Revamped reciprocal discovery bill is still bad for the defense

State Senator Rodney Ellis' (D-Houston) reciprocal discovery bill, otherwise known as the blame the defense for wrongful convictions, act, has been modified as a result of the opposition of the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association.

As originally proposed, in exchange for offense reports, the defense would have to disclose (1) all written and recorded witness statements, (2) all convictions that would be used to impeach state witnesses, (3) all physical and documentary evidence the defense intended to introduce at trial, (4) a witness list, (5) a list of experts, (6) any reports prepared by an expert retained by the defense and (7) any affirmative defenses the defense intended to plead at trial.

The most objectionable items on that list were witness statements, witness lists, physical and/or documentary evidence and affirmative defenses (although I don't have as big a problem with the last item as some colleagues of mine do). Senator Ellis' bill seems somehow to assert that Michael Morton, Anthony Graves and the other exonerees wound up on the bad end of a verdict because their attorneys didn't disclose these items to the state.

Sen. Ellis seems to forget that it is the state that filed the charges and it is the state who is seeking to infringe upon the liberty of its citizens by pursuing a criminal prosecution. But then, facts and logic have never been the stock in trade of our state legislators.

Now, having heard the derisive shouts from the defense bar, Sen. Ellis has scaled back his list of items the defense must turn over to the state. SB 1611 is the newest (and last) version of reciprocal discovery for this legislative session.

While the core of SB 1611 is identical to SB91, there are a few subtle changes. The new bill would still require the defense to turn over its witness list to the state - but not until just prior to jury selection. To make it all "fair," the new bill doesn't require the state to turn over its witness list until just prior to jury selection, either. Of course the way around that is to check the court's file periodically for subpoena requests and to keep an eye on the district clerk's website for any subpoenas issued in the case.

The new bill also does away with the requirement that the defense provide any criminal convictions the defense intends to use to impeach a witness for the state at trial. The new bill does, however, still require the defense to produce all witness statements and notice of affirmative defenses (upon request by the state).

Yes, the new bill is an improvement over the old one - but that still doesn't make it a good idea.

If Sen. Ellis really wants to prevent wrongful convictions in the future, the items his bill requires the state to produce to the defense is a very good start. The only things the defense should be required to give up are the names of expert witnesses and copies of any reports prepared by defense-retained experts upon request from the state as well as any affirmative defenses under Sections 8 or 9 of the Texas Penal Code upon request from the state.

The bill should also put some teeth in the requirement that the state produce any Brady material in its possession, subject to its control or within its knowledge. The penalty for a prosecutor who plays fast and loose with the rules shouldn't be a slap on the wrist after the fact.

Michael Morton didn't go to prison for 25 years for a crime he didn't commit because his attorneys didn't hand the state copies of witness statements - he went to prison for 25 years because the Williamson County District Attorney's Office violated the rules and played fast and loose with ethics requirements.

Anthony Graves didn't set in prison for 18 years because his attorney didn't hand over the evidence he intended to introduce at trial - he went to prison because the prosecutor knowingly failed to hand over exculpatory evidence to the defense that might just have led to a different verdict in the first place.

While Sen. Ellis' bill is an improvement - it's still unacceptable.

H/T Grits for Breakfast