Keith S. Hampton

Keith Hampton is board certified in criminal law and criminal appellate law and was recently honored by the Dallas Criminal Defense Lawyers Association, the oldest criminal defense association in Texas. Keith is currently doing his part to suggest to the vanguard of “Operation Lone Star” that prosecuting exhausted refugees for class C misdemeanor criminal trespass violations may not be the best way to address climate change or the complexities of human migration along the Texas-Mexico border. He can be reached at .

The Professional Ethics Committee for the State Bar of Texas – Opinion No. 690

This article was first published in the State Bar of Texas Journal in October of 2020.
Submitted by: Keith Hampton

Question Presented

Does a lawyer who represents a defendant in a criminal matter violate the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so?

Statement of Facts

A lawyer represents a client who is in jail awaiting trial in a felony domestic violence case. While in jail, the defendant receives several letters from a victim in the case that contain relevant information. The defendant gives those letters to the lawyer, who takes the letters to his office for safekeeping. The lawyer does not reveal the existence of the letters until trial. The prosecuting attorney informally asks to inspect the letters, but the lawyer refuses. The lawyer continues to refuse to allow inspection of the letters until ordered to do so by the court after a hearing.

Discussion

“Unlawful” obstruction or concealment in general. Rule 3.04(a) of the Texas Disciplinary Rules of Professional Conduct prohibits the unlawful obstruction, concealment, alteration or destruction of evidence. Rule 3.04(a) provides:

“A lawyer shall not… unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.”

To constitute a violation of Rule  3.04(a),  the  obstruction or concealment must be done “unlawfully.” The term “unlawfully” is not defined in the Rules.

Nevertheless, as discussed below, the term “unlawfully” is generally understood to refer to conduct that violates a statute, court order, or other mandatory disclosure obligation.

Any obstruction or concealment that violates criminal law would clearly be “unlawful” and therefore would violate Rule 3.04(a). Criminal conduct related to obstruction or concealment could also likely violate subsections (2), (3), (4), or (12) of Rule 8.04(a):

“A lawyer shall not:”

(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(4) engage in conduct constituting obstruction of justice; . . . [or]

(12) violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

Whether particular conduct violates a criminal obstruction statute is a question of substantive law that is outside the Committee’s purview. The Committee is not aware of any authority holding that it is a crime for a lawyer to accept and retain ordinary tangible evidence from a client accused of a crime.

Obstruction or concealment of evidence is also “unlawful” if it violates a court order. For example, a lawyer in possession of tangible evidence may violate Rule 3.04(a) by knowingly failing to obey a court order requiring production of the evidence. Such conduct could also violate Rule 3.04(d), which provides:

“A lawyer shall not… knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience.”

Finally, a lawyer acts “unlawfully” for purposes of Rule 3.04(a) if the lawyer knowingly fails to provide evidence when disclosure is mandated by the rules of the tribunal, a subpoena, a discovery obligation, a cooperation agreement, or the like (hereafter, a “Mandatory Disclosure Obligation”). It is not unlawful, however, for an attorney to withhold ordinary tangible evidence pending a ruling on a good faith, legally available objection, motion for protection, or other procedurally legitimate challenge to a Mandatory Disclosure Obligation.

Mandatory Disclosure Obligations of criminal defense counsel. There is no traditional discovery process in Texas that allows the State to obtain evidence from a criminal defendant. Absent a court order, therefore, a lawyer who receives ordinary tangible evidence from a client generally does not have an obligation to turn over the evidence to the prosecuting authority. In such a situation, the lawyer does not act unlawfully, and consequently does not violate Rule 3.04(a), merely by maintaining non‑destructive custody of such evidence.

Special Criminal Evidence. It is generally accepted that a lawyer has a self‑executing obligation to turn over some special types of tangible evidence. This opinion will refer to such evidence as “Special Criminal Evidence,” as opposed to “ordinary evidence.” The definition of Special Criminal Evidence varies by jurisdiction, but generally includes contraband, the instrumentalities of a crime, or the fruits of a crime. Common examples are illegal narcotics, a murder weapon, and stolen jewelry. Depending on the jurisdiction, the definition of Special Criminal Evidence may also include documents and records directly involved in the perpetration of a crime, such as book‑making receipts or falsified records, as well as other direct evidence of the client’s involvement in the crime (such as a bloody glove). The rationales offered to support the obligation to turn over Special Criminal Evidence are that (1) possession of such evidence—by anyone—is usually illegal, (2) preparing the client’s defense does not require counsel to possess the evidence, and any evanescent evidence (such as fingerprints) could degrade while in the lawyer’s possession.

Most United States courts that have considered the issue have held that a lawyer who comes into possession of Special Criminal Evidence—however defined in that jurisdiction—has a self‑executing obligation to turn over the evidence to police or other law enforcement authorities. See Rubin v. State, 602 A.2d 677,  686  (Md.  1992) (collecting cases); see also Hitch v. Pima County Superior Court, 708 P.2d 72, 75 (Ariz. 1985); In re Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (“It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime”); see generally Restatement (Third) of the Law Governing Lawyers § 119 (2000) (lawyer must notify prosecuting authorities or turn over the evidence after reasonable time for non‑destructive testing); Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives under the Stairs; 89 Wash. L. Rev. 819 (2014); Stephen Gillers, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. L. Rev. 813 (2011).

It appears to be the general rule that, before turning over Special Criminal Evidence to law enforcement authorities, a lawyer may be allowed to examine the evidence and subject it to tests that do not alter or destroy material characteristics of the evidence. Restatement (Third) of the Law Governing Lawyers § 119 (2000). It also appears to be the general rule that if a lawyer turns over Special Criminal Evidence acquired from a client, the trial court should not allow the jury to learn the source of the evidence. See Rubin v. State, 602 A.2d at 688 (collecting cases); see also Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim. App. 1997) (holding that trial court properly compelled lawyer to turn over maps received from client when kidnapping victim was possibly still alive, but noting that neither the client’s communications to the attorney nor the attorney’s communications to law enforcement could be admitted at trial); Sanford v. State, 21 S.W.3d 337, 344 (Tex. App.—El Paso 2000, no pet.), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“[b]y allowing the State to recover the evidence, the public interest is served, and by refusing the State an opportunity to disclose the source of the evidence, the attorney‑ client privilege is preserved”). At least one jurisdiction has endorsed a procedure designed to avoid disclosing the source of the evidence to the prosecution. See District of Columbia Rules of Professional Conduct, Rule 3.4, Comment 5 (D.C. Office of Bar Counsel may accept evidence and turn it over to proper authorities without revealing its source, thereby preserving the defense lawyer’s obligation of confidentiality).

At present, the scope of a lawyer’s self‑executing obligation to turn over Special Criminal Evidence has not been well‑defined in reported Texas law. E.g., Sanford v. State, 21 S.W.3d at 344, n. 6 (declining to decide question of whether attorney had an obligation to reveal to law enforcement the location of an instrumentality of the crime, which the lawyer had learned from client); Henderson v. State, 962 S.W.2d at 556 (referring to “cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney”). For purposes of this opinion it is sufficient to note that a Texas court might recognize a self‑executing obligation to produce Special Criminal Evidence. If so, a violation of that obligation would be “unlawful” for purposes of Rule 3.04.

Application to assumed facts. The Committee now turns to the specific statement of facts presented at the start of this opinion. The assumed facts involve an incarcerated client who, during a jailhouse visit, gives tangible evidence (letters) to his lawyer. At the time of receipt, the lawyer is not subject to any order or agreement that mandates producing the evidence to the State. The lawyer declines to produce the letters in response to an informal request from the prosecuting attorney but produces the letters when ordered to do so by the trial court.

The lawyer is not subject to a self‑executing obligation of production by virtue of the special character of the evidence. A letter from a victim does not qualify as Special Criminal Evidence, even if the letter might be incriminating or exculpatory. Specifically, such a letter is “ordinary evidence”— it is not contraband, a fruit or instrumentality of the alleged crime, a document directly involved in the perpetration of a crime, or other direct evidence of the client’s involvement in the crime (such as a bloody glove). A Texas criminal defense attorney has no obligation to turn over ordinary tangible evidence to the prosecuting attorney. That the lawyer receives the ordinary tangible evidence from an incarcerated client does not change the result, assuming the lawyer does not violate the law in the process.

No obligation to accept custody of evidence tendered by client accused of a crime. The Committee also notes that a lawyer is under no obligation to accept or act as custodian of tangible evidence tendered by a client accused of a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and assuming the lawyer counsels the client as to the applicable laws regarding evidence preservation, the most prudent course is often to decline a client’s request to accept custody of evidence related to an alleged crime. See generally “What Do I Do with the Porn on My Computer”: How a Lawyer Should Counsel Clients About Physical Evidence, 54 Am. Crim. L. Rev. 751 (2017) (comprehensive discussion of advice that lawyers should give clients if lawyer declines to take possession of tangible evidence).

Unaddressed issues. This opinion does not address (a) the destruction or alteration of evidence, (b) a lawyer’s obligation with respect to mere information received from a client related to tangible evidence (e.g., the location of a corpse or murder weapon), (c) a lawyer’s obligation with respect to tangible evidence independently discovered by the lawyer or the lawyer’s agents, (d) evidence that is not provided directly to the lawyer by the client, or (e) evidence that might exonerate a co‑defendant or third‑party. The Committee also cautions that it offers no opinion regarding the application of criminal obstruction statutes and that prosecuting authorities may take a broad view on what conduct constitutes criminal obstruction or concealment.

Conclusion

A lawyer who elects to take possession of tangible evidence from a client in a criminal matter may not conceal that evidence from a prosecuting attorney or obstruct access to that evidence if doing so would be “unlawful.” A lawyer’s conduct with regard to potentially relevant evidence is unlawful if it is prohibited by statute, court order, or Mandatory Disclosure Obligation, as defined above. In general, however, a Texas lawyer is not required to disclose ordinary tangible evidence in a criminal matter in the absence of a court order or agreement. The common law may impose a self‑executing obligation of disclosure if a lawyer takes possession of Special Criminal Evidence , such as contraband, instrumentalities of a crime, or fruits of a crime. The precise scope of such an obligation is a question of substantive Texas law to be addressed by the courts. The failure to comply with a judicially recognized obligation of disclosure would be considered “unlawful” and would violate Rule 3.04(a).

Under the facts stated in this opinion, a lawyer who obtains ordinary tangible evidence from an incarcerated client does not violate the Texas Disciplinary Rules of Professional Conduct by refusing to produce the evidence to the prosecuting attorney until ordered to do so.

A lawyer is under no obligation to accept tangible evidence from a client charged with a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and counsels the client regarding evidence preservation, the most prudent course may be to decline a client’s request to accept custody of evidence related to an alleged crime.

Ethics and the Law: New Rule for Clients with Diminished Capacity

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Beginning July 1, 2021, a new Rule of the Texas Disciplinary Rules of Professional Conduct went into effect, Rule 1.16. It is intended to address the ethical problems of representing persons with “diminished capacity” a term that includes persons with mental impairment and intellectual disability. The central problem for lawyers has been the underlying assumption of the ethical rules that the client is mentally sound, an assumption often refuted by the reality of criminal defense lawyers often called upon to counsel and represent clients suffering from a mental disability.

Both the Code and the ethical rules are relatively clear about how to represent a person who is incompetent to stand trial. But the Rules have offered no guidance to lawyers about how to represent a client who is barely competent, but whose judgment is impaired due to illness. In Indiana v. Edwards, 554 U.S. 164, 173 (2008), the Supreme Court called such a client the “gray-area defendant,” legally competent to stand trial but who “lacks the mental capacity to conduct his trial defense unless represented.” Ethically, it has been an ethical no-man’s land.

The problem arises in those areas that award the client autonomy in criminal cases. Rule 1.02 specifically commands that the defense lawyer “shall abide by a client’s decisions” regarding the “plea to be entered,” the waiver of the right to trial by jury, and the decision whether to testify. Moreover, the lawyer cannot, even if it is sound strategy, concede guilt to a jury over the client’s objection. McCoy v. Louisiana, 138 S. Ct. 1500 (2018).

Without guidance, some attorneys decided to treat client decisions like any other, ignoring the impact of an illness on judgment, and dutifully obeying the ethical command even as the client was committing legal suicide. Others went the other direction, with an attitude of benevolent condescension, manipulating the events and the client as a countermeasure against his client’s illness, even against his will.

Rule 1.16 now provides guidance and expressly empowers the lawyer if certain preconditions are met. First, the defense lawyer must first reasonably believe that the client does in fact have diminished capacity due to mental illness. Secondly, this incapacity must render the client unable to “adequately act” in his own interest. Finally, the client’s diminished capacity has put him “at risk of substantial physical, financial, or other harm unless action is taken.”

If these preconditions are met, then the attorney is permitted to take “reasonably necessary protective action.” “Protective action” is intentionally broad to include the various courses of action that might arise. The Rule helpfully specifies that the lawyer may consult with “individuals or entities that have the ability to take action to protect the client.” The lawyer that has been hesitant to speak to others can be reassured that reaching out to those who care about the client is permitted under the Rules. When enlisting other people, the lawyer is directed by the Commentary to “look to the client, not the family members or other persons, to make decisions on the client’s behalf.”

The Rule also expressly addresses the attorney-client privilege issue: “the lawyer may disclose the client’s confidential information to the extent the lawyer reasonably believes is necessary to protect the client’s interests.” The Commentary directs the lawyer to consider the client’s consent before disclosing confidential information under these circumstances. “Only in compelling cases should the lawyer disclose confidential client information if the client has expressly refused to consent. The authority of a lawyer to disclose confidential client information to protect the interests of the client is limited and extends no further than is reasonably necessary to facilitate protective action.”

This Rule was debated and the concerns of some members of the bar should be noted. The Legal Director of Disability Rights worried about the Rule’s impact on clients who expected their lawyer to “be their advocate, not their protector.” Another objection was that the Rule invites lawyers “to make untrained judgments about a client’s mental state with no real guidance.” Time will reveal the wisdom of this Rule, but in the meantime, the criminal defense lawyer does address a frequent dilemma in our profession with some guidance, however minimal.

Coercive Interrogation and the Vulnerable Population

[A] system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).

“[F]alse confessions are [a] leading cause of wrongful convictions[.]” State v. Lawrence, 920 A.2d 236, 266–67 (2007)(Katz, J., dissenting)(citing R. Leo, S. Drizin & P. Neufeld et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis.L.Rev. 512 (2006). “False confessions are most common among the most vulnerable groups of defendants—juveniles and people with mental disabilities. Id. “Individuals who are deaf are especially susceptible to offering false confessions. When they fail to understand what is asked of them, they often accede to what they do not understand, especially when confronted by a person in authority.” “Individuals with Disabilities and the Issue of False Confessions,” 26 Champion 34, 38 (July 2012).

Coercive Interrogation

“Just Want to Get Your Side of the Story”

“[C]ontemporary interrogation strategies . . . are based on the manipulation and betrayal of trust.” Richard A. Leo, Miranda’s Revenge: Police Interrogation as a Confidence Game, 30 L. & Soc’y Rev. 259, 259–60 (1996)(studying five hundred hours of police interrogations). “The purpose of interrogation is therefore not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials . . . [T]he single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure the conviction of offenders.” Fred E. Inbau et. al., Criminal Interrogation and Confessions 8 (4th ed. 2001). This reality is at least recognized, if not enforced, by the Supreme Court of the United States. Miranda v. Arizona, 384 U.S. 436, 449–55 (1966)(police “persuade, trick, or cajole him out of exercising his constitutional rights”). Welcome to the accepted Texas method of interrogation commonly referred to as the “Reid Technique.”

If you are the police, it is easy to exercise. First isolate the person, then assert with certainty his guilt (“we already know, we’ve got witnesses, we’ve got the crime scene evidence, we’ve got the DNA”). Next, make a sympathetic offer of blame-shifting (“I believe you. I really do. So, he was doing most of it?”) or minimization (“You hardly had anything to do with the offense. She did it to you. I feel for you”). When the person still protests his innocence, reject them with confidence and finality (“Hey, we’re past that. You’ve already admitted. We both agree we’ve got the evidence. You’re guilty. Sorry, but under the law, you just are—wish I could change it. It’s no longer open for debate”). After psychological domination is complete, have the person endorse the narrative with his own signature or affirmation. The technique is so effective that ordinary people, even those who know the technique is being employed against them, will endorse false confessions. But some people are more vulnerable than others.

Supreme Court Recognition

This reality is no revelation at this late date, as the Supreme Court long ago reviewed:

The officers are told by the manuals that the “principal psychological factor contributing successful interrogation is privacy—being alone with the person under interrogation.” The efficacy of this tactic has been explained as follows:

 “If at all practicable, the interrogation should take place in the investigator’s office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover, his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law.”

        To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged.

The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner:

In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject’s necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable.

The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say:

“Joe, you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that’s why you carried a gun—for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?”

Before the Mutt-Jeff routine, the Supreme Court noted the effectiveness of developing “inconsistencies” which “serve to deprive” the defendant of a defense. As any practitioner knows, this technique is employed in most roadside investigations, whatever the pretense of enforcement of Transportation Code infractions. Miranda v. Arizona, 384 U.S. 436, 449–63 (1966).

Involuntary Confessions

A confession is deemed voluntary if it is “the product of an essentially free and unconstrained choice,” but “if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973). See also Culombe v. Connecticut, 367 U.S. 568, 602 (1961)(confession must be “product of an essentially free and unconstrained choice” to be voluntary); Rogers v. Richmond, 365 U.S. 534, 544 (1961)(decision to confess must be “freely self-determined”); Blackburn v. Alabama, 361 U.S. 199, 208 (1960)(“product of a rational intellect and a free will”). “[C]oercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, supra at 206. See also Reck v. Pate, 367 U.S. 433, 440–441 (1961); Watts v. Indiana, 338 U.S. 49, 52 (1949).

When the issue is raised, the State bears the burden of proving a statement deemed incriminating was voluntarily given. See Alabama v. Beecher, 389 U.S. 35 (1967); Clewis v. Texas, 386 U.S. 707 (1967); Blackburn v. Alabama, supra. “The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U.S. 219, 236 (1941).

Vulnerable Populations

The Need for Defense Counsel Alertness and Protection

People are more vulnerable than ever before, due to the weakening of constitutional protections against coerced confessions. In 2010, the Supreme Court of the United States held that it is not enough for a person to remain silent after having been informed of his Miranda right to do so. He must affirmatively invoke his right to silence. Otherwise the police are free to interrogate. Berghuis v. Thompkins, 560 U.S. 370 (2010). The same year, the Court created a 14-day period for police to have another go at a defendant who has previously invoked his right to silence to do so again. Maryland v. Shatzer, 559 U.S. 98 (2010).

People with disabilities are even more vulnerable than the general population, as studies have shown.

In the group of sixty-six false confessions, twenty-three were juveniles, and at least twenty-two had an intellectual disability or were mentally ill . . . This tracks the pattern among the first forty such false confessions, in which fourteen had an intellectual disability, three were mentally ill, and thirteen were juveniles . . . Still others among these exonerees, while not diagnosed with such a disability at the time of trial, may have been quite suggestible or may have not been diagnosed because the defense did not retain experts.

Brandon L. Garrett, Contaminated Confessions Revisited, 101 Va. L. Rev. 395, 399–400 and n.18 (2015). In another study of 125 confessions later proven false, almost 30% came from a person with at least one mental disability. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 970–73 (2004). In another, 43% of people exonerated by DNA and who gave false confessions had some form of disabilities. Brandon L. Garrett, The Substance of False Confessions, 62 Stan. L. Rev. 1051, 1095 (2010).

Deaf Persons

The consensus of those who serve the deaf community appears to be that the mean reading level of deaf persons in the United States is approximately fourth grade[.] Having a high-school diploma may or may not indicate an adequate ability to read and understand written documents, nor may possession of a driver’s license so indicate, as the licensing test may have been interpreted for the deaf person.

Linton v. State, 275 S.W.3d 493, 510 n.2
(Tex.Crim.App. 2009)(Johnson, J., concurring).

If the accused is a deaf person, the accused’s statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.

Tex. Code Crim. Pro. art. 38.22, Sec. 3(d).

Constitutional Right to an Interpreter

The right to an interpreter is based in part on the Sixth Amendment’s Confrontation Clause. Garcia v. State, 149 S.W.3d 135, 142 (Tex.Crim.App. 2004)(reversing conviction of defendant who did not understand English and had no translator on basis of Sixth Amendment). But the right is also based on the Fourteenth Amendment’s Due Process Clause as well. “Considerations of fairness, the integrity of the fact-finding process, and the potency of our adversary system of justice forbid that the state should prosecute a defendant who is not present at his own trial[.]” United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2nd Cir. 1970). Prince v. Beto, 426 F.2d 875, 875 (5th Cir. 1970)(appointment of husband of deaf wife as interpreter violated the Due Process Clause).

Interpreter Qualifications: Licenses and Certifications

Section 57.002 of the Government Code and article 38.30 of the Code of Criminal Procedure govern the appointment of interpreters. Article 38.31 specifically governs deaf interpreters.

The interpreter must be licensed by the Department of Assistive and Rehabilitative Services. A deaf interpreter must be certified by the Department of Assistive and Rehabilitative Services. An interpreter for the deaf is qualified if she holds a current legal certificate issued by the National Registry of Interpreters for the Deaf or a current court-interpreter certificate issued by the Board for Evaluation of Interpreters at the Department of Assistive and Rehabilitative Services.

The court in small counties (less than 50,000) or counties that border Mexico may appoint an unlicensed or uncertified spoken-language court interpreter if the language is other than Spanish and there is no licensed court interpreter within 75 miles. Under these circumstances, the interpreter must be at least 18 years old, not a party, and must be qualified by the court as an expert under the Texas Rules of Evidence.

The Health and Human Services Commission creates the rules for the qualifications, training/education, certification, and compensation of certified court interpreters. A violation of the Commission’s rules is a Class A misdemeanor.

No proceeding involving a deaf person may commence “until the appointed interpreter is in a position not exceeding ten feet from and in full view of the deaf person.” Tex. Code Crim. Pro. art. 38.31(d).

“The interpreter may not disclose a communication between the defendant and defense counsel or a fact that came to the attention of the interpreter while interpreting those communications if defense counsel may not disclose that communication or fact.” Tex. Code Crim. Pro. art. 38.31(d).

Competency of Interpreters

The competency of an individual to act as an interpreter is a question for the trial court, and the trial court’s determination of the individual’s competency is reviewed on appeal under an abuse of discretion standard. Martins v. State, 52 S.W.3d 459, 470 (Tex. App.—Corpus Christi 2001, no pet.); Kan v. State, 4 S.W.3d 38, 41 (Tex. App.—San Antonio 1999, pet. ref’d). The accuracy of an interpreter’s translation is a question of fact for the factfinder and not reviewable by an appellate court. Kan, 4 S.W.3d at 43. An unqualified interpreter can result in reversible error. Watson v. State, 596 S.W.2d 867 (Tex.Crim.App. 1980).

Trial Court and Defense Duties Regarding Interpreters

A judge who knows a witness cannot understand English must appoint an interpreter unless the defendant affirmatively waives the appointment. Garcia v. State, 429 S.W.3d 604, 606–07 (Tex.Crim.App. 2014). Similarly, if a motion for appointment of an interpreter is filed by the State or defendant or requested by a witness, the trial court must appoint an interpreter. Consequently, the defendant does not need to do anything else to preserve the issue for appeal. Id.  “Courts have found the absence of an interpreter violated due process where the defendant’s inability to understand the proceeding or an element of the proceeding resulted in the denial of a fundamental right.” State v. Calderon, 13 P.3d 871, 876 (Kan. 2000).

The defense must make an objection regarding a complaint regarding the competency of an interpreter appointed by the trial court or the issue is waived. Montoya v. State, 811 S.W.2d 671, 673 (Tex.App—Corpus Christi 1991, no pet.).

Questions for Interpreters

  • Are you licensed or certified?
  • What agency licensed or certified you?
  • When was the last time you were certified?
  • How many times have you been certified?
  • Has your license ever been suspended?

Juveniles

Juveniles are recognized as a group that requires specific safeguards against the perils of custodial interrogation. Tex.Family Code Ann. § 151.003 and § 262.104; Juvenile Justice Code, § 54.03 and § 51.09. In one study, over 30% of 103 juveniles proven innocent through DNA had falsely confessed, and over half of the eleven- to fourteen-year-old group had confessed falsely. Joshua A. Tepfer, Laura H. Nirider & Lynda M. Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904–05 (2010).

The Court of Criminal Appeals has said:

In deciding whether a particular interrogation was custodial, courts must consider numerous factors[.] . . . The subjective intent of the police officer is one such factor, but courts will disregard an officer’s testimony that a defendant was not a suspect and not in custody if the testimony is belied by the facts of the case. . . . “The courts cannot be expected to decide cases solely on the basis of self-serving statements by the defendant or the interrogating officer.” .Ê.Ê. Among the other factors which may be considered, one which “has consistently impressed our court [is] whether or not the focus of the investigation has finally centered on the defendant.” . . . Another factor which may be considered is whether there was probable cause to arrest.

Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979)(internal citations omitted). The Court of Criminal Appeals outlined at least four general situations which constitute custody:

(1) when the suspect is significantly deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to go.

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996).

Some courts have found it appropriate to “apply a wider definition of custody for Miranda purposes” where juveniles are concerned. See, e.g., In re Joshua David C., 116 Md. App. 580, 698 A.2d 1155 (Md.App. 1997). The voluntariness of juvenile confessions is gauged according to the totality of circumstances. Fare v. Michael C., 442 U.S. 707, 725 (1979). Accordingly, a defendant’s age should be included in any legal analysis of whether she was in custody for purposes of her entitlement to constitutional and statutory protections against coerced statements.

[W]hen . . . a mere child—an easy victim of the law—is before us, special care in scrutinizing the record must be used.

***

        He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a [child] in his early teens. This is the period of instability which the crisis of adolescence produces. A 15-year-old . . . is a ready victim of the inquisition. Mature men might possibly withstand the ordeal. . . . But we cannot believe that a [child] of tender years is a match for police in such a contest.

Haley v. Ohio, 332 U.S. 596, 599–600 (1948)(reviewing confession of a 15-year-old interrogated for 15 hours by police relay teams). Due process accordingly requires that “the greatest care must be taken to assure that the admission was voluntary, on the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of right or of adolescent fantasy.” Matter of Gault, 387 U.S. 1 (1967). See also Gallegos v. Colorado, 370 U.S. 49, 53–55 (1962)(five days of isolating 14-year-old from mother or other adult, deemed coercive).

Intellectually Disabled

“[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. As two recent high-profile cases demonstrate, these exonerations include mentally retarded persons who unwittingly confessed to crimes that they did not commit.” Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002)(citations omitted).

Previously identified with the stigmatizing term “mentally retarded,” the preferred term used today is “intellectually disabled” or “intellectual developmental disorder.” The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), defines the terms as a disorder with onset during person’s developmental period that features “intellectual functioning deficits” (i.e., difficulties in school and learning from experience, reasoning and problem solving, abstract thinking, and judgment) and “adaptive functioning deficits” (i.e., “failure to meet developmental and sociocultural standards for personal independence and social responsibility”).

There are four levels of intellectual disability severity: profound, severe, moderate and mild. Three of these categories—profound, severe, and moderate—are so bad, the people in them are the least likely to ever have contact with the criminal justice system. If these people are ever arrested and accused, there are issues of incompetency to stand trial, among others, that result in a treatment not easily traceable. They are the minority of people who are so disabled.

People with a profound intellectual disability (1–2%) fall below an IQ of 20–25. It hardly takes an expert to perceive this level of disability, as they can hardly express themselves verbally, among other very extreme deficits. People at the “severe” level (3–4%) have a slightly higher IQ range (between 20 and 40) than the “profound.” Like their even more disabled counterparts, they don’t understand numbers, can’t tell time or count money. They have limited language and must be helped with bathing, eating, and dressing themselves. A greater number (10%) fall within the “moderate” range with IQs at 35–55. Those in the moderate range can actually become independent on basic household chores and with personal care. With great support from family coworkers and other helpers, they can even work and manage money.

But the vast majority—about 85%—fall within the “mild” range (50–70). These are exactly the people who will be crushed by the criminal justice system because they don’t look like the character “Lennie’ from John Steinbeck’s Of Mice and Men. It is easy to believe the person is “just playing dumb.” Police and prosecutors who believe it have little difficulty convincing juries. As the “Making a Murderer” shows, it convinces judges as well.

“Making a Murderer”—Interrogation of Brendan Dassey

The Netflix documentary showed the repeated interrogation of a 16-year-old special education student, Brendan Dassey, with an IQ between 74 and 81 and described as “highly suggestible, docile, withdrawn, with extreme social anxiety and social avoidant characteristics, and more suggestible than 95% of the population.” Dassey v. Dittmann, 860 F.3d 933, 938–39 (7th Cir.), reversed, 877 F.3d 297 (7th Cir. 2017)(en banc). It is better observed on the videotape.

[Police Interrogators]: What else did he do to her? We know something else was done. Tell us, and what else did you do? Come on. Something with the head. Brendan?
Brendan: Huh? . . .
[Police Interrogators]: What else did you guys do, come on. . . .
[Police Interrogators]: We have the evidence, Brendan, we just need you ta, ta be honest with us.
Brendan: That he cut off her hair.
[Police Interrogators]: He cut off her hair? In the house?
Brendan: mm-huh. . . .
[Police Interrogators]: OK, what else?
[Police Interrogators]: What else was done to her head?
Brendan: That he punched her.
[Police Interrogators]: What else? [pause] What else? . . .
[Police Interrogators]: What did he make you do, Brendan? It’s okay. What did he make you do?
Brendan: Cut her.
[Police Interrogators]: Cut her where?
Brendan: On her throat. . . .
[Police Interrogators]:: What else happens to her in her head? . . .
[Police Interrogators]: Come on, Brendan, what else?
[pause] [Police Interrogators]: We know, we just need you to tell us.
Brendan: That’s all I can remember.
[Police Interrogators]: All right, I’m just gonna come out and ask you. Who shot her in the head?
Brendan: He did.
[Police Interrogators]: Then why didn’t you tell us that?
Brendan: Cuz I couldn’t think of it.
[Police Interrogators]:: Now you remember it? [Brendan nods “yes”]. Tell us about that then.

Interrogated with Intellectual Disabilities: The Risks of False Confession, 70 Stan. L. Rev. 643, 669–680 (2018).

Receipt of Incriminating Evidence and the Need for Protection

Texas criminal defense lawyers who have received physical evidence incriminating their clients are in an ethical no-man’s-land and vulnerable to prosecution. There is currently no clear ethical rule to guide the defense lawyer and no real protection from being used as a law enforcement tool against your own client. This article explores some of the dimensions of counsel’s dilemma and ultimately recommends that TCDLA undertake a determined effort to amend the Texas Disciplinary Rules of Professional Conduct (and get a new Code provision) with a specific rule that informs defense counsel about what course of action he or she should take. I also recommend putting the “Special Rule” regarding the attorney-client privilege back into the Code of Criminal Procedure and a new rule giving lawyers due process and protection to discourage targeting defense lawyers and their law offices.

Cold Comfort

The Texas criminal defense lawyer who possesses evidence that incriminates his client may find comfort regarding the crime of tampering with physical evidence. Section 37.09 of the Penal Code provides that a person commits an offense when “knowing that an investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]” Unless your client has appeared in your office with no “pending” investigation, your receipt of incriminating physical evidence can subject you to prosecution. However, none of these criminal provisions apply under Section 37.09’s subsection (b) “if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.” In light of statutory law, how well-protected are you under Texas law against prosecution, even as a sort of academic exercise?

If Subsection (b) is read as an exception, the prosecution will have to allege and then prove beyond a reasonable doubt that the “record, document, or thing” is not privileged and not work product.1 Assuming this is an exception, the question then becomes what exactly is being excepted, and at least as im­portantly, how hard it will be for the prosecution to meet its presumably formidable burden.

Ordinarily, the attorney-client privilege applies only to con­fidential communications under Rule 503 of the Rules of Evidence, which would take the receipt of physical evidence out of its protective purview. But there is a “special rule” within the Rule literally called “Special Rule in a Criminal Case”2 that renders confidential “any other fact that came to the knowledge of the lawyer” by reason of the attorney-client relationship. Assuming that you can be said to be “concealing” the pen and meth at your office, the existence and location of the evidence are “facts” which came to you in the context of your representation. Your failure or refusal to disclose these facts would therefore ap­pear to be privileged, and thus you should not be said to be committing the offense of concealing evidence.

But the Court of Criminal Appeals still requires the privilege to be “strictly construed,”3 which means it will be read against you and your client. With strict construction in mind, the special rule only applies to facts discovered by reason of the attorney-client relationship. But that relationship only arises when the client and lawyer have engaged in confidential communications for the purpose of rendering “professional legal services.” A prosecutor could easily argue that Greta simply used the attorney to stash her meth and conceal evidence, and thus her email and the items were outside a legitimate attorney-client relationship.

More straightforwardly, the prosecutor could cite the exception to the privilege. There is no privilege if the lawyer’s services were sought or obtained to help or enable anyone to commit a crime. You are in possession of contraband and you are helping Greta conceal evidence. Under this rationale, the privilege would arguably not apply and you can be prosecuted for concealing evidence (and for possession of the meth as well).

Before there was Section 37.09 of the Penal Code, the Court of Criminal Appeals decided the attorney could not use the privilege as a shield for criminal conduct in this memorable recorded conversation as reflected in the infamous case cited below:

Client: Hello, Jimmy, I went to the extremes.
Defense Attorney: What did you do?
Client: I just went to the extremes.
Defense Attorney: You got to tell me what you did before I can help.
Client: Well, I killed her.
Defense Attorney: Who did you kill—the driver?
Client: No, I killed her.
Defense Attorney: Did you get rid of the weapon?
Client: No, I still got the weapon.
Defense Attorney: Get rid of the weapon and sit tight and don’t talk to anyone, and I will fly down in the morning.

The Court decided the attorney-client privilege did not apply because it was “not within the realm of legitimate professional counsel and employment,” but rather advice “on how he can safely commit a crime.” Clark v. State, 261 S.W.2d 339 (Tex.Crim.App. 1953).

Section 37.09(b) also includes “work product” as a shield against prosecution. But it refers to the work product of the “parties.” When you received the meth and the pen, you were not a party. Once that indictment is filed, your client is a party (the defendant) and the State of Texas is a party, but the lawyers, state and defense, are not. Presumably, this reference in Section 37.09(b) is to you, the accused lawyer, the defendant in your prosecution for concealing evidence.

Work product is either absolutely protected “core” product (the lawyer’s own mental processes) or “other” product.4 This “other” product—i.e., documents and materials gathered in the course of the preparation of the defense—gets only qualified immunity. This state of affairs leaves the defense lawyer’s work product as either a sanctuary or a safari park. But under this pretrial scenario, this case falls outside either category of the lawyer’s work product immunity, leaving you no protection from disclosure.

The exception in 37.09 is not an impervious legal cocoon into which the defense lawyer can slip himself, confident that he is safe from prosecution. Even at this theoretical level, it appears on closer examination to be a professional coffin instead. Reading the exception most favorably to the hapless defense lawyer, it vanishes like a mirage when exposed to the real world.

The Search of Your Office and Your Subsequent Prosecutions

Assume the police execute a search warrant on your law office (Bud went to the police). The police find the meth and you get arrested for possession of it. A hard-working homicide detective, aware that you are defending Greta, assists in the search. He notices the pen on your desk and matches it to various photographs of it (the victim loved his pen).

You are forced to appear at Greta’s murder trial and, over your strenuous objection, testify about everything you know about that pen. The pen is introduced as evidence over equally vigorous objection. Greta, of course, is convicted, and yes, she feels betrayed: That supposedly protected “special” relationship is irrevocably over, if it can ever have existed in the first place.

But you were also charged for concealing the pen. The prosecution relies heavily on jurors’ belief that criminal defense lawyers will do anything for their clients, most especially hide evidence. And now, the prosecution argues:

Lawyers cling to privileges they only give themselves. As a prosecutor, I believe in rules that govern us as a civil society. Above all else, I care about the rules meant to find truth so that justice may be served.

He may have a bar card, but people, he is nothing more than an accomplice. A bar card is not a license to commit crimes. The fact that Greta—his beloved client—committed murder with the pen obviously meant nothing to him. It is a reasonable inference that the pen remained on his desk long enough for this lawyer to fully understand what it was. Perhaps he rolled it around in his fingers. Perhaps he simply laid the pen openly for his amusement and pleasure. It was a trophy.

You weren’t just concealing a murder weapon. You were using your power as a lawyer to help a killer escape jus­tice. Maybe she will. But you won’t.

Don’t let this lawyer hide behind his privilege. Send a message to all criminal defense lawyers that you care more about truth and justice than technicalities. If you do, then maybe the next time a killer hides his knife or gun or bomb-making supplies with his lawyer, law enforcement can act far more quickly and we can all be safer, lessen crime and achieve justice—even to self-appointed members of the privileged class.

You are convicted and your sentence is partially probated. You appeal. How will you fare?

You may not fare well. Under Henderson v. State,5 the Court of Criminal Appeals has cast the privilege as pliable as a plastic mold. It bends according to the facts of the case. If the attorney-client privilege is said to be a shield against disclosure, it is a paper shield.

The Henderson Case

Cathy Lynn Henderson was the babysitter for an infant. When the parents returned, she and the baby were missing. Less than two weeks later, the FBI found Ms. Henderson in another state, but without the child. She eventually said that she accidentally killed the baby and buried the child in a wooded area near Waco.

Henderson then invoked her right to counsel. At this point, all law enforcement knew was that the dead infant was somewhere “near” Waco, a description of little help in locating the grave, or to be stated more precisely and legalistically, the site of crucial evidence to support a prosecution for capital murder.

Having invoked her Sixth Amendment right, her federal public defender entered the picture. The police testified he (the PD) revealed to them that his client had drawn a detailed map revealing the location of the child. The public defender denied ever making this disclosure. When asked about a map, he told them that “all materials” would be forwarded to Henderson’s Austin lawyer.

Unsurprisingly, the local police sought the map from the Austin attorney. When the lawyer refused, prosecutors obtained a grand jury subpoena duces tecum. The lawyer refused to appear. The local sheriff then obtained an arrest warrant for the lawyer and a search warrant for her car and office. They found no maps.

The attorney, meanwhile, was represented by a large swarm of other Austin lawyers. They very clearly asserted the attorney-client privilege. The prosecution, in turn, filed a motion to compel production of the map.

The matter was now squarely joined before the trial court. Was the map Henderson drew protected from disclosure under the attorney-client privilege, the oldest privilege in Anglo-American law? If so, what would a local judge do, facing a barrage of intense public attention and the desperation of grieving parents?

The trial court compelled Henderson’s attorney to turn over the map under the fiction that it was intended to be disclosed to law enforcement and “not made for the purpose of facilitating the rendition of professional legal services.” The police found the body and a jury sentenced Henderson to death.

The Court of Criminal Appeals, per (not yet Presiding) Judge Keller, affirmed the death sentence and removed the map’s protection from the attorney-client privilege.6 The State had argued that the privilege did not apply; that if it did, the exceptions applied; and if there were no exceptions, the exclusionary rule would not apply.

The Court agreed the privilege applied. It rejected the State’s argument that the illegally obtained map fell within any crime-fraud exception to the privilege. The Court also agreed that the exclusionary rule applied. Under the law at the time, then, the fruits of the map should have been suppressed and Henderson’s conviction reversed.

Instead, the Court decided to create a new balancing test against the privilege and held that “the privilege must yield” . . . “to the extent necessary to satisfy the policy interest in question,” such as to prevent a death or serious bodily injury. In such a case, the attorney “must disclose” the evidence to law enforcement. The Court praised its new law because it “gives effect to the privilege while taking into account strong policy interests in favor of disclosure. In many ways this reasoning is similar to cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney.” The similarity noted by the Court morphed just a few paragraphs later into Texas law.7

Where Henderson Leaves the Criminal Defense Lawyer (and Greta)

The Post-Henderson Conversation

Client: Hey, Darla, thanks for taking my call.
Defense Attorney: What’s up?
Client: I need some advice.
Defense Attorney: Sure.
Client: I kidnapped this kid from middle school.
Defense Attorney: Oh, no. That is very bad.
Client: Here’s the situation—
Defense Attorney: Stop. I need to warn you. Whatever you’re going to say, I have to go and tell the police.
Client: You’ve represented me before. I thought you were on my side. I need and want you to be my lawyer.
Defense Attorney: I am. That’s why I’m telling you to not tell me anything. It’s the only way I can guarantee my undivided loyalty to you as your lawyer.
Client: Well, I’m concerned about the kid because—
Defense Attorney: I’m sorry, you tell me, I tell the police.
Client: (Long Pause) This seems f****d up.
Defense Attorney: You’re telling me.

Implicit in the Court’s reasoning is that the defense attorney will feel no obligation to tell his client that if he gives him certain information, he—his own lawyer—will be transformed into the government’s most important informant. The Henderson judges assumed the defense lawyer would keep this secret so that he might gather the very information that could lead to his client’s execution. Were Henderson the law at the time the federal public defender met with his client, he would most certainly have told her not to draw a map and not to tell him where the child’s body was located.

The present rule spares the lawyer for his betrayal while employing his assistance to convict and punish, even win a verdict of death against, his own client. From the client’s point of view, this solution seems a bit tailor-made for members of the criminal justice system. How might Greta react when, as that pen is offered into evidence, the source of the evidence—her own lawyer—is scrupulously hidden from the jurors? So much for full disclosure, she might wryly observe. And so much for confidence in your own lawyer’s loyalty.

What might the lawyer herself think? Perhaps she reflects about how, as the Supreme Court has trumpeted, “a defense lawyer best serves the public, not acting on behalf of the state or in concert with it, but rather by advancing ‘the undivided interests of his client.’”8 Or maybe she laments ever having taken the case in the first place.

Six months later, in Swidler & Berlin v. United States,9 the Supreme Court of the United States considered whether the attorney-client privilege should be balanced against the sort of strong feelings the judges of the Court of Criminal Appeals experienced in Henderson. Specifically, the District of Columbia Court of Appeals invented a test to determine whether the privilege should yield to other interests after the client dies. The Supreme Court decided in favor of the privilege.

Unlike the Court of Criminal Appeals, the Supreme Court recognized that “the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place.” Most importantly, the Supreme Court rejected the balancing test created by the Court of Criminal Appeals:

[A] client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege’s application. For just that reason, we have rejected use of a balancing test in defining the contours of the privilege.10

The Texas defense lawyer remains in the crossfire of Henderson and Swidler & Berlin. Where the defense lawyer most needs clarity, the current state of the law leaves an intolerable level of uncertainty. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct relies on the meaning of the privilege in the state and federal rules of evidence. Consequently, the lawyer’s license is just as jeopardized as the lawyer himself.

I lack full confidence that the lawyer can depend upon the courage of the courts. The attorney’s crisis will not occur in a case involving an invalid license or shoplifting. The contro­versy will arise in the notorious case. It will involve a crime en­veloped by political considerations and an emotionality so strong it can influence judges to bend the privilege or “balance” it on a rigged scale. As the Henderson case demonstrates, the courts surrendered the privilege at the very moment it most needed vindication. We need to replace the paper protection with something more cast-iron.11

The Value of the Attorney-Client Privilege and Its Fulfillment

I have concluded that criminal defense lawyers have no choice but to offer to the State Bar and to the Legislature language that is robust and clear enough to fulfill the very important other in­terests the privilege evolved to undertake. In an era in which obtaining “truth,” i.e., factual material, is a virtue eclipsing all others, the value of contrary interests needs reminding.

The attorney-client privilege fosters an environment conducive to full disclosure by the client. The more the attorney learns of the case, the better he can fulfill his Sixth Amendment role.12 Unlike any other area of the law, honesty from the client is most fleeting in criminal cases. The shoplifter doesn’t want to talk about the reality of the camera. The guilty capital client doesn’t wag his tongue about the crime or about the usual horrors leading to it. The driver who sped assumes he exceeded the speed limit. These are the facts vital to the ultimate aspirations of truth and justice because while they seem incriminating, they may—under the law—be exculpatory.

Maybe the confessed shoplifter actually didn’t commit a crime, but he thought he had. Perhaps the execution-centered and fully guilty client is in fact not eligible for the death penalty. The driver was fast, but what did the instruments read? It is the defense lawyer under the benefit of the attorney-client privilege who can more reliably make those determinations.

The seasoned defense lawyer has experienced falsities from clients, but truth as well. Law must give us space. With the space that the privilege provides, we can separate the innocent far more quickly and justly than anyone else.

The law must enforce the privilege not as an accommodation in criminal cases, but as a special and emphatic necessity. Lawmakers and judges both must value the privilege because it fulfills the ultimate aspirations we have as a civil society.

The attorney-client privilege is more than just a vehicle for ensuring the competing interests of the criminal justice system. Like any privilege, it constitutes a private zone of individual autonomy which the government cannot reach. Privileges do more than serve narrow legal interests. They are zones of privacy and autonomy. Without them, there would be no counterweight for the individual’s rights when they collide against the government’s powers. They are more than rules of evidence; they are in practice vital to a liberal democracy.

With these sentiments in mind, I looked at the two competing approaches to the problem of the receipt of incriminating physical evidence. One approach is what I call the deliver-it-to-the-cops solution. The other is what I call the give-it-back rule. The first is favored by some states. The latter is the rule expressed by the ABA Criminal Justice Standard 4-4.6. What I’ve written is largely a sort of rearrangement of the ABA’s standard.

Lawyer Duties upon Receipt of Criminal Evidence

(a) A lawyer who receives a physical item under circumstances implicating a client in criminal conduct shall disclose the location of or shall deliver that item to law enforcement au­thorities, including prosecutors, only if:

(1) such is required by specific court order or required as an express duty under law or;
(2) the item received is plainly contraband or;
(3) in the lawyer’s professional judgment the lawyer cannot retain the item in a way that does not pose an unreasonable risk of physical harm to anyone.

(b) Unless required to disclose under subsection (a), the law­yer shall return the item to the source from whom the law­yer receives it, except as provided in paragraph (c).

(c) A lawyer may receive the item for a period of time during which the lawyer: (1) intends to return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4) intends to test, examine, inspect, or use the item in any way as part of the lawyer’s representation of the client; or (5) cannot return it to the source. If the lawyer retains the item, the lawyer shall do so in a man­ner that does not impede the lawful ability of law en­force­ment to obtain the item. The lawyer shall retain the item in the lawyer’s law office and, other than locations for testing, inspection or use, no other place except under (a)(3).

(d) After testing or examining physical evidence pursuant to paragraph (c)(4), defense counsel should return it to the person from whom it was obtained, unless there is reason to believe that the evidence might be destroyed or used to harm another.

Under this rule, the defense lawyer can either have Greta come get her pen, or keep it safely at the attorney’s law office. Either decision is ethically defensible. The lawyer’s choice would be heavily dependent on the peculiar facts and circumstances of the case.

The lawyer has to get the meth to law enforcement. The rule does not explain how to accomplish that task. It seems in­advisable to stroll into the police station and plop it down. One solution is for the lawyer to deliver the meth to another location, then have someone else alert the authorities, perhaps an anonymous tip. Greta may be unhappy, but you’ll have to explain that you are bound by the ethical code and keeping her meth is not an option.

In light of the current judicial hostility toward the attorney-client privilege, I also think we need to put back into the Code the language that had been there since 1856. It was repealed when the Court of Criminal Appeals was enabled to write the rules of evidence in 1986. Then the Court tried to wipe out the rule in 2008. In the meantime, the Court had decided Henderson, leaving the privilege subject to the unobstructed winds of judicial whim. Reenacting that language does not advance the concerns expressed herein. But it does remove the argument that the attorney-client privilege is an evidentiary toy that can be moved and removed as easily as it currently can be.

Art. 38.09. Attorney-Client Privilege. An attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which comes to the knowledge of such attorney by reason of such relationship.

But perhaps we need an additional statute:

Art. (New). No subpoena, warrant or order may issue for items or documents in the office of an attorney in a criminal case pursuant to the attorney-client relationship unless (1) the attorney is given notice before the subpoena issues and (2) the State proves at a hearing by clear and convincing evidence that:

(a) the items or documents were obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(b) the attorney has an express duty under law to deliver the item or document to law enforcement;
(c)
the item received is plainly contraband;
(d) the retention of the item or document is conducted in a manner that will impede the lawful ability of law enforcement to obtain the item; or
(e) the retention of the item or document is in violation of the rules regarding receipt of incriminating evidence.

This language is meant only as a draft that I hope instigates thoughtful discussion and vetting before TCDLA interfaces with lawmakers and/or the State Bar, if it decides to do so. I do not recommend that we wait for the next crisis to hit. In the meantime, maybe publication will help the defense lawyer thoughtfully wondering what to do with her own “Greta.”

If you have a “Greta experience” or anything similar, call both the Ethics Committee (Robert Pelton, chair), at 512-646-2734, and the Strike Force (Nicole DeBorde, at 713-536-6300, or Reagan Wynn, at 817-336-5600).

Notes

1. Section 2.02 of the Texas Penal Code

2. Eight years ago, the Court of Criminal Appeals sought to abolish the rule, led by Judge Cathy Cochran and law professor Steven Goode. Craig Jett, Tim Evans, and myself (and others) opposed the suggested abolition. Richard Anderson wrote a persuasive letter in opposition. After a spirited public debate on the blog Grits for Breakfast, we won retention of this provision.

3. Strong v. State, 773 S.W.2d 543 (Tex.Crim.App. 1989).

4. Pope v. State, 207 S.W.3d 352, 357–58 (Tex.Crim.App. 2006).

5. Henderson v. State, 962 S.W.2d 544, 556–558 (Tex.Crim.App. 1997).

6. I was the attorney on direct appeal.

7. Henderson, 962 S.W.2d at 556–558.

8. Polk County v. Dodson, 454 U.S. 312, 318–19 (1981)(quoting Ferri v. Ackerman, 444 U.S. 193, 204 (1979).

9. 524 U.S. 399 (1998).

10. Swidler & Berlin v. United States, 524 U.S. at 409. See Note 2.

11. It also does not inspire confidence that the Court of Criminal Appeals a decade later sought the abolition of the very “Special Rule” which was Henderson’s only and ultimately failed line of defense.

12. “As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.” Fisher v. United States, 425 U.S. 391, 403 (1976).

The Michael Morton Act’s Undiscovered Country

The Michael Morton Act continues to transform the landscape of criminal justice in Texas. Lawyers who graduated from law school since its inception will never experience the difficulties defense lawyers once faced in investigating and preparing their cases.1 Once, we had to cobble together investigations and guess at the State’s case, employ “examining trials”2 in hope of discovery, and invoke the Gaskin rule.3 Remember those relics of a cat-and-mouse system of revelation? Today’s young lawyers and prosecutors and future judges will never have known it.

Today, we can now build robust cases in defense of our clients, thanks to the Michael Morton Act. We can offer juries a more thorough telling of the other side of the story, ensuring reliability of their determinations. We can challenge junk science and bad investigations. Like never before, we can help to ensure justice.

Lawyers Can Read the Offense Report—Why Can’t Trial Courts?

The Act’s influence may ultimately impact law in new, unanticipated ways. This article explores how it may change the nature of three pretrial litigation practices: motions to quash, as-applied challenges, and sufficiency adjudications. First, let us look at motions to quash the indictment/information which are based on some defect in pleading.

It has long been the law in Texas that challenges to charging instruments are purely a matter of pleading—i.e., charging instruments could be challenged “based solely upon the language within its four corners, as a pleading.”4 No court could ever “quash” or dismiss or set aside any charging instrument based upon the production of evidence.5 Anything outside pleading defects has always been irrelevant.

This long-standing jurisprudence made sense in light of the fact that no one except the prosecution actually knew the details of the State’s case. No court would be in a position to make a decision regarding a charging instrument based on any evidence presented by the defense because it could not know the State’s best case for guilt. Maybe the judge suspected that the official charge really was bogus, but a court could hardly make that determination based upon a one-sided, self-interested version of the facts offered by the defense. Today, thanks to the Morton Act, courts can make those calls decisively and reliably.

Courts Can Terminate Bad Cases

The Michael Morton Act does not alter challenges to charging instruments per se. The defense attorney should continue the good practice of examining the indictment or information for pleading defects and moving courts to correct them. But the Morton Act offers more. It makes it possible for the first time in Texas legal history to make pretrial determinations beyond mere pleading defects. It offers the promise of trial judges ending baseless prosecutions by straightforwardly dismissing cases where no offense has been stated. Is this some new-found form of judicial power? Hardly.

Courts have long exercised the power to decide the validity of initial accusations—i.e., affidavits asserting criminality for warrants of arrest or search.6 The Fourth Amendment mandates that only a judge may issue warrants. The Fourth Amendment also “requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following [a warrantless] arrest.”7 Judges thus can and do routinely read documents generated by law enforcement officials and decide whether official action—arrest or search—is justified under law. If it is lacking, the judge terminates further proceedings by refusing the warrant or rejecting the affidavit.

It is true that this judicial determination can ordinarily be made only within the “four corners of the affidavit,” which is to say that the examination for sufficiency is confined to the information contained within the document itself.8 Yet even within this framework, a court can still make its determination based on matters outside the affidavit. Specifically, the court can suppress the government’s evidence if the defense attorney establishes by a preponderance of the evidence produced at a suppression hearing that the affidavit was based on material falsities.9 Thus, judicial authority has long extended beyond the rejection of an affidavit for lack of probable cause—they possess the power to suppress evidence obtained through a false affidavit through an examination of evidence outside the four corners of the police “pleading.”

There is no reason why this familiar framework of judicial review of an initial accusation cannot be applied to charging instruments after the Michael Morton Act. It is time for defense lawyers to move judges to act precisely as they would as if they were presented with a search warrant affidavit that fails to establish probable cause—or an accusation proven to be false, or an arrest warrant for described acts that do not constitute a crime. It is time for offense reports to be used offensively by the defense through pretrial litigation. It is time for courts to make these determinations from the offense reports both sides now possess. Texas law has run out of excuses.

Give them the offense report, as Tom Delay fervently hoped he could, and let a trial judge make the same determination appellate justices, justices of the peace, municipal judges, and magistrates of all stripes routinely make. Trial judges can read the Penal Code. Trial judges can also now read offense reports and surely determine whether a criminal offense is stated. If defense counsel finds herself searching an offense report for acts that might violate criminal law, perhaps she should file a motion, attach under seal the offense report, and ask the trial court to see if it can find a crime. If no crime can be found, then the court should dismiss the case and let that person go on with a personal life without further governmental interruptions.

A dismissal under these circumstances would save everyone time and energy best spent elsewhere on other cases where criminality is not so strained that it must be searched for. These cases involve people who should be spared any further experience with the criminal justice system. For those cases in search of a Penal Code offense to be violated, trial courts should dispatch them from the docket routinely and without hesitation.

You’ve Read the Report—No Crime

What if the offense report accurately references a penal statute, but the stated facts do not trigger it? What if a trial judge could read an offense report, assume all of it to be true, including hearsay, reasonable inferences, and everything in between, yet conclude the facts of the offense report do not violate law? The Michael Morton Act lets trial judges follow their constitutional role and do the right thing.

Before the Michael Morton Act, the Court of Criminal Appeals reaffirmed its preclusion of defendants challenging penal statutes in a pretrial setting on the grounds that the application of the statute would be unconstitutional. The rationale has been that only “during or after a trial on the merits” may a trial court “have the particular facts and circumstances of the case needed to determine whether the statute or law has been applied in an unconstitutional manner.”10

The Michael Morton Act removes this rationale. Courts can have all the “particular facts and circumstances of the case” necessary by reading the offense reports with the assumption that all assertions therein are true. Then it can consider the de­fendant’s argument that the statute under which he has been charged will be applied unconstitutionally against him. If it is unconstitutional to apply the statute, the court can dispose of the case without the necessity of trial, thereby conserving judicial resources and preventing an unconstitutional prosecution—precisely the purpose of pretrial determinations.11

Similarly, an accusation that does not constitute an offense could be dismissed pretrial. The long-standing objection—that the court cannot make that call because it cannot know the facts of the case—no longer exists since the Michael Morton Act. A judge can read, and there is now something for the judge to read which goes to the merits of the case itself. A judge can peer into the government documents and see if she can find a crime just as easily as she can re-read an affidavit in search of probable cause. Harassment prosecutions alone could be prevented merely by judges reading the offending email.

The co-defendants prosecuted for Election Code violations in the corrupt Tom Delay (former Texas congressman) scheme certainly would have benefited from the ability of the trial courts to reach the merits of their claim that they committed no crime. They certainly tried to get the matter settled pretrial, but the Court of Criminal Appeals precluded it.12 Ultimately, the Court would find that the alleged conduct failed to constitute a violation of the law.13 Had this procedure been available to the co-defendants to Delay’s scheme to circumvent Texas election laws, they would have escaped conviction, as he ultimately did.14

While Delay was denied this procedure, former Governor Rick Perry may yet win it. His pretrial writ appeal is pending at the Court of Criminal Appeals, and he is making this argument. Or I should say the Third Court of Appeals is begging the discretionary court to permit appellate courts to entertain “as applied” challenges to statutes. In a interminably long opinion, Ex parte Perry, No. 03-15-00063-CR (Tex. App.—Austin, July 24, 2015), the Third Court complains “its hands are tied” with such fervor and repetition that its opinion looks more like a brief to the CCA than an opinion. Keep your eye on Ex parte James Richard “Rick” Perry, PD-1067-15. On October 7, 2015, the Court of Criminal Appeals granted his petition for discretionary review, and the cause was argued on November 4, 2015. If Perry’s appeal maintains this speed, look for a decision by early Spring.

Ex parte Carrillo and the Vacuum of True Remedies for Discovery Abuse

In Ex parte Carrillo,15 the relator16 sought to compel the Lubbock County District Attorney to provide discovery “as soon as practicable,” and end its practice of denying discovery until after indictment. The Court of Criminal Appeals summarily denied motion for leave to file, but Judge Alcala issued a concurring opinion. She found that it was “unclear” whether the relator had a clear right to relief in light of the “leeway” that 39.14’s phrase “as soon as practicable” appears to provide. She did agree that the DA’s policy of withholding discovery until after indictment was wrong:

[T]he Legislature’s broad use of the phrase “any matter involved in the action” cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation. I, therefore, agree with relator’s assertion that, by delaying a defendant’s access to discovery until after grand-jury proceedings and indictment, the district attorney has effectively read an additional provision into the statute that changes the “as soon as practicable” language into “as soon as practicable after return of indictment by the grand jury.”

Judge Alcala also found that there exists two remedies for the State’s failure to abide by the Morton Act: “Relator may seek to challenge the State’s failure to comply with Article 39.14 in the trial court by filing a motion to exclude evidence at the appropriate time. Furthermore, if relator is convicted of the charges of which he is accused, he may challenge the State’s failure to comply with discovery requirements during the course of his direct appeal.” Really? Let’s see how that works out.

Discovery Abuse: Late Disclosures

Tardy Brady disclosures put the burden on the defense to demonstrate how it was prejudiced by the late revelation.17 That rule precludes a reversal if the defense attorney put the late disclosure to “effective use at trial.” This “effective use” rule puts the defense lawyer in a damned bind: Do nothing with the new exculpatory evidence and you have just increased the odds for conviction; be “effective” and waive goodbye to a new trial in which defense counsel would be far more effective. This state of affairs provides no remedy and no deterrence against late Brady disclosures. On the contrary, it effectively rewards gamesmanship whereby a prosecutor can avoid any consequence simply by disclosing Brady material just before or even during trial.

Tardy disclosures of prejudicial evidence, on the other hand, appear to put the burden on the State to justify why it with­held evidence of, say, its best prosecution witness or most prejudicial evidence until late in the process. Under current law, such evidence is excluded only if the violation of a discovery order is “willful.”18 Oprean v. State is the latest affirmation of the remedy of exclusion.19 What, then, is “willful” in the context of discovery abuse?

The Oprean prosecutor—previously ordered to give “[a]ll videos” to defense counsel—only did so after the jury found the defendant guilty. The video was the defendant’s unflattering previous DWI. The prosecutor knew about the videotape and had signed the original trial judge’s discovery order to disclose it before trial.

When the prosecutor sought to introduce the tape, defense counsel objected he had never seen it and moved to exclude it. At that point in the trial, a new judge had replaced the judge who had crafted the original discovery order. Facing the new judge, the Oprean prosecutor argued that the original order did not specify punishment evidence under Article 37.07—an apparent parsing of the discovery order. The prosecution also argued that defense counsel never asked for such 404(b) notice (if true, it is utterly inexcusable).20

“Because the prosecutor knew about the discovery order and chose to invoke Article 37.07,” a majority of the Court concluded, “she made a conscious decision to violate the plain directive of the discovery order.” It was, the Court found, a “calculated effort to frustrate the defense.”21 The Court implicitly recognized how the prosecution sought to manipulate the new judge by exploiting the original order.

If the prosecutor has deliberately delayed the disclosure of prejudicial evidence, do not move for exclusion until after jeopardy has attached.22 Otherwise, the State can appeal the exclusion of its evidence. This is precisely what happened in State v. LaRue,23 another case involving the late disclosure of prejudicial evidence.

Defense counsel in LaRue sought the results of DNA tests to defend his client accused of capital murder. The prosecutor got the lab report on April 17, 2002, and after repeated requests by defense counsel, finally disclosed it to the defense attorney—after the commencement of jury selection on February 13, 2003. The trial court excluded the evidence as the remedy for the prosecution’s discovery abuse, just as Judge Alcala contemplated in her Carrillo concurrence.

The Court of Appeals reversed, and the Court of Criminal Appeals affirmed. “The State should have produced the evidence in more timely fashion,” the LaRue Court frowned, “especially considering the repeated requests made by defense counsel.”24 But the Court found the prosecutor did not intend to violate the discovery order (which was vague as to time, place, and man­ner), nor did the prosecutor intend to harm the defense. The prosecutor may well have been grossly negligent, even reckless, but because he did not act in bad faith, he did not act “willfully,” the Court concluded, and hence the evidence should not have been excluded.

If the rest of the Court shares Judge Alcala’s confidence that the exclusion of evidence and appeal are adequate remedies, then the discovery process is likely to settle into something less than the promise of the Michael Morton Act’s “as soon as practicable” requirement. Unless bad faith can be proven, there will be nothing to discourage prosecutorial procrastination, and defense counsel should expect surprising prejudicial evidence to appear sometime around trial with the same leniency as last-minute Brady revelations—precisely the custom before the discovery statute was changed, as if the Morton Act was never enacted.

Enforcing the “As Soon As Practicable” Requirement

Competent defense counsel will seek discovery as soon as possible. Not only can defense counsel find witnesses and evidence while still relatively “fresh,” but a speedy investigation can inform the prosecutor that the case he was handed is actually half-baked, or that the police got the wrong person, or the case is tainted by corruption, or other insights. Grand juries can be better informed. In short, the system as a whole benefits greatly from the defense getting discovery quickly.

Earlier this year, the state defense bar discovered that in some jurisdictions peppered around the State, the prosecution had decided that it had no duty to disclose until after indictment. A district attorney’s policy of providing discovery based on some self-invented condition plainly violates Rule 8.04(a)(12) of the Texas Disciplinary Rules of Professional Conduct, as the Professional Ethics Committee of the State Bar of Texas has held. The Committee reasoned:

Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the pro­vi­sions of article 39.14 unless de­fense lawyers first agreed to waive cer­tain rights of their clients. Under ar­ti­cle 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose con­di­tions not found in article 39.14 before making the re­quired disclosures.

Tex. Comm. on Prof’l Ethics, Op. 646 (2014). See also Tex. Disciplinary R. Prof’l Conduct 8.04(a)(12), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (West 2014). These jurisdictions are a clear minority, one that continues to shrink.

Judge Alcala’s concurrence in Ex parte Carrillo affirmed that the setting of preconditions was a misguided reading of the plain language of the statute. But she also did not think the matter was remedied by way of an application for writ of mandamus. How, then, can the defense obtain timely discovery from DAs who have decided to comply with the statute only after indictment (or some other condition, like “upon signing this document”)?

The filing of a motion in the district court is useless because the court only obtains jurisdiction after indictment. Tex. Const. art. V, § 12(b). Instead, the defendant should file a writ application in the district court so that it has jurisdiction to enforce Article 39.14 of the Code of Criminal Procedure.25 The district court can then order the district attorney to comply with the statute by promptly and diligently providing discovery, as explicitly required by law.

As far as late disclosures, the current remedies are uncertain and inadequate. If the courts will do little else than give occasional stern lectures, the legislature may need to step in. I would suggest a statute that gives the defense an option: a mandatory continuance for a period of time that would ensure the full and fair presentation of the newly disclosed evidence or a mandatory mistrial in cases of late Brady disclosures. My bet would be that this form of prosecutorial misconduct would evaporate pretty quickly, and the “as soon as practicable” would be honored as if it were mandatory Texas law (it is).

As for late disclosure of prejudicial evidence, I would give the defense the option of a mandatory continuance to investigate and challenge the newly disclosed bad evidence or exclusion of the evidence. I would also tie the exclusion to its effect on the trial and not the good or bad faith of a particular prosecutor.

In the same way Brady violations are regarded,26 the trial judge should not care so much why the disclosure was so late, but should consider its degree of prejudice to the defendant’s legal defense. Put another way, I would have the unethical prosecutor have his bar card yanked for bad faith later, but I more immediately care about the fairness of the proceedings against my client. I want a remedy that speaks directly and effectively to this basic interest.

Trial judges can readily exclude such evidence via the notice provisions in the evidentiary rules and can also sanction the prosecution for deliberate sandbagging. Cases where the prosecutor acted in bad faith are easily remedied by a diligent court. Absent those scenarios, however, trial courts should fully exploit their authority to discourage prosecutorial gameplay.

I have not asked Michael Morton about his views on the procedural and ethical considerations of how to deal with this new frontier of prosecutorial misconduct. But I believe that if he had to choose between well-informed lawyers before trial and the disbarment of a prosecutor 25 years later, he would opt for the former. He, like anyone else accused of crime, should not have to choose, but be guaranteed both a fair trial and an honest prosecutor. We need truly adequate remedies against this form of misconduct—remedies we do not currently have, but the Michael Morton Act surely demands. Foremost, we must ensure fair trials so that the innocent may be acquitted. We can get to disbarments and 10-day sentences later.

Notes

1. For a taste, the reader is referred to “Texas Discovery: Where We Were, Where We Are Headed” (Voice for the Defense, November 20, 2013).

2. Tex. Code Crim. Pro. 16.01.

3. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1962).

4. State v. Seibert, 156 S.W.3d 32, 36 (Tex. App.—Dallas 2004, no pet.)(emphasis added).

5. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994)(Clinton J., dissenting).

6. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

7. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

8. See, e.g., Hegdal v. State, 488 S.W.2d 782 (Tex. Crim. App. 1973); McLennan v. State, 3 S.W.2d 447, 448 (Tex. Crim. App. 1928).

9. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

10. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011).

11. Weise v. State, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)(pretrial as-applied challenges are appropriate “for situations in which the protection of the applicant’s substantive rights or the conservation of judicial resources would be better served”).

12. Ex parte Ellis, 309 S.W.3d 71 (Tex. Crim. App. 2010).

13. Delay v. State, 465 S.W.3d 232 (Tex. Crim. App. 2014).

14. Full disclosure: I wrote the amicus brief on behalf of Texans for Public Justice and argued that Tom Delay was guilty and his conviction should be affirmed.

15. Ex parte Carillo, Nos. WR-83,345-01 & WR-83,345-02 (Tex. Crim. App., June 26, 2015).

16. Relator was represented by Chuck Lanehart, Allison Clayton, Laurie Key, Dick Baker, and Philip Wischkaemper.

17. Little v. State, 991 S.W.2d 864 (Tex. Crim. App. 1999).

18. Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). The majority opinion also left open the possibility of exclusion of evidence for negligent or reckless failure to comply with a discovery order “if the appellant suffers some disability by virtue of the lack of discovery and the trial court takes no timely corrective action.” Id. at 855 n.8.

19. Oprean v. State, 201 S.W.3d 724 (Tex. Crim. App. 2006).

20. If you hear the word “besides” in an answer for the quest for truth, keep asking.

21. Oprean at 728.

22. In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996). In non-jury trials, jeopardy attaches under the federal constitution when the first witness is sworn or the judge begins to hear evidence. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Under the Texas Constitution, however, jeopardy attaches in a bench trial when both sides have announced ready and the defendant has pled to the charging instrument. State v. Torres, 805 S.W.2d 418 (Tex. Crim. App. 1991). For purposes of precluding a State appeal, you should follow the federal rule.

23. State v. LaRue, 152 S.W.3d 95 (Tex. Crim. App. 2004).

24. Id. at 97.

25. The application for writ of habeas corpus should cite the district court’s broad authority under Article 5, § 8, of the Texas Constitution to issue writs. It should also remind the court of its inherent authority to manage its own docket. State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002).

26. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct 1555, 131 L.Ed.2d 490 (1995)(“the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).

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).