Proposed bill could shake up criminal court procedure

Jessica Priest By Jessica Priest

Dec. 25, 2012 at 6:25 a.m.
Updated Dec. 26, 2012 at 6:26 a.m.

A bill pending before the state Legislature would require prosecutors to hand over more information requested by the defense.

But attorneys say area prosecutors already do what Senate Bill 91 is proposing.

Proposed multiple times by Sen. Rodney Ellis, D-Houston, the bill alters a long-standing article in the code of criminal procedures in relation to discovery - or obtaining, collecting and sharing evidence before a trial.

It aims to create a more symbiotic relationship between the two parties by mandating that if a defense attorney asks for the state's materials, they too must extend the same courtesy - so long as it doesn't violate attorney-client privilege or is a work product, such as personal notes.

Under current law, prosecutors aren't obligated to give up offense reports or written or recorded statements made by the defendant or witnesses. Everything else is up for grabs upon a successful court motion.

Defense attorneys, meanwhile, aren't required to produce any of their evidence before a trial barring informing prosecutors that they intend to ask an expert to testify.

Locally, prosecutors say this legislation may fix a problem that doesn't necessarily exist in the region.

Victoria County Criminal District Attorney Stephen Tyler already has what he likes to call an "open file policy." Through a written contract with the local bar, he sends defense attorneys everything in his case file - except for witness interviews and his personal notes.

He worries if Ellis' legislation were to come to fruition, the measures would become so intrusive and exhausting that defense attorneys would think they were entitled to an inside look into how he'd respond to every hypothetical situation, such as a possible alibi.

"They would have a blueprint for everything I'm going to do," he said, adding that he'd spend countless hours typing up motions for any and every scenario. "If I could predict the future accurately enough, why would I be a prosecutor?"

He said this would prevent his six prosecutors and two investigators from adequately preparing for each of the 20 to 30 cases that could go to trial, thereby allowing criminals to walk free.

Tyler also added the idea that this bill would make the discovery process reciprocal is nothing more than "fool's gold" because there are many ways in which defense attorneys could refuse to hand over their tools.

Defense attorneys also have some reservations.

Brent Dornburg said he, of course, would like even more access to documents than he's already allowed but couldn't say at what price without examining the bill further.

"There are some edges that we have. Of course, I wouldn't want to give them up," he said.

Dornburg said the bill could, on the other hand, streamline the process and get cases that don't need to go to trial dismissed faster.

Everyone seemed to agree that most criminal district attorneys are "straight shooters."

Both criminal district attorneys Bobby Bell, of Jackson County, and Dan Heard, of Calhoun County, also have open file policies, although they vary.

They said it's not only the right thing to do, but it cuts down on hours the court could spend on hearing discovery motions.

Bell, who was skeptical the bill would pass, said it may not be the answer, especially if it stems from the idea that prosecutors don't already turn over exculpatory evidence, or evidence that might tend to show the defendant not guilty.

"Why do you need the Legislature to put that in the law? It already is law," Bell said of the Brady v. Maryland Supreme Court ruling.

Heard said the bill's intent seemed reasonable.

"I've always said that if I can't convict somebody without letting them know everything about the case, I probably shouldn't be prosecuting the guy in the first place," he said.

But Heard added that legislators must tread lightly.

"I like the general concept," he said, although he hadn't read the bill line for line. "But we want to be fair and get it right."

Defense attorney Micah Hatley said he's satisfied with Victoria County's procedure. He said although often times the two groups are adversarial, trials should never be about winning or losing. Hatley said he'd oppose any bill that might shift the burden of proof from the state to the defendant.

"To disclose some things I think that would be adverse to that premise that the state has to prove beyond all reasonable doubt," he said.

Lydia Clay-Jackson, the president of the Texas Criminal Defense Lawyers Association, agreed. She said this discussion about reciprocal discovery, which has gone on for about six years, is a meaningful one about the fundamental principles of law.

"When it comes to legislation, the devil really is in the details," she said.

Sen. Glenn Hegar, whose 18th District includes most of the Crossroads area, said via email that he looks forward to reviewing Senate Bill 91. He said Texas' district attorneys need flexibility to prosecute society's violent and dangerous criminals.

"So long as the procedure is fair, balanced, and adherent to the important starting point that a defendant is innocent until proven guilty," he said.

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Proposed bill could shake up criminal court procedure



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