Friday, March 08, 2013

New version of reciprocal discovery filed in Senate

On the last day of bill filing for the 83rd Legislature, state Senators Rodney Ellis and Robert Duncan have filed a new reciprocal discovery bill, SB 1611, that imposes fewer disclosure requirements on the defense than the earlier SB 91. Find the press release below the jump.

Ellis/Duncan File Comprehensive Discovery Reform Legislation

SB 1611 will enact uniform reciprocal discovery requirements, reduce wrongful convictions

(Austin, TX)//Senator Rodney Ellis (D-Houston) and Senator Robert Duncan (R-Lubbock) today filed comprehensive discovery reform legislation which will create a fairer, more reliable and transparent and Texas' justice system.

Ellis and Duncan filed SB 1611, which will enact uniform discovery requirements in criminal cases across Texas.  Under current law, evidence sharing rules in criminal cases vary drastically from county to county, with very different rules in different jurisdictions.  SB 1611 creates uniform standards to ensure sharing of vital information in the discovery phase of trial is automatic and timely, which will help reduce errors and oversights that lead to wrongful convictions.

"It’s time for the law to have one set of rules in all counties and all courtrooms," said Ellis. "This reform legislation ensures that everyone is operating under the same standard, which will help us avoid some of the crucial errors that have led to too many wrongful convictions in Texas."

"In the name of fairness and justice this legislation is a step in the right direction," said Duncan. "Reasonable discovery reform is necessary to keep our criminal justice system efficient and effective. I look forward to working with Senator Ellis and stakeholders on this critical issue.”

The discovery phase of a criminal trial is vital to establishing the fairness and accuracy of the outcome. Yet Texas' discovery law has remained unchanged for more than 50 years, resulting in wrongful convictions, unnecessary pretrial battles and high taxpayer costs from appeals.  In fact, inadequate and improper discovery played a key role in the wrongful conviction of Michael Morton.  Mr. Morton spent 25 years in prison for the murder of his wife, but evidence not turned over to the defense at trial was crucial to his release and exoneration.

"I appreciate the hard work of Senator Ellis, Senator Duncan, their staff and all of the stakeholders who have come together to work on this important legislation," said Michael Morton.  "For the past year I have had one message for the Texas Legislature- transparency works.  This bill is a major step forward in providing that transparency. I look forward to continuing my efforts to bring about reasonable changes to help prevent what happened to me from happening to anyone else."

Wrongful convictions erode public trust in our criminal justice system. When the wrong person goes to jail, public safety is compromised, as in the Morton case, in which the true perpetrator committed another murder while an innocent father sat in jail.

SB 1611 will:

Solidify public faith in the courts. When all relevant information is not presented at trial, trust in the criminal justice system is undermined.

Save taxpayer money by reducing appeals and post-conviction litigation. When the state automatically provides relevant information to the defense, disputes over discovery issues will become less frequent in the state’s higher courts. Wrongful conviction and misconduct related post-conviction litigation will be reduced.

Make criminal trials across Texas more fair by ensuring consistency. Existing practices in discovery vary greatly across the state, from “open file” policies with electronic sharing to almost no disclosure. This inconsistency is inherently unfair and should be replaced by one clear statewide standard.

Strengthen and enforce discovery obligations of prosecutors, while also providing for some mutual discovery obligations from defense attorneys.  SB 1611 brings Texas’ discovery obligations in line with all 49 other states and the federal system.

By reducing wrongful convictions, the automatic discovery bill would likely save Texas millions. States that have assessed taxpayer costs of wrongful conviction place it in the hundreds of millions. Although Texas lacks thorough information on the costs, studies have found the total costs of wrongful convictions for Illinois to be $214 million over the past 35 years and the costs borne by California to be $129 million since 1989.

"SB 1611 is a major step forward to prevent future cases like Michael Morton's," said Ellis. "Ensuring all evidence comes to light, and that all the relevant facts are weighed, will improve the reliability of justice system. Texans deserve a system they know will protect the innocent, convict the guilty, and is instilled with the fairness and integrity justice demands." 

MORE: From the Texas Tribune.


Mike Howard said...

I definitely can't wait to here what obligations it would require from the defense.

Anonymous said...

I'm sure if the defense attorneys have to disclose anything under this bill, they'll bitch and moan like it's the end of the world.

Gritsforbreakfast said...

The bill text is up now, Mike, so you can see for yourself. Click on the link on the bill number.

Mike Howard said...

I just read it and I have no major problems. Already I can see an improvement, even in a place like Dallas that has an informal discovery process. As it is now, the Dallas DA's office refuses to provide complainant or witness contact info the vast majority of the time. That can be huge and seems worth it in exchange for witness statements, physical evidence, affirmative defense, alibi, and witness lists. Just my take though. I'm sure there will be backlash.

Anonymous said...

When you're addicted to trial by ambush, it's hard to give it up.

Anonymous said...

From the prosecution perspective, this is a great piece of legislation. From the defense perspective, not so sure. Grits, why did Sen. Ellis abandon his original bill?

Gritsforbreakfast said...

7:01, he hasn't told me directly so I can't say for sure, but I suspect it's because a bunch of loonie zealots relentlessly slandered him over it and refused to participate in the process. So he found a Republican partner for reform, filed a bill that tried to address the concerns the defense bar likely would have raised if they hadn't behaved like children ("I'm taking my ball and going home") and chose to move forward without them. That's pure speculation, of course.

Interesting that defense attorney Mike Howard has no major problems. Hope the rest of the defense bar reacts similarly, or at least will come to the table to change what they don't like.

Anonymous said...

I don't see any mention of law enforcement turning over the scene video and station video, MDT's and dispatch recordings which might invoke the exclusionary rule for illegally obtained evidence or on the other hand bolster the officer's reasonable suspicicion and probable cause for search and seizures. That is the transparency which would prevent many trials from ever occurring. The preservation of this kind of evidence needs to be addressed. There are no sanctions in place for law enforcement discarding this kind of evidence within 30 days as standard procedure...often before an attorney is hired to request preservation or determine if these records are necessary to the defense. When an arrest is made there is no good excuse for video of the stop, arrest or station interactions to be lost or discarded before conclusion of the case. Todays technology provides redundancy (hardrive, internet uploading and removable disk) so lost dash cam video should not be happening and is too often "lost" to allow officer enhancements to prevent the exclusionary rule from doing its job of discouraging illegal searches and seizures. Antonio Beuhler would certainly appreciate it if Austin PD would turn over their dash cam video which could possibly clear him of Felony Assault charges for merely video recording police using unecessary force during a DWI investigation. The unarmed kid shot through the head by a Pasadena Police officer would have appreciated being able to see the dash cam of his shooting. Anyone accused of a nonexistant traffic violation to justify a stop would appreciate video not being withheld or "lost". Where is the section that allows for dismissal by the judge when law enforcement withholds evidence invoking the exclusionary rule? No teeth in this bill to punish the state for not meeting timely discovery and dragging cases out in order to extract a plea without disclosing. Where is the provision that allows for reversal of a guilty plea when it is later shown that discovery was withheld. With no teeth the gamesmanship will continue.

Gritsforbreakfast said...

10:49 says "The preservation of this kind of evidence needs to be addressed. ... Where is the section that allows for dismissal by the judge"

Then tell your reps at TCDLA to engage in the process and address those things, or tell the bill authors themselves. Bill filing is the beginning, not the end.

Don't just ask, "where is this?" "where is that?" Contact the bill authors and tell them what you think needs to be in there. Naysaying and whining isn't going to get the job done and IMO if the defense bar chooses not to participate, the Lege will just steamroll over them and do it without their input (though the prosecutors' assn will be happy to provide their suggestions). This has been going on a long time and everybody I've spoken to at the capitol is sick of the obstructionism - even folks who should be TCDLA's allies. Don't say you weren't warned.

Anonymous said...

Grits, is it true that the Harris County Criminal Defense Lawyers Association actually voted to oppose Rodney Ellis' original discovery bill? I wonder if they'll oppose this new bill too. Seems to me that the defense lawyers are just wanting to milk the Michael Morton case for all it's worth to "have their cake and eat it too." The fact that they'd turn on Ellis (one of their best friends in the legislature) is astounding. Say what you want about the prosecutor's association. At least they are willing to confront these proposals in a constructive and open minded fashion. That kind of says a lot in my opinion.

Anonymous said...

This seems to be a good bill. However, it still doesn't address the problem of intentional prosecutorial misconduct. What are the consequences when a prosecutor intentionally hides evidence, coerces witnesses to lie, or engages in other intentional misconduct like we've seen over and over and over. Sure, this bill will help. But, those who oppose holding prosecutors accountable have successfully steered the discussion to the topic of discovery and away from intentional misconduct. If prosecutors are already willfully violating Brady, will this statute really make them suddenly start following the rules? The only thing that will address the problem of intentional misconduct is to hold the prosecutor accountable. Remove the ridiculous doctrine of absolute prosecutorial immunity and allow those wronged by intentional misconduct to have the due process guaranteed by the Constitution.

Anonymous said...

"At least they are willing to confront these proposals in a constructive and open minded fashion. That kind of says a lot in my opinion."

I've yet to see prosecutors willing to confront the issue of intentional misconduct in any kind of open minded fashon. That kind of says a lot in my opinion.

Anonymous said...

How does this bill address problems like the prosecutor who posted on another thread here freely admitting he knowingly allowed officers to get away with testilying?

Lee said...

This is the scary part: "mutual discovery obligations from defense attorneys"

Doesent the defense have a right to keep their scilence if they so choose. Defence has a right to conseal their work product and the claim of attorney client privelige. No way in hell should the defence allow a prosecutors nose in their files. If the investigator for the defence comse across a witness that says something incriminating against the defendant that the prosecution is not aware of, the defence should not be required to provide that information to prosecutors. The defence simply put has a right not to help the prosecution in conviction.

Anonymous said...

I'm with Lee. Is it too early to start lobbying Rick Perry to veto this bill if it passes, Grits?

Mike Howard said...

Lee: the defense can still keep silent. Under the bill it doesn't have to turn over work product; privilege is still in tact. If the defense uncovers an incriminating witness, nothing in the bill requires that they turn them over (only that they turn over any witness statements they take, can a good attorney/investigator will just not take statements, especially from witnesses who could harm his/her client).

I understand the worries, but a careful reading of the bill shows that, while the defense is certainly giving up some, it's not giving up much. Most cases don't involve affirmative defenses. Alibis, while not rare, don't come up in many cases. The old standard "they didn't prove their case" defense still holds under the bill. And weighed against what the prosecution would now be required to give up, it seems worth it to me.

Anonymous said...

TCDLA & HCCLA oppose both the original bill and this bill.

This bill continues to require the defense to give the State:( among other things)
- our witness list and last known addresses;
- witness statements;
- documentary evidence;
- notice of chapter 8 & 9 defenses.
Defense lawyers don't want the state in our files.

The Morton case gave cause for calls for reform.
Query: how does requiring the Defense to open its file address the outlandish prosecutorial misconduct & crimes that caused Mr Morton to be falsely imprisoned for 25 years? It does not. If their is a milking of Mr Morton's tragedy it is by the prosecution.
The prosecutors still fail to recognize the wrongfulness of their colleagues own actions in the Morton case. TCDAA EXEC DIRECTOR ROB KEPPLE defended John Bradly asserting he did nothing wrong. To the contrary, Bradly's obstructive acts added years to
Mr Morton's sentence

Mr Morton and others like Mr Graves suffered at the hands of rogue prosecutors who were all to willing to hid and manufacture evidence to secure convictions. Recip Discovery legis has been on the shelves here for years. The cynics or misguided are using the Morton case to promote Recip discovery, like the Bush Admin used 911 to justify the so called " Patriot Act".

The Defense Bar is united in its fight against this Bill. If we truly want to stop future Morton travesties we must address the root cause: rogue prosecutors. Inhibiting the future ability to defend our fellow Texans is no solution.

The condescending remarks herein directed at the defense bar are remarks not worthy of response. I wonder about those who criticize and belittle my fellow defense lawyers under the name "anonymous".

It is pathetic that the prosecution will profit off of the Morton Travesty which was inflicted on Mr Morton by prosecutors.

These are complex issues that don't fit into a neat sound bite. The Defense Bar may be openly insulted on these pages, but they are good and honorable people. We know this is a slippery slope. All Texans who are concerned about growing governmental intrusion into our lives better wake up. The good citizens of Texas ability to defend themselves is threatened by this bill and the prosecutors who so welcome it.

Robert J. Fickman
Lawyer, Houston

Anonymous said...

@Fickman, prosecutors aren't pushing this bill. This comes straight from the Innocence Project, Rodney Ellis and, to a degree, Michael Morton himself. There are aspects of this bill that prosecutors are not especially excited about, but at least they are willing to be open minded and participate in the discussion. Your petulant remarks speak volumes.

Mike Howard said...

I can't understand the name calling on either side of this issue. I think the slippery slope arugment is a valid one. But prosecutorial misconduct is half the problem; the other half is less than full discovery (or no discovery at all). I agree, Texas needs to address wonton Brady violations. Opening to veil covering Brady violations is a start. Adding teeth to punish intentional violations is also necessary. We should be pushing for that in addition to this legislation. I agree that this bill requires us to give up something, but we're never going to get robust and statutorily codified discovery state-wide without some compromise. Them there's politics.

If we continue to refuse to engage meaningfully in the debate one of two things will happen: 1) nothing, meaning continued limited-to-no-discovery and continued Brady violations, or 2) this bill gets passed without us (while its shaped by TDCAA) and we get the result shoved down our throats. Personaaly, I'd rather have my fingerprint on this and continue to push for more on Brady than be left in the cold.

Anonymous said...

Anonymous- generally I don't acknowledge anonymous posts. The fact you are unwilling to sign what you say speaks for itself.

This Bill is not supported by the Texas Innocence Project. If you don't believe me contact TIP founder & counsel Jeff Blackburn and he will tell you Texas Innocence Project does Not Support This Bill.

This bill is supported by Defender Services & Barry Sheck. Neither speaks for The good citizens of Texas. Neither speaks for the criminal defense bar of Texas. TCDLA represents 3200 criminal defense lawyers across the state. TCDLA Alone speaks for the Defense bar and TCDLA ADAMANTLY OPPOSES this bill. HCCLA BOARD also voted to unanimously oppose it.

Sen Ellis is trying to stop the barbarians at the gate. He supports it now. We will see where he is as time goes by.

Mr Morton deserves to be heard. But even Mr Morton might be used by prosecutors to advance their ends. Don't you think?

You say prosecutors aren't pushing this bill. That is great news!!! Thrilled to hear it. When can we expect Bradly Apologist TCDAA Rob Kepple to issue a statement that supports your Declaration. Hmmm?

Your suggestion that I am not willing to engage in discourse about the bill is wrong. I spent 4 hours with Ellis Staffer Brandon Dudley last Saturday discussing this bill.

My goal , is to prevent rogue prosecutors from robbing more innocent Texans of their liberty. My goal is to support laws that would protect my fellow Texans from future rogue prosecutors who would break the law to obtain a conviction. This bill will afford no protection from rogue prosecuors like Sebesta, Anderson and Bradly. This bill would neither stop them nor penalize them for robbing innocent men of their liberty. This bill affords the good citizens of Texas No protection from future rogue prosecutors who would rob us of our liberty.

I support Legislstion that protects my fellow Texans from prosecutiors who wifully hid or manufacture evidence to secure convictions of my Fellow Texans. I support legislstion that would correctly and justly provide criminal penalties for rogue prosecutors who would rob my fellow Texans of their liberty. That alone will deter the Andersons, Sebrstas and Bradlys who lurk about this State.

You call me petulant? The term does not capture my outrage. I am angry, defiant and vocal. I will so remain as long as there are rogue prosecutors who are allowed to rob us of our liberty with no consequence. Anonomous Apologists for these rogue prosecutors, will not deter me one bit. Travis and others did not die at the Alamo so that rogue prosecitors might rob of our liberty.

Robert Fickman

Skifool said...

Defense attys should be careful arguing about "intentional" violations of Brady. Correct me if I am wrong, but Brady violations don't require "intent" on the part of the prosecutor. You really don't want to take away from the Supreme Court rulings on Brady. Might be unconstitutional, anyway.

Anonymous said...

Well, one thing about it Grits, if we don't have mutual discovery in Texas after this session, this thread should make it clear which side killed it. Thank you Mr. Fickman and TCDLA for coming out of the closet. This is just my opinion but I'm guessing that most Texans are not that concerned about prosecutor misconduct. I suspect they are much more interested in making improvements to the system which will increase the likelihood of the guilty being punished and the innocent being filtered out of the system. If that means the defense lawyers have to show a few of their cards, so be it. I'd be especially interested in hearing Mr. Fickman's explanation for why mutual discovery is constitutional in 47 other states and federal courts, but wouldn't be in Texas.

Thomas R. Griffith said...

Het Grits & all. While taking into consideration that Grits has reminded us that - ‘Bill filing is the beginning, not the end” & has forever changed the way some of us look at the art of criminal justice reform with - “try not let the perfect become the enemy of the good”, I will attempt to understand that this is the beginning of a repair process aimed at ending a broken and twisted one sided justice system. An historic event allowing the public at large to basically comment, reply & move on the next blog / blawg topic or doing something positive about it.

Think about folks, in 2013 the big-ass elephant in the courts has resulted in: the calling for the revamping of the Code of Criminal Procedure, the Texas Business Association to climb aboard the reform bandwagon, an alleged rogue DA and even roguer ADA appearing in a seldom utilized inquiry to answer for / ignore their roles in a game they got caught up in & all of the sudden the Rules are being considered for revamping the way an arrest leads to the filing of criminal charges and ultimately ending up at the felony jury trial stage. This is historic and like it or not, it will have both positive & negative effects as it pits the ‘US’ crowd against the ‘THEM’ crowd for decades to come, as the taxpayers’ pick up the TAB(s).

The only true way for me to personally succeed in participating in the endeavor, is to first and foremost, voice my honest appreciation for those: *that fight crime un-biasedly & without prejudices, *investigate it & vet it thoroughly prior to seeking charges, *rightfully prosecute it without cheating & cutting corners, *preside over the process ensuring it’s done properly each & every time & especially those charged with rendering verdicts with what they are given in order to rightfully punish the truly guilty & releasing the truly innocent.

Despite the Rs’., Ds’., Is’., & T.Ps’, allowing / contributing to a great state of confusion, ‘Texas’ as a whole, has been under a global micro & media scope that will shift from: “WTF?” to “WN?” (Why Now?) to “IAT?”. Yes, It’s About Time. The headlines will read – “Texas just woke up and smelled the rotten roses, burnt coffee & decided to mess with itself” or “Texas just refused to mess with itself and it aint pretty”.

Thanks for playing and for taking time to read just one of the victims’ of the system views. *Below are plausible solutions and are off the cuff while being issues directly related to the cause(s) of wrongful convictions not covered and a dab of positive preventative measures.

Thomas R. Griffith said...

When comparing the two versions, I notice that the bill’s first version - #2 of Defendant’s Disclosure to State regarding - Any criminal record history of defense witnesses, if known, was removed & the inclusion of Sec. 5. Certificate Of Compliance which seems to cover an area that will force Judges’ to adhere to and respond via: Court’s ORDERS response(s) of Agree / Denied regarding the defense filing of pre trial discovery motions and that of the state.

With that, I’m going to go out on a limb and partially support the new version by adding that it’s my sincere hope that someone at the top considers the following inclusions to ensure that areas overlooked in both versions’ are covered. These are my suggestions for possible inclusion, while you are free to delete, include or throw as many rocks as you can muster. Today, we fight the good fight and let chips fall where they may.
*Defense Disclosure to the State - To become part of the Case File & recorded on the docket by certified court reporter & filed with Clerk of Court.

1.Credential Verification Process -
(a).Anti-Dabbling clause. Defense Team’s: *Legal Education, *Voir Dire & *Jury Trial experience to be disclosed prior to filing: Pre-Trial Discovery Motions, Ready for Trial notices & actively participating in Voir Dire and / or Jury Trial proceedings. Non Board Certified Criminal Defense Attorneys / Lawyers being required to enlist a BCCDL to actively participate (be present) in all levels and stages after Jury is empanelled.

*State Disclosure to Defense - To become part of the Case File & recorded on the docket by certified court reporter & filed with Clerk of Court.

1.Crime Victim(s) Original Police Incident Report –

(a).Copies of the Original (1st version) of alleged events including: *BAC reading at time of providing official Incident Report, *Medications currently prescribed, *Detailed Description of suspect(s), *Detailed Description of weapons used and any phrases used, *Mandatory signature of crime victim and date of report as being given under penalty of felony perjury as to contents provided to law enforcement personnel.

(b).Photo LineUp & Live ShowUp proceedings. Any Positive Identification declared by a crime victim and all subsequent interview(s) of the crime victim regarding any Description(s) Discrepancie(s) shall be noted as being confronted by the Lead Detective and signed off on by shift supervisors’ as being observed & noted prior to allowing the contacting of the D.A’s. Office and / or D.A’s. INTAKE seeking charges. Any, subsequent Descriptionary information obtained and / or provided after the completion of a live Show-Up shown to be gross in deficiencies and / or blatantly different as compared to the Defendant’s Booking Photo and / or actual description shall be grounds for the Defense to utilize in requesting charges to be dropped.

(c).Defendant’s Probationary Status. Date Activated, Date Revoked. Type: Misdemeanor / Felony, (Term months / years), Restitution / Fine Status, Probation Officer(s) name(s), Negative Infraction(s), Positive Accomplishments.

(d).Probation Department Officer required to attend any Jury Trial and sign off on any Plea Bargain processes Check List - ‘Reason(s) for Plea Bargaining’ as to why Defendant is being advised to either avoid / stop a jury trial.

(e).If Defendant is pulled over or questioned and results in an arrested on an OTW, the Constable’s Office that would work the warrant is required to provided a copy of the OTW to both the: State & Defense prior to voir dire proceedings.

Thomas R. Griffith said...

*Both State & Defense Equal Requirements “NOT Ready for Trial” Notices – To become part of the Case File & recorded on the docket by certified court reporter, filed with Clerk of Court.

1. Pre Trial Discovery Motions and Court’s Orders -

(a). When the Pre-Trial Discovery Motion’s ‘Courts’ Orders’ are shown to be Ignored neither being: *AGREED or *DENIED, the Defense & State shall both file “NOT Ready for Trial” notices listing the ‘Reason(s)’ as being due to the Court not addressing Pre Trial Discovery Motion(s).

2. Certificate Of Compliance –

(a). When either the State or Defense is shown to have filed Pre Trial Discovery Motions and or requested additional supplemental information not released via: *Ignoring, or Replying with unable to comply and / or no records found, the court shall provide 10 days for either side to comply or place on the record reason(s) why unable to. If the information is found to be readily available but being used to willfully stonewall and / or hamper the defense or prosecution the party found in non-compliance shall be fined & jailed for no more than or less than 30 days for each infraction.

3. Case File, Evidence & Record Retention –

(a). Mandatory *police reports, investigative & supplemental investigative information results, Plea Bargain offers & amendments, / *Defense Team case files with alibis witness interviews & *Physical Evidence (weapons / firearms / photos) with chain of custody for all criminal cases that complete the voir dire proceedings for no less than 10 years from the date in which the Defendant discharges sentence. No destruction allowed regarding: *Life Sentences, *Death Row, *Plea Bargaining when Not Guilty is changed to Nolo Contendere / No Contest, or *When a death resulted directly from the alleged crime. Defense firms can store information in office and / or at offsite storage retention locations. The state can utilize government owned buildings already in existence, upgrade as needed, as well as repurpose and utilized others for such storage.