Report Finds Openness Lottery in Discovery Proceedings In Texas

If you are accused of a crime in Texas, your chances of a fair trial will vary depending on the openness of the jurisdiction you are being tried in.

That’s the conclusion of a new report which found the amount of evidence that can be obtained from prosecutors varies widely across the state. The report found more uniform transparency could help prevent wrongful convictions.

Texas Defender Service, an organization which represents death row inmates, and Texas Appleseed, a nonprofit that campaigns for social justice, researched discovery practices in 40 counties across Texas.

“They found that the wide variation in discovery practices among prosecutors makes access to justice dependent upon the jurisdiction in which the defendant is charged,” reported the Texas Tribune.

Rebecca Bernhardt, a Texas Defender Service spokeswoman, was quoted in the article as saying the research bolstered legislation filed in both the House and Senate that would create “uniform discovery procedures and require both prosecutors and defense lawyers to share more information in criminal trials.”

“We hope that lawmakers get an understanding of the status quo and understand the problems that exist under our current, outdated discovery statute,” Bernhardt said, according to the Texas Tribune.

The survey adds more impetus to efforts to reform the discovery laws in Texas. This is not a new campaign, but it’s picked up pace since Michael Morton was exonerated in 2011. Morton spent a quarter of a century in prison for his wife’s murder before DNA evidence revealed his innocence.

The case of Morton highlights alleged prosecutorial misconduct. Morton’s lawyers claim the prosecutor who secured his conviction deliberately failed to submit important evidence that could have prevented the wrongful conviction and led to the apprehension of the real killer.

At present a court of inquiry is looking into whether former prosecutor and current Williamson County state District Judge Ken Anderson should face criminal charges over his key role in the Morton case.

Anderson denies the allegations and says he did nothing wrong in the case.

But the issue is wider than the Morton case. Supporters of reform say an open file policy requiring prosecutors to disclose information would help prevent miscarriages of justice such as Morton’s.

In the recent study, researchers found that “discovery rules vary not only from county to county, but sometimes even among the state lawyers in a single prosecutor’s office,” reported the Texas Tribune.

The report recommends lawmakers require automatic discovery so as defense lawyers are not required to file a motion to obtain evidence against their client. It says prosecutors should always turn over documents such as witness statements, police reports, expert reports and criminal histories.

Some of the procedures that are taken for granted in some states, are almost nonexistent in parts of Texas.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.