“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).
