Monthly archive

November 2013

November/December 2013 SDR – Voice for the Defense Vol. 42, No. 9

Voice for the Defense Volume 42, No. 9 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

The circuit court erred in holding that any degree of judicial participation in plea negotiations automatically requires vacatur of a defendant’s plea, irrespective of whether the error prejudiced defendant. United States v. Davila, 133 S. Ct. 2139 (2013).

        D entered a guilty plea for filing false income tax returns. The district court denied D’s motion to vacate the plea. D argued that a magistrate judge had improperly participated in the plea negotiations in violation of Fed. R. Crim. P. 11(c)(1). The Eleventh Circuit vacated the plea. The U.S. Supreme Court vacated the Eleventh Circuit’s judgment and remanded.

        During an in camera hearing, a magistrate judge told D that his best course, given the strength of the government’s case, was to plead guilty. More than three months later, D entered a guilty plea, stating under oath that he had not been forced or pressured to enter the plea; D did not mention the in camera hearing. The Supreme Court held that under Rule 11(h), vacatur was not required if the record showed no prejudice to D’s decision to plead guilty. The Court further held that violation of Rule 11(c)(1) was not a structural error and that in assessing Rule 11 errors, a reviewing court had to consider all that transpired. The circuit court should not have assessed the magistrate’s comment in isolation but in light of the full record to determine if it was reasonably probable that, but for the magistrate’s comments, D would have exercised his right to go to trial.

A sentencing court shall not apply the modified categorical approach to a federal defendant when the crime for which the defendant was previously convicted has a single, indivisible set of elements. Descamps v. United States, 133 S. Ct. 2276 (2013).

        After petitioner was convicted of being a felon in possession of a firearm, the district court found that he had three prior convictions for violent felonies, including one for burglary under Cal. Penal Code § 459, and enhanced his sentence with the Armed Career Criminal Act, 18 U.S.C.S. § 924(e). The Ninth Circuit affirmed. The U.S. Supreme Court reversed.

        The ACCA can increase the sentence of a federal defendant who has three prior convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether convictions qualify as ACCA crimes, courts use the categorical approach, or the modified categorical approach when convictions are for violating divisible statutes that set out one or more elements in the alternative. The lower courts erred when they used the modified categorical approach to look behind D’s burglary conviction in search of record evidence that he actually committed the generic offense of burglary. The modified approach did not authorize a sentencing court to substitute such a facts-based inquiry for an elements-based one, and did not apply to statutes like § 459 that contained a single, indivisible set of elements that criminalize a broader swath of conduct than the relevant generic offense.

As applied to D, the registration requirements of SORNA fall within Congress’s authority under the Necessary and Proper Clause. United States v. Kebodeaux, 133 S. Ct. 2496 (2013).

        Respondent was convicted of a federal sex offense. When he was released, he registered with Texas authorities as a sex offender. After Congress enacted the Sex Offender Registration and Notification Act, he moved within Texas without making SORNA registration changes. The Fifth Circuit reversed his SORNA conviction, noting that he had completed his sentence when SORNA was enacted. Concluding that D had been unconditionally freed, the Fifth Circuit further held that the federal government lacked power under the Necessary and Proper Clause, U.S. Const. art. I, § 8, to regulate D’s interstate movements. The Supreme Court reversed and remanded.

        Contrary to the Fifth Circuit’s critical assumption that D’s release was unconditional, a full reading of the relevant statutes and regulations makes clear that at the time of his offense and conviction he was subject to the Wetterling Act, which imposed registration requirements very similar to SORNA’s. Plus, when SORNA became law, it applied to offenders who had already completed their sentences. The fact that these federal-law requirements in part involved compliance with state-law requirements made them no less requirements of federal law. Further, SORNA and the Wetterling Act were properly promulgated under the Military Regulation and Necessary and Proper Clauses.

A stay upon a court of appeals’ mandate must be lifted once the Supreme Court has acted upon the petition. Ryan v. Schad, 133 S. Ct. 2548 (2013).

        D was convicted of murder and sentenced to death. After state and federal-court proceedings concluded with this Court’s denial of D’s petitions for certiorari and for rehearing, the Ninth Circuit declined to issue its mandate immediately as required by Fed. R. App. P. 41(d)(2)(D). The Ninth Circuit instead sua sponte reconsidered D’s “Motion to Vacate Judgment and Remand to the District Court for Additional Proceedings in Light of Martinez v. Ryan[, 566 U.S. 1 (2012)].” Based on its review of that previously rejected motion, the Ninth Circuit issued a stay a few days before D’s scheduled execution. The Supreme Court found that the Ninth Circuit abused its discretion.

        The Ninth Circuit declined to issue the mandate based on an argument it had considered and rejected months earlier. There is no indication that there were extraordinary circumstances that called for the court to revisit an argument sua sponte that it already explicitly rejected. The Supreme Court reversed the Ninth Circuit, vacated the stay of execution, and remanded with instructions to issue the mandate immediately and without further proceedings.

Attempting to compel a person to recommend an in­vest­ment does not constitute “the obtaining of property from another” for the Hobbs Act. Sekhar v. United States, 133 S. Ct. 2720 (2013).

        A jury convicted D of attempted extortion, in violation of the Hobbs Act, 18 U.S.C.S. § 1951, based on the jury’s finding that D attempted to extort a general counsel’s recommendation to approve an investment commitment for a state employee pension fund. The Second Circuit affirmed, and the U.S. Supreme Court reversed.

        D was a managing partner of a firm, and the State Comptroller’s office was considering whether to invest in a fund managed by that firm. The office’s general counsel made a written recommendation to the Comptroller not to invest in the fund. The general counsel received anonymous emails, apparently from D, threatening to disclose information about counsel’s alleged affair if counsel did not recommend the investment. The Supreme Court reversed D’s convictions because the alleged property could not be extorted. The property extorted had to be transferable, but the alleged property in D’s case lacked that defining feature. Attempting to compel a person to recommend that his employer approve an investment did not constitute “the obtaining of property from another” under § 1951(b)(2). Whether one considered the personal right at issue to be “property” in a broad sense or not, it certainly was not obtainable property under the Hobbs Act. D’s goal was to force the general counsel to offer advice that accorded with D’s wishes, but that was coercion, not extortion.

Fifth Circuit

District court plainly erred in departing upward (from a Guideline range of 0 to 6 months to a 12-month prison sentence) without giving notice as required by Fed. R. Crim. P. 32(h); however, D failed to show this affected his substantial rights or seriously affected the fairness, integrity, or public reputation of proceedings. United States v. Zelaya-Rosales, 707 F.3d 542 (5th Cir. 2013).

        Nor was the court’s departure sentence an abuse of discretion or substantively unreasonable.

D’s second habeas petition was an abuse of the writ and successive; the district court did not have jurisdiction to consider it because D did not obtain authorization. In re Sepulvado, 707 F.3d 550 (5th Cir. 2013).

        Martinez v. Ryan, 132 S. Ct. 1309 (2012), did not apply to save D’s second habeas petition because Louisiana, like Texas, permitted a defendant to raise ineffective-assistance-of-counsel claims on direct appeal. Because the petition was successive and D did not obtain prior authorization from the court of appeals, pursuant to 28 U.S.C. § 2244(b)(3)(A), the district and Fifth Circuit courts did not have jurisdiction to consider D’s motion to appoint counsel. Additionally, because the Fifth Circuit lacked jurisdiction, there was no basis for a stay of execution. Finally, the Fifth Circuit reiterated its holding that the lack of a ruling on a motion for a certificate of appealability in the district court causes the Fifth Circuit to be without jurisdiction to consider the appeal and that a request for a certificate of appealability must be made to the district court before it can be made to COA.

“Proceeds” in the money-laundering statute is defined as “profits,” rather than “gross receipts,” only where there is a “merger” problem. United States v. Kennedy, 707 F.3d 558 (5th Cir. 2013).

        Under Justice Stevens’ concurring opinion in United States v. Santos, 553 U.S. 507 (2008)—which is controlling, since there was no majority opinion and since it decided the case on the narrowest grounds—the term “proceeds” in the federal money-laundering statute is defined as “profits,” rather than merely “gross receipts,” only where there is a “merger” problem, i.e., where the defendant is convicted under the money-laundering statute for essentially the same conduct that constitutes the conduct of the “specified unlawful activity” upon which the money-laundering count is premised (in this case, wire fraud). A merger may be proved in two ways: (1) a defendant may demonstrate that the underlying unlawful activity was not complete at the time the alleged money laundering occurred; or (2) a defendant may show the transaction upon which the money-laundering count is based was not a payment from the profits of the underlying crime made in support of new crimes, but, instead, was a payment from gross receipts of the previously committed crime made to cover the costs of that same crime. Here, however, the crimes of wire fraud were complete before the conduct underlying the money-laundering counts began. Furthermore, the defendants used only profits from the underlying wire-fraud crimes to assist them in committing new crimes of wire fraud; therefore, there was no “merger,” and Ds were properly convicted for money laundering.

Court of Criminal Appeals

Under the Strickland two-prong test, D received ineffective assistance but was not prejudiced. Ex parte Lahood, 401 S.W.3d 45 (Tex.Crim.App. 2013).

        D was convicted of aggravated kidnapping and aggravated sexual assault. He filed for habeas relief, alleging ineffective assistance of trial counsel. The district court twice recommended denying relief. CCA agreed.

        Counsel was deficient because a decision not to investigate D’s mental-health history was unreasonable; counsel knew D was on medication, and signs of his mental instability arose at trial. However, D was not prejudiced because there was not a reasonable probability that the fact-finder would have found him incompetent to stand trial. The record showed that D engaged in a reasoned choice of legal strategies and options. Even if D failed to receive some of his medication, there was nothing to indicate that he lost the ability to understand the proceedings or rationally confer with his counsel.

The trial court’s cumulation order was supported by evidence that the jury affirmatively found the offense occurred in a drug-free zone. Ex parte Knight, 401 S.W.3d 60 (Tex.Crim.App. 2013).

        D, convicted of possession of controlled substance and felon in possession of a firearm, sought habeas relief alleging there was no evidence to support the cumulation order and the imposition of attorney’s fees. The district court recommended relief be granted. CCA denied D’s no-evidence challenge and dismissed D’s challenge of the attorney’s fees.

        CCA found that D’s no-evidence challenge to the cumulation order under Tex. Health & Safety Code § 481.134(h) was not cognizable in the habeas proceeding because some evidence showed that the jury increased D’s punishment due to the drug-free-zone violation when it found the allegation true, the trial court included that affirmative finding in its judgment, and the jury sentenced D at the higher punishment range. Further, D’s challenge to the order requiring repayment of attorney’s fees was not cognizable under Tex. Crim. Proc. Code art. 11.07 because that order did not affect the fact or duration of D’s confinement pursuant to her conviction. Finally, CCA would not treat the habeas application as a petition for mandamus because such a petition directed against the district-court judge would have to first be decided by COA.

The variance between pleading and proof was immaterial in this case. Ramos v. State, 407 S.W.3d 265 (Tex.Crim.App. 2013).

        D was charged with capital murder and felony murder of a child, but convicted of the lesser-included offense of manslaughter. D argued that because he was convicted of manslaughter, Tex. Code Crim. Proc. art. 21.15 required the State to plead the acts relied upon to constitute recklessness. COA and CCA affirmed D’s manslaughter conviction.

        CCA held that Article 21.15 did not apply because the indictment did not include manslaughter. Article 21.15 states that “[w]henever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment… must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness[.]”

        Moreover, the variance in pleading and proof was immaterial because “(1) the gravamen of manslaughter is the death of the victim, and the evidence shows beyond a reasonable doubt that Appellant caused the death of the victim, (2) notice was adequately provided to Appellant, and there is no risk of double jeopardy, and (3) the cumulative force of the evidence supports the jury’s verdict that, beyond a reasonable doubt, the Appellant caused the death of the victim[.]”

The trial court determined D was indigent, and there was never a finding that he could re-pay any of the costs of court-appointed counsel; thus, there was no basis for a determination that D could pay the fees. Cates v. State, 402 S.W.3d 250 (Tex.Crim.App. 2013).

        COA’s reasoning that there may, in the future, be funds in D’s inmate trust account and that such funds could be used to re-pay expenses of his court-appointed counsel was flawed. Tex. Code Crim. Proc. art. 26.05(g) requires a present determination of financial resources and does not allow speculation about possible future resources.

A court of appeals must consider all alternative legal theories raised on appeal, including those not argued at trial, that may uphold a trial ruling on a motion to suppress. Alford v. State, 400 S.W.3d 924 (Tex.Crim.App. 2013).

        The State defended the trial court’s denial of D’s motion to suppress by contending that the officers’ contact with D was justified under the community-caretaking exception to the warrant requirement and, alternatively, that the contact was consensual. The State, however, argued only the first theory to the trial court, and the trial court’s conclusions addressed only that theory. COA reversed D’s DWI conviction on the basis that the trial court erred in denying D’s motion to suppress. CCA affirmed COA.

        COA erred by applying ordinary procedural-default rules under Tex. R. App. P. 33.1(a) and holding that the State’s consensual-encounter theory was procedurally defaulted. The State was the prevailing party in the motion to suppress, and COA should have applied the rule that permits the prevailing party at trial to rely on any applicable legal theory to uphold the trial court’s ruling on appeal. Remand was unnecessary because, although COA initially determined that it need not address the State’s argument, COA then addressed and rejected that argument; the State did not challenge that analysis in its petition to CCA, and CCA need not remand for COA to re-analyze that theory.

The Confrontation Clause was violated by the admission of a drug analysis when only the reviewing analyst (not the testing analyst) testified. Burch v. State, 401 S.W.3d 634 (Tex.Crim.App. 2013).

        CCA affirmed COA’s judgment to remand for a new trial. The State attempted to submit testimonial evidence that D possessed cocaine without giving D the opportunity to cross-examine the analyst who tested the cocaine and made the affirmation of its contents. Although the State did call the reviewing analyst at trial, that witness did not have personal knowledge of the testimonial facts being submitted; she was not an appropriate surrogate witness for cross-examination.

Double jeopardy was not violated because indecency with a child by exposure and contact are separate and distinct offenses. Loving v. State, 401 S.W.3d 642 (Tex.Crim.App. 2013).

        D was convicted of three counts of indecency with a child by contact and two counts of indecency with a child by exposure under Tex. Penal Code § 21.11(a)(1), (a)(2). COA vacated one of D’s convictions for indecency by exposure on double jeopardy grounds and affirmed the other convictions. CCA reversed COA. D’s conviction of indecency by exposure was not barred by double jeopardy, U.S. Const. amend. V, because the Texas Legislature intended to allow separate punishments. The gravamen of § 21.11 was the nature of the prohibited conduct, whether the accused was charged with contact or exposure, and the commission of each prohibited act determined how many convictions could be had for a particular course of conduct. D’s conduct violated § 21.11 by two separate acts.

D could complain for the first time on appeal about the trial court’s imposition, sua sponte and after proceedings adjourned, of costs for the appointed prosecutor pro tem and the investigator because D did not have the opportunity to object. Landers v. State, 402 S.W.3d 252 (Tex.Crim.App. 2013).

        D was convicted for tampering with a witness and sentenced to two years’ in prison and a $10,000 fine. The clerk’s record included a bill of costs issued six days after judgment that had fees for the attorney pro tem and the prosecutor’s investigative costs. COA held that D had not preserved a complaint about the fees for appeal. CCA reversed COA and remanded.

        When D was convicted and sentenced, court costs were assessed at $4,562.50. There was no indication of what the court costs were for and a bill of costs was not issued until six days later. The bill showed $3,718.50 of the costs assessed were for the court-appointed attorney and $440 of the fees were for the court-appointed investigator. No notice of this document was given to D or her attorney. Since D was not given an opportunity to object to the imposition of these costs, the absence of an objection was not fatal to her appeal. The preservation requirement under Tex. R. App. P. 33.1(a) did not apply.

Court of Appeals

Thank you to John Denholm of Musick & Musick, LLP, for alerting us to the following opinion!

Trial court properly granted D’s motion to suppress; Fifth Amendment protections were triggered when officers began interviewing D. State v. Jefferson, No. 14-12-00296-CR (Tex.App.—Houston [14th Dist] Apr 18, 2013, pet ref’d).

        In this murder case, the trial court did not err by granting D’s motion to suppress incriminating statements because he was not given Miranda warnings. D was stopped because the vehicle he was driving had been involved in a homicide. Officers ordered D out of his car at gunpoint and then handcuffed him until he arrived in the interview room. D was not given an option of non-compliance. A reasonable person in D’s position would have believed he was in custody when the officers began interviewing him, because his liberty was compromised to the degree associated with formal arrest. Accordingly, Fifth Amendment protections were triggered. D was entitled to the warnings mandated by Miranda and Tex. Code Crim. Proc. art. 38.22.

Criminal Discovery in Texas—2014: The Beginning of a Brave New World of Fairness

On January 1, 2014, discovery in criminal cases in Texas will enter a new era—one in which almost anything the defense wants to prepare its case must be produced by the State. Gone will be the days of dependence on the generosity and charity of the prosecutor. Gone will be the days when prosecutors leveraged discovery availability by requiring defendants to agree to waive other discovery and motion rights. Gone will be the days when prosecutors only allowed a visual inspection of offense reports and witness statements, requiring criminal defense lawyers to take often voluminous notes. Gone will be the days when prosecutors could hide impeaching information pretrial on the theory that disclosure of impeaching information was only required if the case proceeded to trial. The playing field in criminal cases in Texas will now be fairer and much more level as we truly enter the proverbial 21st century.

Senate Bill 1611 (SB 1611), named the “Michael Morton Act,” was sponsored jointly by Senators Rodney Ellis (D-Houston) and Robert Duncan (R-Lubbock). They and their staff (especially Brandon Dudley, chief of staff and general counsel, and Megan LaVoie, general counsel) are due much credit for shepherding this momentous legislation and dealing with all of the competing and often contentious interests involved. It unanimously passed both the House and Senate. It was quickly signed by Governor Perry in a public ceremony where it was once again praised as a mechanism to lessen the likelihood of convicting the innocent. Of course, as with most things, how effective its reforms ultimately becomes in lessening the likelihood of wrongful convictions will depend on defense lawyers understanding and taking advantage of it, prosecutors understanding the Act’s requirements and following its rules, and the courts enforcing both the letter of the law and the goals it sought to achieve.

The purpose of this article is to highlight the major changes and to provide guidance to lawyers and judges as they seek to understand and adapt to the changes made by SB 1611 to Tex. Code. Crim. Pro. 39.14.1

Initiation of Discovery

A person charged with a crime2 who wants discovery must ask for it. 39.14(a) provides “as soon as practicable after receiving a timely request from the defendant the state shall produce and permit [discovery]. . . .” By its terms, it requires a request from the defendant, but imposes no requirements on the form the request must take. The request must be directed to the prosecutor as the representative of the State. As a practical matter, these requests should be in writing. The last thing good lawyers want is an argument over the what was orally said, heard, or understood. The request need be nothing more than a letter, though it could also be in the form of a motion, much as many requests for notice of things like extraneous offenses occur today. Though neither permitted, prohibited, nor required by the statute, it would be wise for the request to also be filed with the court and contain a certificate of service. Memorializing the request in this way provides a record and eliminates arguments over whether and when it was received. It would also be wise for counsel to obtain an acknowledgment from the prosecutor that the request was received.

Unfortunately, the statute provides no precise deadline for the State to produce the requested discovery, except to require that it be produced “as soon as practicable.” What amounts to “as soon as practicable” will often depend on what is being requested. Some things like offense reports and witness statements should usually be produced rather quickly—because it is almost always practicable to do so. Other items that may require a prosecutor to obtain them from a law enforcement entity or third party may reasonably take longer. It is likely that most prosecutors will (and should) set up procedures to handle routine items.

It might be beneficial in some cases for criminal defense lawyers to split their requests into multiple requests—segregating the requests by a rough assessment of how quickly the prosecutor might be expected to produce the items requested. Those items likely to already be in a prosecutor’s file could go in one request and items from specific other entities (such as a lab) could be in separate requests.

If you do not ask, you likely will not get discovery, and without a request, the prosecutor has no obligation to produce anything other than items constitutionally required by Brady v. Maryland.

The Form of Discovery Production

Gone are the days of taking notes. 39.14(a) requires the State to “produce and permit the inspection and the electronic duplication, copying, and photographing” of the requested discovery. Defendants now have the right to a copy of the requested discovery and prosecutors are required to provide a copy when requested.

Of course, if all one requests is inspection, which will be appropriate in some circumstances, all one will get is an inspection. For example, if one wants to examine a piece of physical evidence, like a blood tube or a firearm, inspection and photographing may be appropriate while electronic duplication and copying are physically impossible. Lawyers should include in their requests the precise manner of production sought for each item requested. If you want electronic duplication and copying, then specifically ask for it. If you want inspection, then ask for inspection. If you want to photograph, then ask to do so. Lawyers should not, however, simply list every possible method as a preamble to a long list unless each method is appropriate. We should not make prosecutors guess at how the requested items should be produced.

39.14(a) specifically allows that “[t]he state may provide to the defendant electronic duplicates of any documents or other information described by this article.” Basically, this provision shifts the ultimate printing or copying costs to the defendant. It allows the State to scan items, rather than copy them. Though this portion of the statute is permissive, it was sought by prosecutors so that they could choose to provide electronic copies (scanned images) rather than printed copies. Though the costs of paper copies in any individual case are usually de minimus, when those small costs are multiplied thousands or tens of thousands of times, they can become substantial. It is no great burden on the criminal defense bar to print out scanned images. It also saves the time of having to scan them ourselves.

What Can Be Requested and What Must Be Produced

39.14(a) also sets out what can be requested, what must be produced, and the statutory exceptions. It provides for a request for and production of:

[A]ny offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

It is important to break this section down in order to understand each of its component parts. Specifically listed items include “offense reports,” “written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers,” and “any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action…”

Importantly, all written statements by a law enforcement officer are included within the statute. Thus, reports that are written wholly and only on internal law enforcement networks (like surveillance logs and reports in many narcotics cases) are specifically included in the definition of witness statements. This statute also puts law enforcement officers on notice that their written statements (like originally hand written notes) must be produced when requested. Gone are the days when one must get a court order compelling production of handwritten notes. It is also arguable that those who destroy their notes, knowing that they must be produced when requested, will have committed transgressions that will serve as the basis for litigation, not to mention comment at trial. Think about the folks at BP who are being prosecuted by the feds for destroying their original writings (text messages and emails), knowing that they might be required in the investigation and litigation.

Of particular importance is the portion of 39.14(a) that provides for production of “designated documents [and] papers…” The “designated” referred to in this language are items designated by the defendant. Thus, almost anything that constitutes a document or paper (and the words must mean something different from each other) is within the scope of 39.14. This includes as much as can be imagined and is specific to the case and will vary greatly from case to case. Common items may include MDT logs, dispatch tapes and logs, 911 tapes, training records, disciplinary records (at least of sustained complaints), personnel records, booking photos, payments to informants, and many more. This allows and requires the defense lawyer to tailor the requests to the specific needs of the case.

Discovery is not limited to what is in the prosecutor’s file. It includes items “in the possession, custody, or control of the state or any person under contract with the state.” Anything held by any law enforcement entity or other political subdivision of the State (basically, any non-federal government entity) is in the possession, custody or control of the State. It also includes items in “the possession, custody or control… of any person under contract with the State.” Thus, when the State contracts with a non-government third party, it remains obligated to produce items from that third party. This most commonly occurs when the State sends biological samples to non-government labs for testing. Bottom line—when the state contracts with a third party, material from the third party becomes discoverable.

Lawyers should not, however, have just one form discovery request that they use in all cases. Asking for DNA or lineup information in DWI cases will do nothing but make the lawyer look lazy and unprofessional. Discovery requests should be tailored to each case, though there are clearly some items that will be requested in almost every case.

Exempted from discovery by this section is the “work product of counsel for the state in the case and their investigators and their notes or report…” This exemption is limited. The item must constitute “work product.” The scope of what is work product is beyond the scope of this article, but notes by a prosecutor in preparation for the case are almost certainly work product.

This exemption is expanded in a later portion of 39.14(a), which provides that “[t]he rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state.” Nothing in the discovery statute, however, changes the requirements of the Rules of Evidence for production at trial of all statements of any testifying witness. See Tex. R. Evid. 612 (writing used to refresh memory) and 615 (statement of witnesses in criminal cases). Additionally, nothing in this statute affects a trial court’s power under Tex. R. Evid. 705(a) to require pretrial disclosure of the full underlying facts or data on which a testifying expert may rely. Bottom line—the Rules of Evidence still allow for discovery and disclosure of communications between a prosecutor and a testifying witness to the extent that it falls within the scope of the applicable Rule of Evidence.

There is one very significant exception to the work product and agent-communication exceptions. 39.14(h) provides that “[n]otwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”3 Thus, even work product and agent communications must be disclosed if it is exculpatory, impeaching, or mitigating. When a prosecutor or a prosecutor’s investigator takes notes of a witness interview, those notes will ordinarily be work product (unless the prosecutor or investigator may testify, in which case they become witness statements). However, to the extent that anything in those notes is impeaching, exculpatory, or mitigating to guilt or punishment, those portions of the notes must be disclosed. 39.14(h) trumps all other aspects of any limitation in the discovery statute.

Redaction of Material

Not everything is discoverable. 39.14(c) allows redaction in certain circumstances. It provides:

If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.

39.14(c) only allows redaction of things that are not subject to discovery under 39.14 (“document, item, or information is [not] subject to discovery under this article.”), and 39.14 only permits a prosecutor not to disclose privileged material. On the other hand, 39.14(c) allows a court to determine “whether withholding or redaction is justified under this article or other law.” Accordingly, it is likely that if some other law completely prohibits disclosure of certain types of information, a prosecutor will be justified in redacting it even if it is not expressly prohibited by 39.14—at least absent some compelling argument by the defense specific to the case. As a practical matter, even if the initial redaction is not justified by the initial clause of 39.14(c), a court, though not required to do so, may be justified in upholding such a redaction.

It is seriously doubtful, however, that this statute will allow the continuation of the practice in some jurisdictions of rou­tinely redacting personally indefinable information such as addresses, phone numbers, driver’s license number, police payroll numbers, and the like. On the other hand, social security numbers are seldom needed by defense counsel and may likely be legitimately (though not required to be) redactable.

Other provisions of the statue dealing with the issue of confidentiality of some personal information make it implicit that such information is initially discoverable by defense counsel—even if there are limits of how and to whom else that information may be disclosed. There would be little point in providing limits on redistribution of such information if the information was not discoverable in the first instance.

Confidentiality of Discovery

Two sections of the new discovery rights create obligations and restrictions on dissemination of the material produced. 39.14(e) is a general provision that applies to any disclosure to third par­ties of the material received from the State. 39.14(f) governs restrictions on disclosure in some instances, of some material, and to some persons on the defense team or witnesses.

As a general rule, 39.14(e) restrictions apply to anyone who is part of the defense team and prohibit disclosure “to a third party [of] any documents, evidence, materials, or witness statements received from the state” unless authorized by court order or when the material has already been publicly disclosed. 39.14(e) provides:

(e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless:

(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or

(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.

Bottom line—if you get it from the State as part of discovery under 39.14, you cannot release it to anyone outside the defense team without court permission or unless the material is already public. Examples of material that may already be public includes booking photos and some 911 calls.

39.14(f) contains restrictions on the use and disclosure by the defense team within the case preparation context. It provides:

(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

Those on the defense team (excluding the defendant, who may not be an agent of the lawyer for this purpose) “may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement.” In some instances, such as when a particular location or person’s identity may be a central defense issue, it may be necessary that some material be shared with witnesses in order to effectively prepare for trial. Nothing in 39.14 prohibits such basic case work.

Importantly, nothing in 39.14(f) restricts the dissemination of material to experts retained to consult or testify in the case (the statute distinguishes experts from other witnesses), but it does include such experts as persons subject to the restrictions of the statute. Defense counsel should always expressly inform, preferably in writing, any expert on the case of the terms of 39.14(e) and (f), as the law makes any such person subject to the statute’s restrictions.

On the other hand, 39.14(f) does prohibit some of the information contained in the documents from being shown or disclosed to the “defendant, witness, or prospective witness.” The restricted information under 39.14(f) includes “the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement.” The goal of this statute is to prevent such information from being accessible to persons who may use it for less than legitimate purposes related to the case. Normally, this restriction will not present any material difficulties in the handling of the vast majority of criminal cases.

There may, however, be some instances in which disclosure of this restricted information is necessary to fulfill a lawyer’s ethical and constitutional obligations—for example, disclosure of an address or date of birth to a witness to confirm or rebut the accuracy of some case-related issue. While 39.14 contains no specific remedy for such situations, no statute may abrogate the constitutional right to effective assistance of counsel. The instances in which this may occur and when such disclosure may be necessary to provide effective assistance of counsel will not be common.

When such situations do arise, however, lawyers ought to consider a sealed ex parte motion to the court seeking judicial authority to make the disclosure. Because the potential good cause for the disclosure will necessarily involve disclosure of case-related strategy issues, as it does with Ake motions, the motion should be ex parte and under seal. If the court grants permission, which it has the inherent authority to do—the statute notwithstanding—to ensure that the statute does not become unconstitutional as applied, the lawyer will have both legal and ethical protection.

Lawyers should be very reluctant to make the decision on their own and ought to seek advance court approval. Though a lawyer’s unilateral decision may ultimately prove defensible, it may also come with some serious pain in defending the decision. Caution is warranted.

Ethical Obligations Exception

Lawyers have certain ethical rights and restrictions on public communications concerning the facts of a case, as provided by the Texas Disciplinary Rules of Professional Conduct. 39.14(g) allows a lawyer to communicate in ways that are permitted by ethical rules, with restrictions intended to shield alleged victims and witnesses from excessive, unnecessary disclosure of their identities (except as allowed by subsections (e) and (f)) and iden­tifying information. Basically, it seeks to prevent a situation where prosecutors, law enforcement, or others have spoken publicly about a case and it is necessary, in the course of and to fulfill the goals of the representation, for a lawyer to respond to or rebut such public claims.

The statute strikes a balance by allowing disclosures in such circumstances, as permitted by the Disciplinary Rules, but prohibiting the disclosure of identities—that are not otherwise exempted from restriction by subsection (e) and (f)—and other identifying information. It provides:

(g) Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Pro­fessional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.

This awkwardly written provision both gives and takes. On the one hand, it recognizes, as it must to pass constitutional muster, that lawyers have both ethical and constitutional duties that cannot be abrogated by statute. On the other hand, it then seems to exempt from the ability to fulfill those obligations the same kinds of information that may be necessary to fulfill a law­yer’s ethical and constitutional obligations.

This section is best viewed as a restriction on general, public communications of specific personal information not otherwise already public that may be allowed by the ethical rules.

Pro Se Defendants

The rules of discovery for pro se defendants are more limited and restrictive. 39.14(d) provides, “[i]n the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a).”

A pro se defendant may not obtain discovery by simply requesting it. It requires a court order. Even with a court order, the State is only required to let the pro se defendant view and examine the material. The State is not required to (though it may) provide electronic or other copies. With pro se defendants who are incarcerated, this is going to present some serious logistical problems, but they are ones that prosecutors and judges will have to work out. It may also have some equal protection issues, but those will have to be sorted out by the courts on a case-by-case basis.

Costs of Discovery

A prosecutor may not charge anything to produce the required discovery and nothing in the statute allows them to do so. However, under 39.14(l) “[a] court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.” This will require the State to file a motion and obtain an order before any payment for costs of the dis­covery may be imposed. Ordinarily, this should not occur as the cost in seeking a court order for a few dollars in copying costs will most often not warrant the work required to secure the payment. In those rare instances where payment of costs by the defense may be appropriate (a court is not required to order payment of costs—the permissive “may” allows a court to determine on a case-by-case basis whether it is appropriate), the court cannot order any amount in excess of what would be allowed under the Texas Public Information Act (TPIA). As a general rule, copy costs are limited to ten cents a page, though there may be other costs as well. The scope of costs allowable under the TPIA is beyond the scope of this article, but counsel faced with such a situation will need to closely examine the TPIA and the state agency rules (Attorney General) applicable to such costs.

Documenting Discovery

39.14 contains specific rules for documenting and memorializing discovery. The goal of these sections was to eliminate hindsight arguments over what was produced by the State or received by defense counsel. 39.14(i) and (j) provide:

(i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.

(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.

39.14(i) is intended to require the State to contemporaneously (either electronically in those jurisdictions that have such systems or otherwise—typically in writing) record and document all discovery provided to the defense. 39.14(j) requires that in every case in which there is a plea or a trial, each party acknowledge disclosure and receipt of a list of the specific items provided. As document retention policies for both clerk’s and court reporters vary, it will be a better practice to have the disclosures made both in writing and on the record. Criminal defense organizations, prosecutors’ offices, and some courts are developing forms that will comply with this statute. Both prosecutors and defense lawyers should obtain and keep a copy of any written record of the discovery.

These requirements will take some getting used to, and are going to increase the paperwork burden, but they are designed to protect prosecutors (from claims of a lack of disclosure), defense lawyers (from claims of insufficient pretrial investigation), and defendants (from deficiencies of both prosecutors and defense lawyers) from fading memories that are the norm once cases are resolved. They are important for everyone, but will only be as effective as they are complete.

As with requests for discovery, no specific form is required, but it was intended to require sufficient detail to allow a third party looking at it (maybe years or decades later) to determine what was produced. For example, merely stating “offense report” is insufficient to protect anyone. A more appropriate description might be “offense report number x, dated y, authored by z and consisting of pages a through b and supplements c through d.” Witness statements should also contain more description than just “witness statements” or even “statement of John Doe.” At the very least, the date of the statement and the number of pages should be included. The degree of detail will depend on the specific item, but all need to keep in mind that if it ever gets looked at, the degree of detail will be directly proportional to the degree of protection provided to the party who needs the records. Lack of detail will make it difficult, if not impossible, for the party needing protection to achieve it. Last, but not least, if the writing is hand written, it needs to be legible.

Brady and the Statutory Brady-like Obligations

Lawyers must be familiar with the requirements of Brady v. Mary­land, which provides that due process requires the State to turn over any exculpatory, impeaching, and mitigating evidence. 39.14, however, goes beyond the requirements of Brady. First, under Brady and its progeny, impeaching material must only be turned over at a time and in a way that allows it to be used effectively at trial. In practice, this has resulted in far too many prosecutors failing to disclose information that is impeach­ing when there is not a trial—even though knowledge of this impeachment material would materially affect a defendant’s decision to accept a plea bargain offer or to proceed to trial. As many prosecutorial leaders have preached for many decades, a defendant is not entitled to a fair guilty plea, just a fair trial. Whatever the merits of that argument, 39.14 eliminates that line-parsing.

39.14(h) provides that “[n]otwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.” Imposed on this requirement is the basic requirement of 39.14(a) that disclosures shall be “as soon as practicable.” This requirement eliminates the game playing from withholding impeaching information unless and until a trial occurs. Importantly, impeaching information may include information or documents about an officer’s professional status, pending investigations, unavailability, and sustained grievances. It also clearly includes inconsistent statements from witnesses, at least to the extent that they go to a material issue, which includes credibility. Whether a particular inconsistency might tend to negate the guilt of the defendant will vary from case to case, but a prudent prosecutor should make disclosure of all inconsistencies, and let the chips fall where they may, lest they later be accused of hiding and failing to disclose information required to be disclosed under the statute. Given that the entire purpose of SB 1611 was to require complete dis­closure of anything even remotely favorable and to prevent hid­ing of such evidence, lawyers on both sides and the courts should remain acutely aware of the significant responsibilities of prosecutors to err on the side of disclosure.

39.14(k) also makes it clear that the obligation to make such disclosures in ongoing and is not extinguished by a plea or trial. It provides, “[i]f at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.” If a prosecutor chooses to make the disclosure only to a court, a curious anomaly in the statute, the court should ensure that the disclosure is also transmitted to the defendant and defense counsel. Anything less would likely render a disclosure to the court alone an ethically prohibited ex parte communication, something prosecutors should also keep in mind in choosing whether to report only to the court.

Discovery Agreements

39.14(n) allows the parties to agree to some discovery and documentation different than the statute requires. It provides, “[t]his article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.” Importantly, it does not allow for agreements that in any way lessen the statutory requirements— only those agreements “equal to or greater than those required” by the statute. Gone are the days when prosecutors could condition discovery on an agreement to forego other discovery or discovery motions.

As a practical matter, this statute allows for the defense to directly obtain discovery of some things independent of the prosecutor. In many jurisdictions, it is common practice for defense lawyers to obtain some governmental and third-party records by issuing a subpoena for those records. This portion of the statute allows for those practices to continue. In large part, this can result in an agreement, even implicitly, to shift the burden of obtaining some items by and from the prosecutor to the defendant. Often, with common items, such as dispatch logs, booking photos, and MDT logs, the work-load tradeoff is beneficial to all concerned and makes the system more efficient. Admittedly, some prosecutors may choose to assume the work-load on themselves.

Interaction with Public Information Act

Some prosecutors, and more frequently other government agency lawyers, assert claims that provision of the Texas Public In­for­ma­tion Act (TPIA) make information confidential and not subject to discovery. Aside from the fact that the TPIA expressly provides that its provisions only apply to public information act requests, 39.14(m) makes this argument untenable by expressly providing that “[t]o the extent of any conflict, this article prevails over Chapter 552, Government Code.”

Important Exemptions from 39.14 Discovery

There is one significant situation in which a copy of discovery may not be obtained. 39.14(a) expressly provides that the discovery rights under 39.14 are, “[s]ubject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code. . . .”

Article 39.15 provides that images of child pornography and material described by Article 38.071 (some pretrial recorded statements of children under 13 years of age in some circumstances) may only be viewed and inspected at a facility under the control of the State and mat not be copied. Tex. Fam. Code § 264.408 provides the same restrictions to child abuse videotape interviews. In such circumstances, 39.15(d) provides that “property or material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the property or material by the defendant, the defendant’s attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial.”

In such circumstances, some courts have allowed transcripts of the videotapes to be prepared for use of the parties, usually with the restriction that they only be used for the purposes of the case and not otherwise. Given that lawyers could hand write every question and answer, verbatim, and thus produce a transcript, there is little practical reason not to allow a professional transcript to be prepared. It makes everything related to those videotapes far more useful for both sides during the course of a trial.

Sanctions for Violation of the State or Discovery Abuse

39.14 contains no express sanctions for the violation by any party of the provisions of the discovery statute. Though potential sanctions (against both sides) were proposed and discussed in the formulation of the legislation, it was ultimately decided that such matters were better not specifically addressed. Frankly, both prosecutors and defense lawyers were leery about the application of express sanction. In the end, the consensus was that since courts already possess the inherent power to order remedial and sometime punitive (non-monetary) sanctions, it was best left to the remedies that already existed rather than trying to write a set of rules or guidelines that could produce unintended consequences for both sides.

Effective Date and Applicability

SB 1611 becomes effective on January 1, 2014. By its express terms it only applies to alleged crimes committed on or after January 1, 2014. Thus, there will be a transition period during which we operate under two sets of discovery rules. Though efforts were made to have these new procedural rules apply to some or all pending cases, the Legislature ultimately decided to make them only prospective to offenses allegedly committed on or after the Act’s effective date.

Conclusion

The provisions of 39.14 are intended to minimize the horror and likelihood of another Michael Morton. They are intended to bring some basic fairness into criminal discovery and to make it less likely that there is ever again such a dehumanizing miscarriage of justice. If used appropriately and effectively, the Act will likely make resolution of criminal cases (either by plea or trial) less problematic and less a guessing game on the part of defendants and their lawyers. The changes usher in a new era that will better enable defense lawyers to provide meaningful advice to their clients and create an opportunity for defense lawyers to more effectively provide constitutionally guaranteed effective assistance of counsel. The system and all of its participants will benefit and be better off both in the short and long term.

Notes

1. References in this article to 39.14 are to the amended version that becomes effective January 1, 2014, unless specifically noted otherwise.

2. It is doubtful that those arrested but not yet formally charged have any discovery rights under the amended 39.14 because they are not yet defendants. By its terms, 39.14 only applies to defendants. Nonetheless, it never hurts to ask, and those wanting discovery before charges are filed lose nothing by asking for it.

3. All emphasis in quoted material is added unless expressly stated otherwise.

Texas Discovery: Where We Were, Where We Are Headed

“Getting Discovery”

It is the early 1990s. I’m in a little rectangular room of the Travis County District Attorney’s office “getting discovery” on a murder case. “Getting discovery” is how we defense lawyers once described the strenuous efforts to view police reports and other evidence, efforts that were successful in some places, doomed in others. But this was Travis County, which, to the DA’s credit, did let us read the offense reports and write down what the police wrote, though it was a privilege that could be revoked on a whim.

When I write “getting discovery,” I refer to the tedium of hand-writing out, in quill-and-ink fashion, the typed offense reports and, if lucky, witness statements. Yes, copiers existed then, but they were radioactive insofar as discovery was concerned. Consequently, “getting discovery” was an unnecessarily awful ordeal, and it took a great deal of time for a lawyer to fully familiarize himself with the case after his seemingly endless scribblings to himself.

Unfortunately for me, I took a long time to get discovery one day, which aroused suspicion and ended in my punishment.

I just kept chatting away with other lawyers in that little room; I couldn’t help it. I had to commiserate. Also, I wrote down everything. I couldn’t help doing that either—was the license plate reflected on page 5 significant? Would it be relevant later, perhaps on page 171, which I haven’t read yet? How could I know? My insecurity told me to write it all down and study it later once it was finished. So I yakked and wrote down everything I could.

Discovery Punishment

I strolled back down the hall to return the file to the prosecutor at the end of the day, my “getting discovery” an unfinished chore.

“I’ll have to come back,” I told her. “I wasn’t able to finish.”

“You weren’t able to finish taking notes?” she asked, her tone sharpening mildly.

“No, it is really quite voluminous,” I said. “My hand was cramping up.”

I chuckled slightly and held up my hand. Hand-cramping, funny. It was also true. I thought my gesticulation might nicely demonstrate why this method was the worst possible way to share the state’s information with defense counsel. Internally I considered how the raising of my crooked hand both expressed yet concealed my intense contempt for this ridiculous procedure. But there was her chilly breeze that told me I had violated some law of the universe.

I was unfortunately oblivious to the crucial, unwritten distinction between “taking notes” and “writing it all down.” “Getting discovery,” as it turned out, was limited to shorthand notes, not the labor-intensive task I believed it entailed. The former was rewarded with future discovery; the latter could get you in trouble.

“Were you writing this down verbatim?” she snapped.

Not fully realizing I was confessing to a procedural crime, I blurted, “Yeah. Pretty much.” She had already turned away, marching down the hallway, waving a finger for me to follow.

“From now on,” said my newly crowned Mistress of Discovery, “you must take only notes and only in my office.” Under the law at the time, I had no choice but to submit. The information in that file would dominate the case and my own investigation. I bowed my head and obeyed.

Subsequent visits involved me sitting in a rather cramped space in a chair in her office, centrally located so that she could be sure I was “just” taking notes.

I rebelled. I became a noisy note-taker, lots of coughing and scratching and yawning, and various other interruptions until she dispatched me back to the waiting room. Once there, with a full and clear-minded understanding of the limits of my “getting discovery,” I then willfully, intentionally, and with malice aforethought violated them, scribbling madly as fast as I could, every letter and every number on every page, furtively glancing about to ensure no one saw me fulfilling my duty under the Sixth Amendment.

You Can See Everything

Travis County liked to call its approach “open file discovery,” a phrase falsely suggesting an open range of information into which the defense lawyer could just gallop, ravish the prosecution files, then ride away, war-whooping whenever he found a defense. Prosecutors who offered such “openness” thought at the time they were being generous and benevolent. But they were in the minority. In contrast to “open file” was its more widespread alternative, “closed file policy.”

Control, secrecy, paranoia—these were the primary traits of the “closed file policy” so deeply ingrained in the Williamson County District Attorney’s office (and so many others) at the time. Evidence of innocence was a thing to be feared, not disclosed, its secrecy made easier under the comfort of an eternally buried file. A “closed file” literally meant the prosecutor shutting the final flap on the file in front of the defense lawyer without him ever viewing a single word. Travis County let you look; Wilco kept it shut.

I can illustrate the experience by recounting my own representation of a hitchhiker who found himself in a semi-truck that, as it turned out, housed drugs deep within its interior. I was eager to see any link between the drugs and my client. The prosecutor led me into his office, grabbed a rather hefty file, and started leafing through it.

“Okay, your guy was the passenger.”

I knew that. “Can you give me an idea, some details, about the case, how he might be guilty?” I asked, hopefully.

The Wilco prosecutor did not look up, but flipped more pages. “And your guy had the keys,” he said triumphantly.

“What keys?” I asked. “What are you talking about?”

The prosecutor smirked. “Why don’t you go ask your client?” He shut the file and slapped it behind him on his plastic credenza.

For a moment, I thought that if I grabbed the file, burst through his window, then read as fast as I could, I just might be able to fulfill my ethical and constitutional obligations. I tapped the glass of his office to test its thickness. I looked out the two-story window. Though neither a physicist nor a mathematician, I concluded I could not flip and read that fast. Also, I would bounce off the glass.

“Nice view,” I said. “You can see everything.”

Beginning January 1, 2014, Texas discovery practice is fundamentally different. Soon, there will be lawyers who never practiced under the antiquated and unfair procedures the Michael Morton Act thankfully sweeps away. This review of criminal discovery is intended not only to convey the significance of this reform, but to memorialize just how bad it was. In time, lawyers in the future will find it all hard to believe.

Discovery Reform—First Act

The source of this insane procedure is found in a badly written statute and a high court’s complicity. In 1965, the Legislature enacted Senate Bill 107, which became effective January 1, 1966, and Article 39.14 was then born. It was an ugly creature, poorly drafted and with qualifications that would cancerously eat away at the statute until it would mean almost nothing at all. Its demise was hastened by a hostile Court of Criminal Appeals that “interpreted” the statute ultimately into a state of permanent decomposition.

The 1965 reform was progress on a small scale. At the time, the defense lawyer couldn’t even inspect his own client’s written or recorded statement. With this information hidden from view, the pre-1965 defense lawyer was severely disadvantaged whenever his client had given a statement to the police. The 1965 Code, for the first time, let the defense lawyer at least look at his client’s purported statement. Confessions being a popular centerpiece of the State’s case, this reform was at least movement in the right direction. TCDLA didn’t exist at the time, but perhaps defense lawyers were joyous over this meager advancement.

The spark for the 1965 discovery reform was the Supreme Court’s 1957 decision in Jencks v. United States.1 Jencks was convicted of falsely asserting he was not a Communist. Two undercover FBI agents, his primary accusers, regularly filed reports with their superiors. Jencks naturally wanted to take a look at those reports, but was denied access. The Supreme Court handed down its landmark decision, which essentially told prosecutors to either disclose reports or dismiss the case. Justice Brennan’s sweeping conclusion that “denial of access to the written records in this case is reversible error” was a direct order to courts to grant defense discovery requests. While Congress got busy passing the Jencks Act, the State Bar created the committee that would produce the language of Article 39.14. Brennan had ignited discovery reform.

The following year the State Bar created a special committee to revise both the Penal Code and the Code of Criminal Pro­cedure, chaired by Fred Erisman. In 1962, the Committee pub­lished its proposals in the State Bar. Besides drafting the discovery statute, the committee recommended (and won) the following language in the new Code: “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.”

The drafts went to the Legislature, which passed many of its recommendations (rejecting a proposal for a notice requirement for alibi defenses), including the discovery language. (Oddly, Phil Burleson, who would become a TCDLA president, railed against the proposal as “one-sided” and unfair to prosecutors.2)

Throughout the years immediately following the ­Jencks decision, lawyers and judges publicly debated the merits and scope of the coming discovery reform. Court of Criminal Appeals Presiding Judge Woodley publicly offered these vague, limp, and ignored suggestions:

Prosecutors should be reluctant to deny inspection of documents in its files where neither the public interest nor the prosecution will suffer. Trial judges should not refuse to order production of documents from the State’s files which justice requires to be produced.3

More encouraging was Charles Tessmer’s timely post-enactment Bar Journal article in which he compared the new statute with the Jencks Act, discussed the relatively three-year-old ground- breaking decision in Brady v. Maryland,4 and concluded that police reports were discoverable under Article 39.14.5 It was a fair reading of the statute, but the Court of Criminal Appeals would, within the span of just three years from its effective date, trounce that interpretation.

The Court-Induced 44-Year Coma

The two commentaries to the new discovery statute reflect the struggle over its meaning. In the Interpretative Commentary, Judge Morrison (who had been a member of the Committee) wrote that the Committee responsible for the discovery statute had reached a consensus that the defense lawyer has the right to inspect the prosecutor’s file. But Judge John Onion countered in his Special Commentary that Article 39.14 was an “innovation” of “limited discovery,” and was no right at all. He reminded readers the statute only meant that “upon proper motion showing good cause, the court may allow” discovery. Judge Onion also noted how prosecutors had unsuccessfully sought mutual discovery, and expressed his opinion that discovery “should be available to the prosecution as well as the defense.”6

The first discovery statute can thus be seen as a compromise between prosecutors’ complete control over the revelation of its files and an actual right to discovery. The drafters left it to the courts to construe the mangled syntax. A review of the early caselaw on criminal discovery in Texas leaves one wondering if the judges at the Court of Criminal Appeals were not waiting like patient spiders to pounce on anything but the strictest reading of the brand-new baby law.

Just 18 months after its birth, in July 1967, the Court (in Sonderup v. State7) let the criminal justice system as a whole understand how hard it would be to use the new law. In its view, counsel must “specifically designate” what he wished to discover, and a discovery motion seeking “all statements, documents and evidence” was too broad. The Court required the lawyer to also explain good cause why he wanted the evidence, prove its materiality, explain how it was non-privileged, establish the reasonableness of the request, and prove the requested items were actually in the State’s possession. In other words, the defense lawyer had to imagine the evidence first before asking for a view, and his imagination better be correct, detailed, provable, and vivid. In less than four years, a defense lawyer’s successful navigation through this unforgiving obstacle course would yield very little in the way of real discovery.

In 1969, the Court wiped out police reports from discovery in Hart v. State,8 surely to Tessmer’s dismay. In that case, defense counsel subpoenaed the police officer and his report, and the officer arrived in court with not only his own report, but the reports of three other officers. Counsel wanted to see the other reports, but the court sealed them. He claimed they were discoverable under Article 39.14, but in a unanimous opinion written by Judge Onion, the Court decided counsel’s discovery request was “not sufficient,” then said this, in a somewhat bitter and dismissive tone: “And even if it had been, the reports by their very nature would have fallen within the expressed exception contained in said Article 39.14.”

No authority or other rationale was cited for this judicial spittle, but it was thereafter cited as precedent for tossing all police reports into a black hole from discovery. Although Tessmer was right, the statute’s exception for the State’s “work product” swallowed the rest of the rule’s promise of discovery, and for the next 44 years, defense lawyers won very few cases regarding discovery and were relegated to live primarily in the hope that prosecutors would follow Brady.

Jump-Starting Discovery Reform

If a defense lawyer suggested reform at any point during those 44 years, the response from prosecutors was a swift demand for “reciprocity.” Forget that the defense and prosecution are not sym­metrical, with the resources and power of the State on one side and a badly paid defense lawyer with little information about the case on the other. Forget that by the time discovery is an issue, the State has already collected the evidence and decided the accused is guilty. Any discussion about how discovery reform might improve the quality of justice was promptly extinguished by this cynical refrain.

But in 1999, something eventful happened. Prosecutors successfully expanded the discovery statute (through SB 557) to give them notice of defense experts. For me, it was too much. At the time, I was one of TCDLA’s lobbyists. I went to the TCDLA leadership and asked for and received permission to kick-start discovery reform.

Discovery reform bills began to appear the very next legislative session in both houses of the Texas Legislature (SB 582, HB 77 and HB 382). By 2003, one bill (HB 2288) left committee, and would have made discovery mandatory upon request. The dam broke in 2005: The Senate passed SB 560, a full rewrite of the statute. While it was killed in the House Criminal Jurisprudence Committee, the Legislature did change the statute (via HB 969), replacing “may” with “shall.” From that session until today, discovery reform was, at long last, under serious and continuous discussion.

The best effect of this stimulus was that prosecutors began to compare their own discovery procedures throughout the state amongst themselves. Tarrant County had long since provided copies of offense reports and other evidence to defense counsel, largely without incident. In fact, it led to fewer controversies and better justice. To the district attorneys still clinging to their files, defense lawyers kept exhorting them to call Fort Worth and learn their ways. In time, discovery reform was either underway or achieved informally, without a statute. The Tarrant County Way worked. None of the outrages prosecutors had been imagining—personal information publicly revealed, offense reports circulated on the internet, witnesses stalked and harrassed—materialized. Over time, the defense bar won through local agreement what we had sought through statute. By and large, the Tarrant County District Attorney model had led the way.

The Genius of Senator Rodney Ellis and the Legislative Effort

In November 2012, Senator Rodney Ellis filed SB 91, another discovery overhaul bill. On March 8, 2013, he filed SB 1611. In a session of lawmakers well aware of Michael Morton’s exoneration and its circumstances, the bill was a magnet of intense interest. I will leave it to others to describe the negotiations over the language of the bill. But there are a few events that ought to be explained or memorialized.

The bill that was filed is hardly the bill that emerged into law. It began as a bill that gave prosecutors new procedural powers. It was not named “The Michael Morton Act.” But in the space of exactly 70 days to its enactment on May 16th, a new age of discovery in Texas opened, founded by one of the premier reformers of the Texas criminal justice system, Senator Ellis.

The TCDLA lobbyists—Allen Place, David Gonzalez, and Kristin Etter—endured one of the most challenging sessions of their careers. They had to handle this bill under conditions more maddening than usual, and I can personally attest to David Gonzalez’s grueling overtime work. It isn’t just the exhaustion from marathon House committee hearings over already-deceased bills or the purgatory of forced meetings of scripted pointlessness. These unsurprising experiences are inevitable in the legislative decision-making process.

The pain that is not inevitable and entirely avoidable originates from the defense bar itself: the random arrival and disappearance of defense lawyers who appear in mid-game for one play, defense lawyers who can’t or won’t take direction, defense lawyers loyal to (or co-opted by) other interests, defense lawyers blinded by the blazing stars of their own egos or mesmerized by their own ill-tuned voices. An enduring lesson to be learned by the success of discovery reform is that the defense bar is far more influential and credible if it will let its lobbyists be its faithful and singular voice.

The bill’s movement was masterfully overseen by Senator Ellis’ staff chief, Brandon Dudley. As negotiations flared up and down, Dudley, like a good chef, deftly adjusted the heat for reform. However protracted the debate might be, however long and spindled the email threads might become, he returned again and again to the fundamental fact facing everyone: An innocent man spent decades in prison—all over something some prosecutors sought to minimize as “a discovery snafu.” He expertly threatened the bill’s death, and he wasn’t bluffing—he could have removed life support at any point. Again and again, he prepared the bill’s eulogy, causing players of all stripes to act ever more frantically to ensure its passage. And whenever it looked like the bill just might be abandoned, Dudley would ask hold-outs and obstructionists an honest, direct but pointed question: Are you killing the Michael Morton bill?

By this time, Michael Morton himself was roaming the hall­ways under the Pink Dome. He would soon deservedly own the bill with his name.

Until that bill took flight from the Senate, it appeared that the measure might fail. Senator Huffman had decided to weigh in, new self-appointed negotiators were complicating matters, and too many defense lawyers, unintentionally or otherwise, were still lending support for reciprocal discovery. Lawmakers were actually about to embrace the horribly misguided belief that Michael Morton would be vindicated by giving prosecutors new, broader discovery authority. The irony was unbearable. The confusion of Brady violations with discovery reform was appalling enough. But rewarding prosecutors responsible for Michael Morton’s persecution with the gift of unprecedented, grand new powers for future prosecutions against future Michael Mortons was tragic and nauseating and wrong. It almost happened.

Fortunately, incoming TCDLA President Bobby Mims personally plunged into this mess with a clear message, a clear position and a clear plan.

March 9th—the Big Shift

Nonprofit representatives were speaking for the defense bar, the TCDLA lobby had been left with mixed signals from its leadership, and prosecutors were well on their way to grabbing new procedural powers in Michael Morton’s name. The TCDLA leadership had been repeatedly told “the train has left the station,” and been lead to believe the bill was a “done deal.” The implication was that TCDLA would look foolish and would fling itself outside the orbit of political influence by not conceding the inevitability of reciprocity. Mims didn’t buy it.

SB 1611, pregnant with new prosecutorial powers, was filed on March 8th, and an op-ed appeared in the San Antonio Express-News heralding discovery reform. Its signatories included a former TCDLA president joining reformers who had already relented to reciprocity. Mims ignored the surrender. Instead, he led the Association toward a more straightforward, practical, and established procedure both defense and prosecution could reliably agree upon across Texas. Deus ex machina from Tyler.

In an amazing circumstance of good fortune, there was a scheduled TCDLA board meeting on March 9th, the very next day following the crusade for the prosecution-friendly proposed law. Mims was more than ready. He wrote and won passage of a resolution that made the crucial points sparkling clear. It read in part:

TCDLA opposes any legislation that would allow the government to deny the citizen a defense or invade the sanctity of the defense counsel’s files. The TCDLA opposes any governmental intrusion into the papers, effects, or files of the lawyers for the citizen accused of crime. For these reasons the TCDLA opposes the so-called “reciprocal discovery” legislation that has been proposed and otherwise known as Senate Bill 1611. And no person other than the individuals delegated by the Board is authorized to speak for TCDLA on this issue to lawmakers.

And he specified those at the fulcrum: “Attorney Allen Place and his aides [are] the sole authority to represent TCDLA before the Legislature of the State of Texas.” The Board passed one of its most important and timely resolutions ever in its history.

It was a TCDLA shift best measured on the seismic scale. TCDLA staked out a principled position and informed the world just who spoke for the statewide criminal defense bar. TCDLA would not negotiate a reciprocal discovery measure, but would advocate for a new law mirroring all those discovery systems already happily in place throughout the state. It is difficult to overstate the significance of this action or refrain from marveling at its synchronicity. That March 9th board decision can be described as nothing less than transformational.

Subsection G: Worst. Subsection. Ever.

The bill did not pass smoothly from that point. The fights over language raged on. Only the alignment had been rearranged. Worse, Senator Joan Huffman insisted on an amendment with one of the worst sentences to appear in a statute, what is now subsection (g), smudging an otherwise clear reformulation of Article 39.14. The subsection begins hopefully: “Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct.” Thus, the opening phrase declares that defense lawyers won’t be required to be unethical, reassuring in its own way.

But then there’s the exception, meaning that the clause contains something that does constrain an attorney’s ability to communicate. What, then, can’t be communicated? In a phrase that could not be more vastly stated, the subsection prohibits the communication of “any information that by reference would make it possible to identify a victim or witness.”

Is this a rule-swallowing exception or just a vague self-contradiction? Would, say, the revelation of the alleged victim’s initials by defense counsel, as appellate courts identify certain persons, be a violation? How muzzled is the defense lawyer after this sentence?

Despite its problematic wording, defense lawyers should not be troubled by this sentence. The practical reality is that this sentence will not constrain the defense lawyer any more than he already is. This subsection was merely a balm to assuage the neurotic fears of some prosecutors who imagined that defense lawyers would suddenly treat the identities of victims and witnesses in less-than-professional ways. In reply, defense lawyers pointed out that they would need to divulge information in the course of their representation and investigation, the same sort of information the exception apparently prohibited. These two perspectives collided, and this sad sentence is the remaining wreckage. It is best left in the junk yard. Defense lawyers have been obtaining the identities of witnesses and alleged victims for a long time without incident. So long as some idiot doesn’t actually splash names and bank account numbers he got from discovery onto a blog or Facebook page or commits some similar bad act, the provision is unlikely to be a source of controversy. Defense lawyers should communicate as they always have done—with discretion.

If this unfortunate subsection does become a problem, the local defense bar should consider clarifying this provision through a written agreement with the District Attorney. Defense bars everywhere would be wise to be vigilant to solve any issue that might arise so that this new way of discovery succeeds im­mediately and permanently. TCDLA should be ready to intervene or support at a moment’s notice.

Information is power. Before this reform, that power was hoarded by one of the two professional adversaries of the criminal justice system, a near monopoly that produced the tragedy of Michael Morton’s wrongful imprisonment, among many other less noticed horrors. In just weeks, that power will now be shared. Texas defense lawyers now have the greatest discovery statute in the country. The wise defense lawyer will treat it with the utmost professionalism and in service to its intended aims of truth and fairness, and in doing so, fulfill the defense lawyer’s duty as an indispensable steward of justice.

Notes

1. 353 U.S. 657 (1957).

2. Phil Burleson, “Against the Revision,” 25 Tex.B.J. 20 (1962).

3. K. K. Woodley, “How Much of the State’s File Is the Defendant Entitled to in a Criminal Case?” 25 Tex.B.J. 953 (1962).

4. 373 U.S. 83 (1963).

5. “Criminal Discovery,” Charles Tessmer, 28 Tex.B.J. 130 (1966).

6. Morrison, J., Interpretative Commentary (Vernon 1965); Onion, J., Special Commentary (Vernon 1965).

7. 418 S.W.2d 807 (Tex.Crim.App. 1967).

8. 447 S.W.2d 944 (Tex.Crim.App. 1969).

Discovery in Texas—83rd Texas Legislature Style

During the 83rd Texas legislative session, criminal justice issues were dominated by Michael Morton, a man who spent 25 years in a Texas prison for not killing his wife. Exoneration finally came to Mr. Morton, an extremely decent and forgiving man who became known to every legislative office as simply “Michael.” In his biennial address to the Legislature, Texas Supreme Court Justice Wallace B. Jefferson called on lawmakers to establish a special commission to investigate wrongful convictions, suggesting that public faith in the legal system is undermined when “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free.” While the bill to establish an innocence commission ultimately failed (although the bill passed the House), the Morton case generated momentum on all sides to legislatively address systemic issues that led to Morton’s wrongful conviction and incarceration. In response to his case, which resulted in part from the withholding of favorable evidence by the prosecution, the “Michael Morton Act” (Senate Bill 1611) was signed into law by Governor Perry. This new statute, which substantially reforms criminal discovery in Texas, becomes effective January 1, 2014.

Before beginning a discussion of the statute, several people need special thanks and a little bit of history needs to be shared. Senators Rodney Ellis of Houston and Robert Duncan of Lubbock were the Senate authors of SB 1611, and Representative Senfronia Thompson of Houston was the House sponsor of this measure. All three of these legislators spent endless hours working on this bill during the spring of 2013. Two Senate staffers, namely Brandon Dudley from Senator Ellis’ office and Megan LaVoie from Senator Duncan’s office, went beyond the call of duty in “managing” this bill from just an idea into a statute. Clearly, Michael Morton and his lawyer, Patricia Cummings, along with Thomas Ratliff, were regulars in the Capitol, and their efforts were immeasurable. David Gonzalez and Kristin Etter, of Austin’s Sumpter-Gonzalez, attended numerous discovery meetings on behalf of TCDLA. Finally, many TCDLA members volunteered their time on this issue, both in and out of the pink granite building in downtown Austin, but three of them need special recognition. Bobby Mims, now the President of TCDLA, became very involved in this bill, and his advice and counsel were “spot on.” Mark Daniel, former TCDLA president and now the TCDLA Legislative Chair, fielded numerous emails and phone calls about SB 1611 and also offered sage advice. Finally, a special thanks to TCDLA member Troy McKinney, who volunteered his time, experience, and expertise on the finer points of SB 1611.

Discovery bills have been filed every session of the legislature since the 1990s. As SB 1611 is the first legislative change of the discovery statute in 40 years, these bills were not enacted as law. Even so, these “unsuccessful” discovery bills did have the effect of getting most counties in Texas moving to some degree of open file discovery. Many of these prior bills were “reciprocal” discovery bills; in fact, the original version of SB 1611 was a reciprocal discovery bill. After considerable discussion, the “reciprocal” elements of SB 1611 were removed before the bill went to the Senate Criminal Justice committee for hearing.

SB 1611 is a relatively short bill that can be condensed to two basic parts. First, the statute addresses what information is obtainable and the manner in which it will be requested or obtained. Second, once defense counsel has the discovery, the remainder of the bill addresses certain privacy concerns regarding the disclosed information. More informally, part one says you get the discovery and part two relates some limitations of what you can do with the discovery documents. The first part of the bill will be addressed initially.

Section 1 of SB 1611 names the Act “The Michael Morton Act.”

Section 2 of the bill contains all of the substantive changes to Article 39.14 of the Code of Criminal Procedure. Subsection (a) of this section now reads as follows:

Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statement of the defendant or a witness, including witness statements of law enforcement officers but not including, the work product of counsel for the state in the case and their investigators and their notes or reports, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

The first comment regarding new section (a) is that the discovery practice is request driven—i.e., the defense is required to make a request for the information. “As soon as practicable,” the State shall produce and permit the inspection and electronic duplication, copying and photocopying of the following as such is automatically provided:

  1.   Any offense reports
  2.   Designated documents or papers
  3.   Written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers
  4.   Any designated books, accounts, letters, photographs, or ob­jects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action

For clarity, the State may provide electronic duplicates of any documents or information. Also, the statute exempts work product from the State or investigators from being discovered.

PRACTICE TIP: Since the “rights granted to the de­fen­dant under this article do not extend to written communications between the state and an agent, rep­re­sen­tative or employee of the state,” it is suggested the defense must still file a Brady/Giglio/Bagley motion in every case.

New Section (a) tracks current law in referencing Section 264.408 of the Texas Family Code and Article 39.15 of the Code of Criminal Procedure. The referenced family law section relates to child advocacy videos and the CCP section references child pornography. In summary, the allowable discovery in these instances would be making the Child advocacy video available to defense counsel or making the child pornography reasonably available to defense counsel.

Laboratories and contractors with the State are now covered under the discovery statute. The State can no longer claim private labs or agencies are not under “their care, custody or control.” The new discovery statute does not authorize the removal of documents, items, or information from the possession of the state and any inspection shall be in the presence of a representative of the state.

PRACTICE TIP: Because of the above limitation, the defense should still file a motion to view materials with the defense expert in private.

Section (c) reads as follows:

If only a portion of the applicable document, item or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.

This section addresses the situation where only a portion of some item of discovery falls under the automatically provided section in (a). If this situation occurs, the State is required to inform the defense that a portion of the item has been withheld. At that point, the Court shall have a hearing to determine whether or not the withholding or redaction is allowed under law.

PRACTICE TIP: In the event the defense is made aware of a redaction or a withholding of discoverable items, a hearing should be requested per Section (b) as this would appear to be the first step in preventing and/or proving a Brady v. Maryland violation.

In keeping with the first basic idea of SB 1611, namely what is to be provided to the defense, we need to skip over to Sections (h), (i), (j) and (k). Section (h) reads as follows:

Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment of the offense charged.

Most practitioners recognize this new section of statutory law as a restatement of the fundamental holding in Brady v. Maryland. There was considerable debate concerning the inclusion of this type of language in the Texas statutes, as such is one of the fundamental case-law decisions in American criminal jurisprudence. Without going into further detail, the consensus of opinion was to place into statute the best Brady v. Maryland definition available. While section (h) is familiar territory and simple, the following information shall automatically be disclosed:

Any exculpatory/impeachment/mitigating document, item or information that tends to negate guilt of the defendant or would tend to reduce the punishment for the offense charged. Because of the mandatory nature of section (h) regarding exculpatory or impeachment or miti­gat­ing information, it is suggested (h) controls over any exception to providing discovery listed in earlier sections (for example, work product and agent communications if such are exculpatory, impeaching or mitigating).

Section (i) reads as follows:

The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.

Section (i) is being referred to as the discovery log section. One of the problems cited by appellate lawyers and others was the inability to pinpoint the specific items of discovery that may or may not have been provided to the defense. This section addresses, with specificity, the discovery that was provided to the defense. The clear intention of the discovery log section is to require a clear listing, at the trial level, of the discovery provided in every case.

Section (j) reads as follows:

Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.

While all sections of this bill will be discussed and debated for years to come, this particular section has already commanded a good amount of attention. It has been suggested this section will cause courts to either slow down or shut down due to the simple requirements intended to show compliance with the statute. It should be pointed out that the requirements of (j) can be met by a written document or by a statement on the record. It is believed most courts will simply add another document to their standard “plea package” for pleas and for contested cases. This requirement can easily be met by the Court having the matter recited on the record.

Section (k) reads as follows:

If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

This section is usually referred to as the “perpetual duty to disclose” provision. While this is common in civil discovery, this is a new concept to criminal law. It should be noted that Section (k) requires the duty to perpetually disclose before, during, or after trial any additional discovery “discovered” by the state. Finally, such must be disclosed to the defendant or the court.

Section (l) reads as follows:

A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.

There are two important aspects to this section, namely that the Court (not the State) may order costs to be paid, and if so ordered, the costs can’t exceed charges prescribed under the Open Records Act.

As noted above, the second half of SB 1611 details some privacy concerns of the statute, now that the discovery is in the defense attorneys’ possession. Section (e) and (f) read as follows:

Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials or witness statements received from the state unless the state under this article unless:

        (1) A court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interest of any victim or witness; or

        (2) The documents, evidence, materials, or witness statements have already been publicly disclosed.

This section begins with a reference to section (f), which will be the next section discussed. The idea in (e) is that the following people may be allowed to view and share discovery:

  1.   Attorney
  2.   Investigator
  3.   Expert
  4.   Consulting legal counsel
  5.   Agent for attorney

Legislative discussions centered on the above list as people in the “inner circle.” The general rule under (e) is the inner circle may view and share discovery but can’t disclose to a third party unless:

  1.   A court orders such disclosure following a good cause hearing or
  2.   The information has already been publicly disclosed.

The legislative intent behind the hearing described in (1) above is to give the defense the ability to have a hearing, following appropriate notice, in the event public disclosure and/or disclosure to a third party is needed in the representation of the defendant. Privacy and security interests of any victim or witness are factors in this “good cause” hearing.

It will be interesting to see the body of law develop concerning section 2 above. This rule is simple—i.e., if the discovery information has already been publicly disclosed, the dissemination limitation to third parties in (e) does not apply. It has been suggested that the following may or will be construed as being publicly disclosed: probable cause affidavits, indictments, news reports, court hearings, magistration, etc. We shall see. While privacy concerns are becoming more pronounced in various areas of the law, our culture becomes more obsessed daily with publicly sharing almost every aspect of our lives. The intent seems rather clear, but the application of this particular section will be interesting.

Section (f) reads as follows:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’ own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

Section (f) works with section (e) in that it clarifies that the following people are allowed to view discovery, namely the defendant, a witness, or a prospective witness. The highlighted individuals became known as the “outer circle.” The “inner circle” may allow the “outer circle” (a defendant, witness, or prospective witness) to view the information provided in this article but can’t give them a copy of the information, other than a copy of the witness’ own statement. However, before the “inner circle” can allow viewing under this section, certain privacy information must be redacted. The private information is described in detail: address, telephone number, driver’s license number, social security number, date of birth, or bank account or other identifying numbers.

The intent of (f) is simply to protect certain privacy information of people contained in witness statements and offense reports (in most instances). While it is true that any 14-year-old American child could locate anybody’s address or landline in two minutes or less on his smart phone, the remaining information is generally considered more private. Redaction is not a new concept, being already widely used, and it is believed this “best practice” will become routine. The last sentence of (f) clarifies that the defendant may not be the agent for the defense attorney under this section.

Section (g) reads as follows:

Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.

The beginning of this section is often referred to as the defense lawyers’ safety valve. In terms of intent, this provision was added to fully recognize that an attorney’s duty under the Professional Rules of Disciplinary conduct is to the client, and that the new discovery statute is not be interpreted as limiting the defense attorney’s ability to communicate regarding his or her case. While the safety valve sentence leads off Section (g), this section states that communication of identifying information of any victim or witness, including name (except as provided in (e) and (f)), address, telephone number, driver’s license number, social security number, date of birth, and bank account or other identifying information is not considered part of “communicating about his or her case.”

In construing section (g), the legislature is clearly trying to protect the same privacy information of victims and witnesses listed in sections (e) and (f). It does for the first time contain “name” of any victim or witness, although such is excepted per Sections (e) and (f). In other words, a name of a victim or witness can be communicated with the “inner circle” and the “outer circle” as previously discussed in (e) and (f). Many believe this section does two things. First, it provides a safety valve for the defense attorney who is zealously defending his or her client. Second, it restates in similar wording the general rule of (e) and (f) that the discovery provided is not to be disclosed to a third party (subject to the two exceptions in (e) and redaction in (f)).

PRACTICE TIP: Unless the information is already in the public realm, if you believe the information should be disclosed, request a hearing under (e).

The last sentence of (g) clarifies that nothing in this subsection prohibits the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purpose of making a good faith complaint. The obvious intent here was not to hinder in any manner a lawyer from pursuing a legitimate complaint to the appropriate forum.

To conclude Section 2 of SB 1611, three final sections should be discussed, namely (d), (m), and (n).

Section (d) reads as follows:

In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and re­view the document, item, or information but is not re­quired to allow electronic duplication as described by Sub­section (a).

Recalling the age-old adage that a man who represents himself has a fool for a client, the Legislature has now given a statutory “amen” to this saying. Basically, pro se defendants do not enjoy the same discovery rights under SB 1611 as defendants with counsel. The State does not have to allow electronic duplication for a pro se defendant.

Section (m) reads as follows:

To the extent of any conflict, this article prevails over Chapter 552, Government Code.

This section is self-explanatory.

Section (n) reads as follows:

This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

Section (n) sets the stage for local bar associations to recognize SB 1611 as a “new day” in Texas, whether or not the local jurisdiction previously had an open file policy or not. This section encourages the State, defense bar, and judiciary to find their best way to implement SB 1611, recognizing they can “go above” the requirements in SB 1611 but can’t go below the new statutory requirements.

Sections 3 and 4 of SB 1611 read as follows:

The change in law made by this Act applies to the prosecution of an offense committed on or after the effective date of this Act. The prosecution of an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

This Act takes effect January 1, 2014.

Section 3 is standard legislative language in new criminal statutes. While there is nothing keeping the State from complying with the new statute prior to January 1, 2014, the actual start date for SB is New Year’s Day 2014.

Rarely has there been a bill more discussed and debated than SB 1611. While other pieces of legislation may have received more floor debate than the new discovery bill, this bill had a wide cast of characters working on it night and day in various work groups. Although I have yet to meet any practicing lawyer who does not have a comment about SB 1611—or would not have added a tweak to the language—the fact remains Texas has a new discovery bill. Defense lawyers will now “get the information” and must comply with some “privacy concerns,” but while critiques, concerns, and questions may linger, the final draft of SB 1611 put a smile on Michael Morton’s face.

There were two other bills brought about by the Morton case that passed the legislature and were signed into law by the governor. The first of these bills was SB 825, filed by Senator John Whitmire, Chairman of the Senate Committee on Criminal Justice. Besides the obvious attention paid to the discovery process in the Morton case, there was considerable attention paid to possible criminal and civil sanctions against the prosecutor in that case. That prosecutor was elected to a District Court bench in Williamson County but recently resigned his bench in September 2013. Representative Senfronia Thompson was the House sponsor on SB 825, which became effective on September 1, 2013.

SB 825 amends Section 81.072, Government Code, which reads as follows:

        (b) The Supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system. The standards and procedures for processing grievances against attorneys must provide for:

        [Sections 1 through 10 remain unamended]

        (11) the commission adopting rules that govern the use of private reprimands by grievance committees and that prohibit a committee:

        (A) giving an attorney more than one private reprimand within a five-year period for a violation of the same disciplinary rule; or

        (B) giving a private reprimand for a violation:

        (i) that involves a failure to return an unearned fee, a theft, or a misapplication of fiduciary property; or

        (ii) of a disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09 (d), Texas Disciplinary Rules of Professional Conduct; and

        (12) distribution of a voluntary survey to all complainants urging views on grievance system experiences.

        (b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution.

        (b-2) For purposes of Subsection (b-1):

        (1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09 (d), Texas Disciplinary Rules of Professional Conduct.

        (2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.

        (3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.

        As soon as practicable after the effective date of this Act but not later than December 1, 2013, the Texas Supreme Court shall amend the Texas Rules of Disciplinary Procedure to conform with Section 81.072, Government Code, as amended by this Act. This Act takes effect September 1, 2013.

These amendments to Section 81 of the Government Code have the effect of once again placing language derived from Brady v. Maryland in the Texas statutes. The statute uses the term “disclosure rule,” which requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.

There are two other important aspects of this bill. First, the bill disallows the State Bar from issuing private sanctions when prosecutors are found to have committed Brady violations. Second, the bill changes the statute of limitations for state bar grievances for Brady violations to begin to run when an exoneree leaves prison.

Historically, the two main defenses to a Brady violation are “I didn’t know about it” and “I didn’t think it was material.” In that regard, consider the following suggestion.

PRACTICE TIP: Following receipt of the automatic discovery disclosures, it is strongly advised you send a written letter specifically requesting the prosecutor to affirmatively look for and uncover Brady and Giglio material.

The third bill signed into law related to the Morton case was HB 1847, authored by Representative Stefani Carter. The essence of this bill was to require specific training to prosecutors regarding their duty to disclose exculpatory and mitigating evidence. HB 1847 amends Chapter 41 Government Code and reads as follows:

Section 41.111. TRAINING RELATED TO PROSECUTING ATTORNEY’S DUTY TO DISCLOSE EXCULPATORY AND MITIGATING EVIDENCE. (a) Each attorney representing the state in the prosecution of felony and misdemeanor criminal offenses other than Class C misdemeanors shall complete a course of study relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case.

        (b) The court of criminal appeals shall adopt rules relating to the training required by Subsection (a). In adopting the rules, the court shall consult with a statewide association of prosecuting attorneys in the development, provision, and documentation of the required training.

        (c) The rules must:

        (1) require that each attorney, within 180 days of assuming duties as an attorney representing the state described in Subsection (a), shall receive one hour of instruction relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal matter;

        (2) require additional training on a schedule or at a time as determined by the court;

        (3) provide that the required training be specific with respect to a prosecuting attorney’s duties regarding the disclosure of exculpatory and mitigating evidence in a criminal case, and must be consistent with case law and the Texas Rules of Professional Conduct; and

        (4) provide for a method of certifying the completion of the training described in Subdivisions (1) and (2).”

This bill, which takes effect January 1st, is simple and straight­forward. It has been suggested by some that education and awareness are important aspects of the discovery process, and this bill is indicative of those suggestions.

While simple, it is specifically suggested that the intent of this training should lead to the basic conclusion that a prosecutor is NOT supposed to make a judgment about what he/she considers “material,” and that he/she should always err on the side of disclosure.

It is often said justice is blind, but there can be no justice if a defendant is “blinded” from the evidence to be used against him in court. Come New Year’s Day 2014 in Texas, criminal defendants will have the ability to see the evidence against them that is held by the State. These three bills are a step in the right direction towards justice for all of the citizens of Texas.

The New Discovery Statute: Applicability to Motions for Discovery in DWI Breath Test Cases and the Need for Preservation of Information in Breath Test Cases

General Comments

Article 39.14 of the Texas Code of Criminal Procedure in its new form adopted by Senate Bill 1611 (eff. 1/1/14) provides for expanded discovery in criminal cases. The new discovery rules represent a significant change in the trial of criminal cases in Texas, including DWI. There are other provisions for mutual discovery and production certification procedures as well as for sanctions that may apply to both the prosecution and the defense under the new statute. These features are important to the defense bar because they impose new duties on criminal defense counsel, but they are not discussed in this paper. Therefore, it is necessary that the practitioner familiarize her/himself with the new law for cases prosecuted after the effective date of the new Article.

A proposed motion for discovery follows this introductory material.

This paper deals with breath testing and the discovery which may be required in a given breath test case under the new law. These suggestions are not exhaustive. However, the comments and the appended motion provide the items the authors recommend to be requested as well as the reasons and authority for them (when available) under the Standard Operating Guidelines (SOGs) for breath testing in Texas. Much work previously has been provided to the authors of this article by Troy McKinney of Houston and Doug Wilder of Dallas for which we are grateful.

Art. 39.14 of the Texas Code of Criminal Procedure provides, in relevant part:

(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

Comment

This italicized phrase, “evidence material to any matter involved in the action,” may be the broadest provision for discovery in criminal cases in the history of Texas jurisprudence. Brady v. Maryland1 was certainly a landmark decision, but its application and enforcement over the years since its advent have been difficult for defense lawyers to say the least.2 The new statute is broad enough to include evidence which may be used on cross-examination to demonstrate things such as the invalidity of the test results, the invalid procedures used prior obtaining the results, faulty machinery, lack of proper certification, lack of proper evidential maintenance procedure, fraud, incompetence, destruction of evidence or other issues related to the technical supervisor’s work or the work of his trainees or supervisors.

The preceding emphasized language of paragraph (a) is broad enough to include the work of contracting technical supervisors who are not employees of the Texas Department of Public Safety. These independent business people will face a significant increase in their photocopying and record keeping expense and labor. The State must provide

. . . tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

As will be shown below, the prosecutors of this State can do two things to make certain that their record-keeping job is simple: make the “Black Mamba” database available to the public in the useable form which the Office of the Scientific Director (OSD) uses daily, and force the Scientific Director to stop hiding his maintenance records from the database. Nevertheless, this language is broad enough to place the duty upon the district and county attorney to maintain records for compliance with dis­covery of breath test data in DWI cases. Again, compliance is simple if the OSD makes the “Black Mamba” database available to the public in the useable form which the OSD uses daily and if the OSD ceases to hide the maintenance records.

Although the breath test slip in a given DWI case may be a public record3 and available to the public through the database, it may not be evidential. Under the SOGs there are certain mandatory steps that must be taken by the technical supervisor in order the make the intoxilyzer’s results admissible as scientific evidence.4 Some reasons a test that appears to be valid but which actually would be inadmissible are: putting an instrument into service without an embossed seal Evidential Instrument Certificate or an embossed seal instrument certification letter; putting an instrument into the field without properly performing the calibration procedure described in The Standard Operating Guidelines Evidential Breath Alcohol Instrument Calibration (OSD-CAL-01) or adjusting the calibration without following said procedure. According to the SOGs, maintenance records shall be organized and detailed enough to allow another technical supervisor to render an opinion in potential litigation concerning the maintenance history of any instrument, so when this is found not to be the case, the test slips should not be admissible.

(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

Comment

This paragraph covers the technical supervisor. It is so broad that it may cover things like emails done in the ordinary course of research or supervision between experts or agency personnel. However, it clearly would not cover work product.5 The language is broad enough to require production of most of the requests in the attached motion.

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

Comment

Again this language appears to place the duty upon the State to provide ongoing access to data specifically related to the case as well as to the quality of the breath testing program generally as it relates to the case. This duty includes updates in SOGs, internal memoranda on the application of the SOGs, disciplinary records of technical supervisors and their supervisors and auditors, emails related to professional performance of personnel or changes in maintenance procedures relevant to a particular case, and certification of operators and their performance records, in­cluding their certification exam results. Some of these things could be viewed on the Black Mamba database, but for reasons known only to OSD they have not been made publicly available.

(a) . . . the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of . . . any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.

If for any reason the district or county attorney fail to comply with the discovery rule which requires the technical supervisor or the OSD to provide data which “constitute[s] or contain[s] evidence material to any matter involved in the action,” the technical supervisors themselves can be held responsible for producing the required discovery.

There is no “trust me” in science.

—Justin McShane

The Need for Preservation of Information in Breath Test Cases

While the SOGs are not in compliance with Brady v. Maryland, they nevertheless provide a template for discovery of the workings of what has been a somewhat amorphous and clandestine breath alcohol testing program in Texas. However, a database6 exists that is connected to every intoxilyzer in the State of Texas, and it uploads every subject test, practice test, lab test, and inspection test recorded by each machine on site. The OSD appears to be attempting to determine in advance what information in his program is to be used as evidence and what is not to be used. To this end there is an exception to machine recording during routine maintenance on site as well as during off-site lab work or calibration/recalibration.7 In those circumstances, the SOGs require that the technical supervisor turn off the recording feature, and that he or she manually print test or other records which reflect the stated work done on the machine as well as the machine’s stated performance during the unrecorded procedure.8 During this time a technical supervisor can alter dates, times, test record numbers, and other data that would ordinarily be uploaded to the database in the machine’s regular subject, practice, inspection, or lab modes. Only that which the intoxilyzer records in its memory is uploaded to the database and ultimately becomes public. The printed records are separately scanned and uploaded into different files.

This off-line requirement is a new procedure brought into effect by the SOGs that were adopted on March 1, 2011. Prior to that date, all maintenance could have been recorded and retained in the database. After March 1, 2011, it is only available in the database if a technical supervisor elects to go outside the requirements of the SOG. The machines have not changed, but the rules have changed. It is now mandatory that the Department and its employees hide their maintenance records from the database until copies of them are requested under the procedures set out in the SOGs. To that end, the SOGs dictate that the electronic data as well as every written or printed document concerning the intoxilyzers and their simulators (reference sample devices) are public records, and that they can be located on the internet or requested from the OSD of the Texas Department of Public Safety in a Freedom of Information Act request, a subpoena duces tecum, or a court order.9 Thus, one may request hard copies or electronic versions of the printed reports of the procedures and the machine’s performance during the procedures, and these copies will be produced.

The intoxilyzer’s memory records actions taken on a chro­no­log­i­cal and sequential basis. Recorded actions can be com­pared to printed records for clarity or to notice any inconsistencies. However, when the recording feature is turned off there is no assurance that the records which are produced will accurately reflect what procedures were performed or what the machine’s responses were to those procedures during that time because both the database and the documents can be altered.10 Additionally, the documents themselves may be falsified, lost, or destroyed.11 If the recording feature is on, it is more difficult to falsify, lose, or destroy records. Therefore, it is curious that the OSD has placed a provision in the Guidelines that the database is not evidence because it can be altered.12

Thus, there is no certainty during discovery that the technical supervisors or the OSD will be complying with Brady since there is no longer a database for comparison of work done on the machine to the printed material produced during maintenance in order that one may be assured that the records which are produced are true. Sadly, this statement is as true for the OSD as it is for defense counsel and prosecutors. Prior to March 1, 2011, the Director could go online and review the work of his field personnel. Now he must travel, for example, to El Paso to look at the technical supervisor’s files in order to determine whether he is doing his job. If an auditor’s presence is announced in advance, a technical supervisor can use this off-line mode to clean up his paperwork.

The OSD requires lawyers, judges, jurors, and the public generally to trust that his personnel are doing their jobs honestly and correctly. Nevertheless, the past performance of several technical supervisors who have been imprisoned, suspended, or had to resign because of fraudulent or incompetent record keep­ing and destruction of maintenance records leads one to believe that trust is a poor substitute for proper documentation in science. Currently, disciplinary actions taken against technical supervisors are not disclosed voluntarily by the OSD. For example, if a technical supervisor is suspended or ordered to re-take the supervisor exam, that fact should be made public and disclosed during discovery. The fact that this type of suspension has happened at least twice in Texas over the past year will probably be news to those who read this paper. The OSD should be required to publish all disciplinary actions taken against its personnel in a way similar to the State Bar, the Medical Board, and other State agencies.

If the work of the technical supervisors is public record, the OSD must make it available on the database so that their work and the machines’ performance can be verified. In this way the vehicle of breath test science can be used by both parties in the DWI trial to convey their views of the case, and the science will no longer take a back seat to law enforcement.

Notes

1. 373 U.S. 83 (1963)

2. Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) [“. . . to find reversible error under Brady, an appellant must show that (1) the state failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the undisclosed evidence constitutes exculpatory or impeachment evidence that is favorable to him, that is, if disclosed and used effectively, the evidence may make a difference between conviction and acquittal; and (3) the evidence is material, that is, it presents a reasonable probability that had the evidence been disclosed, the outcome of the proceeding would have been different”].

3. The opinion in Boutang v. State, 402 S.W.3d 782 (Tex. App.—San Antonio 2013, pet. ref’d) displays ignorance of the realities of breath test science as well as of the Texas program, and it does a great disservice to justice in DWI cases. Intoxilyzer monitoring, maintenance and repair, and strict adherence to science by the technical supervisor are the only assurances that the breath test slip is accurate enough to be called evidence. The intoxilyzer is a tool; it is not the witness. Thus, any technical supervisor who was responsible for its maintenance and calibration during the relevant time must be available to be cross-examined since Texas technical supervisor documents and work have been intentionally hidden, destroyed, and falsified.

4. OSD-TST-01 (1) states that “These procedures were adapted for accreditation purposes.” So, if they are not followed, then the resulting test(s) were not generated using the scientifically accredited procedure. Furthermore, 19.4a of the Administrative Code states “(a) All breath alcohol testing techniques, methods and programs to be used for evidential purposes must have the approval of the scientific director.” The SOGs are the testing techniques and methods that have the approval of the scientific director, and “(f) [a]pproval of any breath alcohol testing program is contingent upon the applying agency or laboratory’s agreement to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program.” For example, SOG 4A1 states: “The capability of the instrument to detect and subtract the effect of acetone shall be tested. A Technical Supervisor shall conduct a printed ACA test and introduce acetone sufficient to cause the instrument to flag the test as an interferent while producing a reference result of 0.000.”(During Technical Supervisor Training the SOGs were described as the Minimum Standards; a Technical Supervisor could do more than the SOGs required as long as all the Directives were followed.)

5. Rule 503(b), Texas Rules of Criminal Evidence.

6. The “database” is technically divided into three parts—“Black Mamba” that every Technical Supervisor Area has a copy of, “Back Mamba” that OSD uses, retrieving all the records from all the copies of Black Mamba in use, and “Op Mamba,” or the “Operator Administrator,” which contains records relating to operator certifications, including written test scores.

7. OSD-TST-01 4.A.1 & OSD-TST-01 5.C.4 & OSD-CAL-01 3.3.C.11, which do not specifically say to use ACA mode, but it is implied in that OSD-CAL-01 3.3.E states that one should affix labels to the resulting Calibration Check Printout. If done in Subject Mode, that would be 20 pages as opposed to one printout.

8. OSD-TST-01 4.A.1 & OSD-CAL-01 3.3.C.11, which do not specifically say to use ACA mode, but it is implied in that OSD-CAL-01 3.3.E states that one should affix labels to the resulting Calibration Check Printout. If done in Subject Mode, that would be 20 pages as opposed to one printout.

9. OSD-TST-01 7.B.

10. SOG (eff. 1/30/2012) 4.3.1; SOG-TST-016.a SOG says that the electronic copies are not as reliable as printed ones, when in fact the reverse is probably true due to the extensive time stamping, sequential Test Record Numbers, and the saving of raw data in places unknown to probably all Technical Supervisors.

11. One example is that of Detriece Wallace, a former Brazoria County technical supervisor, who was imprisoned for falsification of intoxylizer maintenance records. One other example is where a failed inspection in the electronic data of Al McDougall’s does not exist in the “hard copy” form, though another passing inspection exists with the exact same test record number as the failed inspection.

12. OSD-TST-01 6.A & OSD-TST-01 7.C Additionally, 7.C contains statements that the authors believe are completely disingenuous and misleading. For instance, the statement that “Air Blank data is not stored.” Although true, the statement is irrelevant since all Air Blanks are programmed to be 0.000, thus by looking at the electronic record one can tell what are the Air Blanks. If the electronic version shows it as a valid test, all Air Blanks on the printed copy will be 0.000, but if the electronic version shows it as an invalid test, NO Air Blanks will be on the printed copy. Additionally, the SOGs say “the electronic data may be altered or fabricated entirely.” Although this statement is true, the language implies here that printed copies cannot be fabricated when, in fact, printed copies are more easily fabricated and/or altered and/or discarded.

Click Here for Printable Motion (TCDLA Members Only)

November/December 2013 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
16 | Criminal Discovery in Texas— 2014: The Beginning of a Brave New World of Fairness – By Troy McKinney
25 | Texas Discovery: Where We Were, Where We Are Headed – By Keith S. Hampton
31 | Please Do Not Be The One: An Open Letter to TCDLA Members Across Texas Concerning the Michael Morton Act – By Mark G. Daniel
34 | Discovery in Texas—83rd Texas Legislature Style – By Allen D. Place Jr.
41 | The New Discovery Statute: Applicability to Motions for Discovery in DWI Breath Test Cases and the Need for Preservation of Information in Breath Test Cases – By George Scharmen & Ray McMains
56 | Notice of Appearance of Counsel and Formal Request for Compliance With Article 39.14 of the Texas Code of Criminal Procedure – By Randy Wilson

Columns
7 | President’s Message
11 | Editor’s Comment
12 | Federal Corner

Departments
4 | TCDLA Member Benefits
5 | CLE Seminars and Events
52 | Significant Decisions Report

President’s Message: Criminal Discovery—A New Law and New Obligations for Defense Counsel – By Bobby Mims

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On January 1, 2014, the Michael Morton Act becomes effective. This law represents a “sea change” in criminal discovery in Texas. However, it also imposes new obligations and responsibilities on criminal defense lawyers. With this landmark legislation come new obligations and responsibilities for defense counsel.

As officers of the court each criminal defense lawyer is obligated to provide zealous defense of the accused within boundaries of the law and the canons of ethics. However, the legislature has now imposed obligations on prosecutors, defense counsel, and judges to form a closed “universe” for criminal discovery. The thrust of the Michael Morton Act is to make criminal discovery more transparent between the parties. However, this legislatively mandated transparency is strictly limited to only those who have a need to know within this “universe,” and your client may not be one of those entitled to know everything. Defense counsel will have the obligation to redact certain information provided by the prosecution. In the event that counsel wishes to disclose, or the prosecutor wishes to protect, the Act provides that the court should make appropriate orders.

During the legislative process the parties were involved in protracted negotiations. Some of the prosecution interests opposed the Michael Morton Act because they did not trust defense counsel to act responsibly with the full disclosure of discovery. Responsive to those concerns, the legislature imposed limitations on defense counsel and the dissemination of discovery. Defense counsel may not disseminate discovery outside of the defense team and may not give copies of discovery to defendants. The defendant can view the discovery, properly redacted, but may not be given copies.

There are other reasons for withholding discovery from the defendant as a means of client management. My law firm has a long-held policy of not disclosing discovery to defendants until we have obtained a full and credible debrief. This promotes truthful disclosures to counsel and avoids having clients fabricate stories to fit the discovery. Additionally, when an incarcerated defendant is provided copies of discovery, it frequently finds its way into the facility “grapevine,” and jailhouse snitches suddenly appear to “parrot” back exactly what is in the discovery. It is in the interest of counsel as effective advocates to treat discovery very confidentially and only share with the defendant as needed to provide for his or her defense.

Some defense lawyers have expressed concern about their ethical obligation to turn over files to the defendant after the case is closed. After all it is the client who owns the file. However, the statute gives guidance and protection to defense counsel to withhold discovery. The file may be the property of the defendant, but arguably, all discovery contained therein is held in trust by defense counsel and may not be disclosed without compliance under the statute or protection from the court. This Act prohibits the dissemination of discovery except in some very limited circumstances. There will be litigation in this area as the law matures and cases are decided.

The Texas District and County Attorney Association has started training programs for prosecutors to educate them on their obligations under Brady and the Michael Morton Act. TCDLA has scheduled training to educate defense counsels on their obligations to protect against the dissemination of discovery that would violate the act. This edition of the Voice for the Defense contains several articles from respected defense lawyers that may be used as a starting point for understanding the new obligations of defense counsel.

In this “new world” of criminal discovery in Texas, it is hoped that the parties involved, the prosecutors, defense counsel, and the judges will remember that each is an important part of the judicial process. Each has an obligation to the system and to its integrity. Prosecutors should embrace the new law as a tool to settle cases, where they show the defendant their evidence and challenge the defense to “take their best shot” to attack their case. Defense counsel should accept this new responsibility to protect against the dissemination of discovery. Judges should promulgate appropriate orders reflecting the intention of the legislature. All should embrace this act to seek better justice and to promote transparency in the discovery process.

Some may disagree with me, but I do not see prosecutors as the enemy. I see prosecutors as “worthy adversaries” in the judicial process. I am of a generation of criminal defense lawyers who believe that lawyers should be the zealous opponents inside the courtroom but colleagues outside. Recently, my friend and mentor, Buck Files, charter member of TCDLA and immediate past president of the State Bar of Texas, has advanced The Lawyer’s Creed as a guide for all lawyers. He has challenged Texas lawyers to observe the Creed. At the heart of the Creed is “civility” between prosecutors, defense counsel, and judges.

While The Lawyer’s Creed is aspirational, it can also be a guide for defense counsel, prosecutors, and judges as they navigate this new world of discovery in Texas. In this sense members of the Texas Criminal Defense Lawyers Association can accept the new mantle of responsibility, welcome the new world of transparent discovery, and do justice to the act—which bears the name of a man who has suffered from the worst of abuses.

Bobby Mims
President

Editor’s Comment: The Age of Discovery – By Michael Gross

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The egregious cases involving Michael Morton and Anthony Graves resulted in the passage of the Michael Morton Act—Senate Bill 1611. Michael Morton was wrongfully imprisoned for nearly a quarter of a century as a result of a district attorney concealing evidence. The case of Mr. Morton was so egregious that the district attorney has been disbarred, fined, and jailed as a result. Anthony Graves spent 16 years on death row until the United States Court of Appeals for the Fifth Circuit recently overturned his case since prosecutors elicited false statements and withheld testimony. A special prosecutor reviewed the case of Mr. Graves and determined that he is an innocent man. The SB 1611 new discovery statute will provide a new evolution of discovery in Texas designed to eradicate such unconscionable actions by prosecutors. It is crucial, therefore, for those of us brothers and sisters in the criminal defense bar to be well-versed in this new discovery statute. What does the new discovery statute accomplish? How do we implement the discovery statute in our everyday practice? What are the possible pitfalls for us? What does the new discovery statute encompass?

Since the new discovery statute will take effect on January 1, 2014, the editorial staff of Voice for the Defense thought it necessary to devote an entire two-month edition to this new statute. Grant and I asked people with key insight on the statute to submit articles for this special edition of Voice. I am extremely grateful for the hard work and insightful articles submitted by (in alphabetical order) Mark Daniel, Keith Hampton, W. Troy McKinney, Allen Place, George Scharmen, and Randy Wilson. Each of these individuals has provided papers that delve into how this new discovery statute will apply to different criminal offenses and how we need to format and tailor our discovery requests under this new statute. This special edition of the Voice is intended to provide you with all the information you need to properly apply SB 1611 to your cases. Good luck to all of you with the new discovery statute, and I hope this special edition of the Voice proves to be a valuable tool for your practice.

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