure of impeachment witnesses, but in fact it only requires disclosure of witnesses the defense intends to call at trial. Grits regrets the error.


Anonymous said...

If you believe that a trial's primary goal should be a true and accurate verdict then there should be reciprocal discovery. No gamesmanship on either side, just a search for the truth.

Anonymous said...

Then anon 11:12, if true fairness is what we are after, shouldn't the defense also have access to all the same resources the DA's office has - investigators, police officers, lab testing, etc?

Texas Maverick said...

Prosecution has investigative power and funds not always available to defense - so they should show all cards to the defense and the court, not just pick out the pieces that support the guilty theory as is shown in Ken Anderson's actions. I agree with 11:12 truth is the primary goal. If the verdict is guilty, then reciprocity would influence the punishment, not the verdict.

Ryan Paige said...

During that whole Duke Lacrosse thing, the District Attorney there brought bogus charges against an alibi witness and had two detectives sit (in uniform) on the front row for every day of his trial. The jury still acquitted, but I can imagine that a lot of witnesses would have gotten the message earlier and made a deal to lie for the prosecution.

My fear on reciprocal discovery is that prosecutors will use it to hammer defense lawyers if they inadvertently leave something out (sort of like how John Bradley went after an inmate for felony perjury after he attempted to get DNA testing in a case the inmate had pled guilty to).

Given that there's no punishment now for prosecutors who willfully violate the laws and canons of ethics that are already on the books, I think a reciprocal open file policy will exist only to punish defense attorneys.

Prosecutors will still Ken Anderson their way out of punishment (or no charges will ever be brought).

The problem isn't the lack of an open file policy, per se. Honestly, there should be nothing useful in an open file that isn't already required to be disclosed under current law.

The problem is that prosecutors don't follow the law we already have. And without a punishment with teeth that actually gets enforced, prosecutors aren't going to be any more open even with an open file policy.

Gritsforbreakfast said...

11:12, the goal of a trial is not simply "a true and accurate verdict" but also to ensure that a verdict is reached in a way that does not violate the defendant's constitutional rights, including the Fifth Amendment. Your argument makes sense as long as one ignores that obligation of the courts, but it's an extremely important one.

Ryan, did you look at the list of what prosecutors would disclose under the bill? Perhaps I'm wrong, IANAL, but it looks to me like significantly more than they're required to give up now.

Anonymous said...

Grits: "the distinction between impeachment evidence and an affirmative defense can be fuzzy, as in the case of an eyewitness called to rebut assertions by a state's witness."

Believe it or not, sometimes the same can be said of Brady material or exculpatory evidence. In many instances, without knowing what the defensive theory is, the prosecutor has no way of knowing the importance of some evidence in their file and how it might tend to exculpate the defendant (especially on alibis or self-defense).

@Texas Maverick and 12:26--while the prosecution may have the most resources, the defendant has one thing even more important: firsthand knowledge of what he really did or didn't do.

In my opinion, I think 11:12 is right on the money. It's hypocritical for the defense bar to decry prosecutors actions in obtaining wrongful convictions, but now they don't want to have to give up evidence early in the process which might show the prosecution that they need to proceed in another direction. It's way past time for the defense bar to put their money where their mouth is. If we're going to really try to reduce the number or wrongful convictions, then let's have a real dialogue where both sides work together toward that end. If this legislation is nothing more than another opportunity for the defense bar to make their work less difficult and the prosecution's job more difficult, then there's not point in even having this discussion.

@Ryan, how did I know that sooner or later this whole reciprocal discovery discussion would turn into nothing more than another excuse to bash prosecutors. Get over it, dude. At the end of the day, we as a society entrust prosecutors with the responsibility of doing that which we are unwilling to do ourselves. If you really think all prosecutors are so evil that we need a whole set of penal laws to punish the bad ones, then why don't we just change our entire system of justice and not have prosecutors? I'm sure all the guilty criminals will come forward, confess their crimes, and voluntarily check themselves into prison! Problem solved.

Gritsforbreakfast said...

5:02, I'm well aware of that aspect of Brady. The difference is it doesn't violate anyone's constitutional rights to require prosecutors to err on the side of greater disclosure. Defense counsel, by contrast, have a different charge than you do.

Your comments to Ryan are telling in their paranoia and absurdity. No one but you called prosecutors "evil." Try to argue against what's actually written instead of making up red herrings.

Anonymous said...

5:02 said "let's have a real dialogue where both sides work together toward that end"

So now you want to get rid of the adversarial system so that both sides can "work together"? Seriously, did you actually attend law school?

Anonymous said...

@5:02, if prosecutors had to suffer for their transgressions, they would be more careful about violating defendant rights in their zealous pursuit of convictions at all costs. Of course, not all prosecutors are bad, but their are enough to be noticeable, and their bad acts are pretty heinous.

Anonymous said...

"Believe it or not, sometimes the same can be said of Brady material or exculpatory evidence. In many instances, without knowing what the defensive theory is, the prosecutor has no way of knowing the importance of some evidence in their file and how it might tend to exculpate the defendant (especially on alibis or self-defense)."

That sort of mealy-mouthed crap is what prosecutors always resort to. That's like the shoplifter saying, "well, I thought that stuff might have been mine, not the stores." Or, the child molester, "well, there was just no way to know for sure that she wasn't 18." Or, the burglar saying - "that could've been my house, no way to know for sure." You get the idea.

Nope, despite what some want us to believe, in all these cases of wrongful convictions where evidence has been withheld, it was clearly exculpatory and it was intentionally withheld. Just look at Ken Anderson's testimony to see how warped the thinking of some prosecutors is. (Yes, there are a lot of good ones, they aren't all bad).

Next, how does the defendant's knowledge of what he did or didn't do compensate for the imbalance in resources? What the defendant knows is meaningless, its what he can prove. And, because defendant's are presumed guilty until and unless proven innocent, the burden of proof is on the defendant. Shouldn't the party with the real burden of proof (this thing about the prosecution having the burden is a nice idea, but its' not reality) have at least the same resources as the other side?

A prosecutor defending the unethical practices of his colleagues (yes, that is what you were doing with the mealy-mouthed Brady comments) calling defense attorneys "hypocritical" is...well...quite hypocritical.

A dialogue on reducing wrongful convictions would be great. The problem is, prosecutors deny the problem. Just look at the report that attempted to minimize prosecutorial misconduct. Until prosecutors will admit that this is a problem, any dialogue will be a waste of time.

"At the end of the day, we as a society entrust prosecutors with the responsibility of doing that which we are unwilling to do ourselves"

First, there is no shortage of prosecutors, that I'm aware of, so I don't think its a job that people are "unwilling" to do. It ain't really a bad job. Decent salary, good benefits, job security, you have the easy side of the case because most defendants are actually guilty, lots of resources at your disposal.

You got the part about society "entrust"ing prosecutors right. Unfortunately, that trust is too often violated.

GalvestonLawyer said...

Another aspect of this is that sometimes it appears that prosecutors are doing the old relativist shuffle of "framing a guilty man"--they rationalize their misconduct by believing that they are protecting the larger population from a "bad person", etc. Problem is--that's not our system. The prosecutor is charged with bringing criminal charges against offenders (with the prime directive of prosecutors always hanging over them--seek justice not convictions). I as the defense lawyer have a different duty and obligation. My job is NOT to prove my client innocent--it is to make sure the state overcomes many required hurdles before they can punish my client. In that regard, I'm not just defending the accused--I'm defending the integrity of our system of ordered liberty by acting as a check on state encroachment of our common bundle of rights and liberties. Similarly, when a defense lawyer stands in the dock defending a client, he or she is not just protecting that client--but is in fact protecting the free citizenry's rights and dignity.

In the context of disclosure/Brady/Kyles -- I had a classic Brady situation last week - a report of DNA/Serology testing done on my client which on its face cleared him of having any DNA on the vic of a sex asslt of chile. Problem is--it seems the lab mixed up the samples of the 2 complainants, reflecting, at the very least, sloppy procedure. Oh yeah--did I mention the destruction of the only legitimate DNA testing items? The underwear, bathing suits, clothing of the D, and Vic 1 and Vic 2. Gone. Over a year ago. With not even a peep to the D that these things exist and were available for independent testing Suppose there were semen evidence of an altogether different person? That's the way Brady works and prosecutors miss. If they don't see the potentiality of something having the possibility of being exculpatory, then certainly this defense lawyer hasn't spotted something you missed, etc.
As an example--last week the prosecutor (and the other prosecutor with the black dress)expressed a belief and based their whole argument against suppression on the fact that because there was no bio evidence of client found in any of the tests, I have no grounds to complain. Again--suppose the lab only tested the complainant by comparison to the sample extracted from D. Now what if that "other dude" unknown to police or defendant left DNA but it wasn't the DNA being tested for placement at the scene? So the chemist, in a classic blindered bureaucratic move didn't bother with developing any evidence from any person not on the sacred "submission form" submitted by the state or its police personnel.

GalvestonLawyer said...

[cont]so now the best evidence of an alternate causation has gone down the drain with the rest of the items they destroyed in an apparent violation of the provisions of CCP Chapters 60 & 62.

I was told by a salty old criminal defense lawyer once that if a lawyer representing the accused can't handle having grievances and being called ineffective on a writ-then he [or she]should go into a different line of work.

Anonymous said...

Oklahoma has reciprocal discovery. Why not talk with some of the public defenders and DA's in Oklahoma County for instance and ask them how they think it has worked. It IS better in my opinion for the defense bar than what Texas has.

Anonymous said...

47 other states and the feds have some version of reciprocal discovery. I'm finding it very hard to believe that all of these other systems are violative of the the defendant's Sixth Amendment rights. Seems to me that the pro-criminal element which frequently comment on this blog need to get on board with the this plan. Otherwise, they are just being obstructive and revealing their true motive: to make it easier for guilty criminals to get off. I don't think the law abiding public in Texas is going to be very sympathetic toward that position. JMO.

Brandon W. Barnett said...

This issue is one of the main reasons I'm glad that I practice criminal defense in Tarrant County. The DA's office gives you everything and they don't generally delay. Other counties make you pry open their files for discovery.

DLW said...

Until I have a track record with a particular prosecutor I am hesitant to tell him where I think his case is weak. This will come up often in criminal cases where there is an issue regarding the legality of a stop, detention, arrest or search.

With a certain subset of prosecutors what you find is that when you tell them what is wrong with their case, the next thing you know the police officer is changing his report that he made shortly after in the incident. The change is always to add something that wires around the problem with the legality of what the officer did.

Most DA's won't engage in that or allow their officers to do it. We learn the ones that will and just never tell them anything. I don't won't to be forced to tell one of the cheaters where his danger lies because I don't want the cop to learn about it and change his version of how the case went down.

When a cop does that the Judges can, and often do, pretend to believe the new improved version of the "facts".

Marti said...

I'm a Florida PD (Miami-Dade), and we have reciprocal discovery requirements similar to the ones that appear to be up for discussion (disclosing alibi, listing witnesses, turning over evidence to be introduced at trial). We also have depositions by right in felony cases (and for good cause in misdemeanors). I haven't practiced (as more than an intern) under different conditions, so I don't yet have a good comparative perspective, but I do not have the impression that our discovery obligations are particularly problematic. I would definitely keep them if it meant having more open access to the prosecution's files (and keeping depos).

Anonymous said...

All this discussion about reciprocal discovery is great. There are good arguments on both sides. But, how does that stop prosecutors from hiding evidence. Prosecutors have successfully used this issue of reciprocal discovery to distract from the issue of prosecutorial misconduct. You can see why most DAs are very good politicians. Its good that this stuff is getting talked about but its incredible that there have been no bills introduced (please correct me if I'm wrong) that address absolute immunity. That is where the problem lies and where the focus of the discussion should be. Now, prosecutors have commented here about the need and benefits of a dialogue on reciprocal discovery. But, what do you want to bet they have no interest in a dialogue on absolute immunity.

(Btw, I always find it funny that those who defend and minimize CRIMINAL behavior on the part of prosecutors attempt to label those who want to stop this CRIMINAL behavior as pro-criminal. Seems to me that those defending the CRIMINAL behavior of prosecutors are actually on the pro-criminal side).

Anonymous said...

"Otherwise, they are just being obstructive and revealing their true motive: to make it easier for guilty criminals to get off."

So, does that mean that, with your comments, you are being "obstructive" and revealing your true motive to continue to allow prosecutors to cheat. Maybe you want to protect your own actions. Who's the criminal?

Anonymous said...

I can't believe you have bought into the prosecutor strategy of offering to do something totally reasonable if the other side does something ridiculously unconstitutional. You're Edmond's best friend today.

Anonymous said...

So let me get this straight. Judging by the tenor of these comments Texas prosecutors seem willing to change the law to require more disclosure than the law currently requires, and the criminal defense lawyers are whining about having to disclose anything. Wonder who's going to win that battle in the court of public opinion.

Anonymous said...

Anon. 1:01 - we already have laws on requiring prosecutors to disclose exculpatory evidence. Yet, prosecutors willfully and intentionally violate those laws. What do you propose to prevent this illegal behavior? Is reciprocal discovery the answer? How will requiring the defense attorney to turn over info stop a prosecutor from hiding evidence?

Thomas R. Griffith said...

And now for something completely different. Notice I’m not addressing the chain yanker.

With the creation of this bullshit bill, I have to ask whose pockets these two are in. If it passes, I'll advocate changing the Texas Hold' em Rules.

Everyone including the Dealer has to show their cards to the Player on their left. If you think you won the hand, you must provide the Dealer with the names & addresses of your family members so the House can check to see if they have any Outstanding Traffic Warrants. What a crock.

Anonymous said...

"who's going to win that battle in the court of public opinion."

Spoken like a true politician. To people like that, its not about doing what's right but its about what you can make people believe. As long as you can keep them focused on defense attorneys, they will forget all that pesky withholding of evidence issue. Unfortunately, you can fool most of the people most of the time.

So, let me ask you Anon 1:00, if you can persuade the court of public opinion that there should be reciprocal discovery, how does that prevent prosecutors from cheating? If successfully distract the court of public opinion from focusing on the unethical and illegal behavior of prosecutors, aren't you aiding and abetting that unethical and illegal behavior. I ask you again, who is the criminal?

Thomas R. Griffith said...

Grits, take it from someone that’s personally had the opportunity and / or misfortune to sit at the Defense table. I can tell you first hand that this crap is already taken care of via the filing of Pre-Trial Discovery Motions & Pre-Trial Hearings & Pre-Trial off the record conversations.

While everyone knows well in advance (120 days to be exact) what’s what (and GUILTY or NOT, if the Defendant is on probation prior to arrest on a new unrelated charge), they even know how much time the Defense Attorney / Lawyer is willing to TapOut his / her client to.

The problem arises when the Judge ignores the Motions by leaving the Court's ORDERS’ form completely blank AND the Defense continues to file READY for TRIAL notices. When a felony jury trial is allowed to commence despite the Motions being ignored & is stopped to plea bargain at lunch recess because the Defense tells the client "take the plea you are going to prison just for being on probation" - you get a great state of confusion aka: Texas vs. Griffith.

Then there’s the whole 97 % +/- Plea Bargaining 10 foot pole and FAKE CDLs being allowed to represent and secrete Grand Juries that no one wants to un-stick.
It’s a crying shame Senators, State Bar & Taxpayers don’t demand the addressing of the flaws, loopholes & hurdles preventing the players from playing fair by utilizing the Rules already in place. Until then, we are stuck in an era of state sanctioned court room corruption that prevents jury trials to verdict and promotes Plea Bargaining with the innocent. Thanks.

Anonymous said...

So Sen. Rodney Ellis (who's on the board of the NEW YORK INNOCENCE PROJECT and is buddies with Barry Scheck) has filed one of the mutual discovery bills referenced in Grits' post and the criminal defense attorneys and pro-criminal crowd commenting on this thread are taking pot shots at HIM???? You bleeding heard liberals are nothing but a bunch of effing cannibals! Talk about eating your own! Good grief, Grits! Some people will bitch about anything!

Anonymous said...

Pro-criminal = wanting to protect those who break the law from any accountability.

Example of a pro-criminal peroson: Someone who wants prosecutors to be able to continue to violate the laws with no accountability.

Anonymous said...

I practice in Oregon. We have had reciprocal discovery for many years. I must disclose evidence I expect to use in defense. I would also not that we have a case saying a prosecutor's notes of interview with a witness is discoverable. I also suspect our DAs are less prone to trying to hide the ball.

Anonymous said...

A defense attorney SHOULD NEVER have to give discovery to a prosecutor. If the state issues charges they have the burden of proof. A defendant has no obligation to even put on a defense much less talk to prosecutors. And as an ex prosecutor I would add that any prosecutor should know that and shouldn't be whining that they shouldn't be subjected to unilateral discovery. Rarely does a defendant come even close to having access to the investigators and experts comparable to those at the DA's beck and call. (Although many of those DA experts have been found to be unreliable to the point of falsifying reports.)The system is usually stacked against a defendant at the beginning. This is not a football game where everyone starts on equal footing. The least a DA can do to try and be fair is have an open-file policy and stop complaining about their Brady obligations.

Thomas R. Griffith said...

Hey tick tock aka: 4:15 PM, -

You hit the nail directly on the head and from the shadows. Despite being bipolar or just retired, you make perfect sense for once. Senator Ellis & Rep. Moody have sold out the I.P. and tarnished their names forever.

They are F-cking sell-outs & when one of the so-called criminal justice system reformers switches sides, we the Real CJS reformers & VOTS won't let it slide.

In closing, this is the Gritsforbreakfast Blog and if you think that's "bitching" you need to stick around we are just getting started. But, as a regular chain yanker that gets a kick out interrupting the grownups, you knew that.

Thomas R. Griffith said...

Damn, 9:40 AM that's the kind of Comment one should be proud of enough to leave under your real name. I want to meet you and shake your friggin hand for you seem to get it and deserve recognition & respect.

When you said - "The system is usually stacked against a defendant at the beginning." I assume you were referring to the: so-called in custody interview (where - "you don't need an attorney if you are innocent") & secretive one-sided Grand Jury joke that forces the public to participate and vote with absolutely no input from the Defense.

Keep up the good work in all that you do and consider using your real name (so we can refer you), and we need to publically recognize true and honest public servants as much as we need to spank those that act out like the jerk up at 4:15 PM. Thanks for your service and I look forward to meeting you in person.

Skifool said...

Have to agree with 9:40 here. The State has the burden of production and proof. I oppose full disclosure by the defense. Don't tell me that a good prosecutor can't figure out the defensive theories ahead of trial -- if not, the prosecutor should be sent to Appellate Division for awhile to learn some real law.

That said, there is an aspect of Brady that seems to be a "gotcha" for prosecutors -- after the trial, the appellate courts decide whether a particular piece of evidence "would have been admissible," which means the prosecutors have to do enough research and make an educated guess on certain evidence, before trial and before the judge makes any ruling. Another issue decided by appellate courts is whether the defense was aware or should have been aware of the so-called undisclosed evidence. Was the evidence made public in some way (such as the newspaper), and was the defense attorney derelict in his/her investigation? No one seems to point out, in all the haste to prosecute the prosecutors, how complex the Brady requirements are.

Anonymous said...

2:06 - the concerns you raised are easily addressed by prosecutors themselves.

1. When in doubt - disclose.
2. Open file policy.

What is the reasoning that justifies withholding even inadmissible exculpatory evidence. Such evidence, if disclosed could lead to admissible exculpatory evidence. Just disclose it all. Problem solved.

And, of course an open file policy would obviously address your concerns.

Why is it prosecutors like Ken Anderson think that disclosure makes them a "bad prosecutor." It seems to me if a defendant is really guilty and the police have done their job of investigation thoroughly, a "good prosecutor" should be able to disclose everything and still win. It seems that prosecutors must be insecure about their abilities if they feel they need to hide anything.

Additionally, in these cases where we have seen the withholding of evidence result in wrongful convictions, these weren't close calls. Prosecutors aren't withholding this stuff because they think it doesn't fit Brady. They are withholding the stuff so they can win. Its that simple.

Anonymous said...

If the police did a thorough investigation and the prosecutors have properly followed up on that investigation, there should be no need for them to obtain anything from the defense. But, what we see time and again is that the police do sloppy investigations and prosecutors fail to question anything. (The Kerry Max Cook case is a perfect example. Even today the DA refuses to question the initial sloppy investigation work). When we here calls for more money for law enforcement its always about adding officers or getting new equipment or technology. But, maybe we should look at the qualifications of the officers doing these investigations. Many of these "investigators" barely graduated from high school and sat through a few college courses so they could become a police officer. Then, after a few years they become and "investigator." We entrust this job that can lead to a person losing their liberty to someone with little training. Here's what I propose (yes i know it won't happen): We should require that officers investigating any felony crime have a masters degree in science or some other discipline that requires them to engage in rigorous analysis (criminal justice won't work - its a useless degree like Psychology and Social Work). If we can improve the quality of the investigation work, we will have fewer of these cases where innocent people are brought to trial and convicted. We should focus on getting the right person in front of the jury from the beginning. Then the prosecutors need to look at each case with initial skepticism and be willing to question things instead of just charging ahead based on a sloppy investigation.

Anonymous said...

There are no "gotchas" in Brady for prosecutors. The only "gotchas" exist when they try to find a way around Brady.

The admissibility issue is just another lame excuse to try to hide evidence. Think about it: If its not admissible and you're worried about a "gotcha" later, why not turn it over. If its really not admissible then it won't hurt your case, will it? So, just turn it over. No "gotcha" there, is there? There are only 2 reasons not to turn it over. 1. You're not really sure its inadmissible in which case you're obligated to turn it over. 2. You're afraid it may lead to admissible information. In that case, not only are you ethically obligated to disclose it but, because your first responsiblity is to justice, you have an obligation to follow up on that lead.

I really can't see how the admissibility thing is a problem unless you are trying to hide something. Who is supposed to decide what is admissible? The judge, right? So, why as a prosecutor are trying to usurp the court's authority there? If you just stop trying to play those games and turn it over, you don't hae anything to worry about. If it is inadmissible, what's the harm?

Anonymous said...

I swear, to hear all of you bleeding hearts, you'd think crime rarely occurs and there are NEVER any real victims. Unfortunately, crime still happens all too frequently and innocent people are murdered, robbed and raped. Whatever reasources the government might have, very rarely can it restore what the victims have lost. It's the criminal who has the power at this stage and a helluva lot more rights than the victims! But then again, I don't really expect all of you ex cons to give a rat's a$$ about victim. Believe it or not, the prisons are full of guilty sociopaths who need to be there. And guess what, some hard working, underpaid Texas prosecutor put them (and likely several of you) there. Yes, I do amuse myself by reading some of these hysterical comments. I expect many of the same sentiments are frequently expressed on the prison rec yard. But ultimately, I remind myself, that the views of most posters on this blog represent the views of an infinitesimally small percentage of the people in this state. I know it drives you liberals mad, but this is still a law and order state. The system may not be perfect, but our courts and juries get it right in an astronomically high percentage of cases. That one reason the death penalty still enjoys huge public support here. The prosecutors aren't the ones whining on here. That's because they're busy doing exactly what the public expects them to do, taking criminals off the street. God Bless Texas!

Anonymous said...

Anon 6:51 - a couple of observations. First, I find interesting that, in your hysterical rant, you attempt to use victims to justify illegal and unethical behavior. If the police and prosecutors do their jobs properly, the victims will get justice. If, on the other hand, they cheat, the result may not be justice. Just look at the Morton Case - he was a victim. Did he get justice? Where is your concern for him? Mr. Baker was also a victim. Did he get justice? Where is your concern for him?

Second, I find it interesting that you invoke God's blessing at the end of your rant. Have you ever read what his word says about prisoners? Maybe you should. Wasn't Jesus labeled as a criminal also? Isn't that why he was executed?

Matthew 23:23 “Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth of your spices—mint, dill and cumin. But you have neglected the more important matters of the law—justice, mercy and faithfulness. You should have practiced the latter, without neglecting the former. 24 You blind guides! You strain out a gnat but swallow a camel.

Gritsforbreakfast said...

"The prosecutors aren't the ones whining on here."

No, they're whining here.

Anonymous said...

Hey 6:51,
It seems you only care about some victims, not others. Michael Morton, Anthony Graves, Kerry Cook, and many others like them are victims. But, I don't here any concern for their rights. In fact, if you think about it, the Innocence Project is standing up for victims that prosecutors refuse to stand up for. Prosecutors would rather protect those who have violated the law than stand up for these victims.

I can't help but wonder, are there other classes of victims that you deem unworthy of your protection? Maybe victims of certain races or socioeconomic status. Just asking.

Anonymous said...

The majority opinion is that admissability is only a factor in determining the materiality element of Brady. Only the fourth federal circuit says that it is dispositive alone. Inadmissable information can often lead to admissable evidence which could change the outcome of the proceeding. The 1,2,3, 6 and 11 federal circuits all have cases on point that admissibilty is only a factor. Keep it simple stupid if you look at some information as a DA and you say to yourself I hope the defense doesn't see this...the best practice for a minister of justice is to turn it over. On ther other hand you could be like Anderson and Bradley and just hope you don't cost an innocent person many years of freedom or even their life. Even where you are right and the defendant is guilty you are doing a disservice to the public when you ignore LEOs who violate rights. You can't be the good guy when you let them withhold evidence that invokes the exclusionary rule. Good guys don't let civil rights violators continue their bad acts in the name of getting bad guy at the expense of the rest of our rights. Better for 10 guilty to go free than 1 innocent suffer conviction. You will get the guilty ones next time. No need to break the law to get them off the street.

Rinkevichjm said...

I would suggest that the only penalty that should be allowed if a defense fails to provide reciprocal discovery is a loss of the right to a speedy trial.