1. Gritsforbreakfast
    February 25, 2013 @ 5:31 am

    It’s fine to critique the bill, but foolhardy simply to refuse to negotiate, which seems to be TCDLA’s stance. The truth is there are still plenty of places without open files (e.g., Smith, McLennan) and those that do have informal policies suffer no consequences if they fail to abide by them. Right now, thanks to what’s happened in Williamson County, etc., the defense bar for once has leverage to change the bill if it doesn’t fritter it away with self-congratulatory navel gazing. We’re just at the beginning of the process. Trying to get the bill amended to address the listed concerns would still give you the opportunity to oppose it later if the other side wouldn’t budge. But pretending as some have that the end of the world is nigh if reciprocal discovery passes is hard to swallow given that nearly every other state and the feds all have some version of it.

    Do you find reciprocal discovery a hindrance in your federal cases? If not, what’s the difference?


    • Bobby Mims
      February 26, 2013 @ 10:40 pm

      Smith County HAS an open file policy and has had for years. The open file policy was adopted under DA Jack Skeen who was considered one of the toughest prosecutors in the state. However, he also realized the benefit of disclosing the state’s evidence results in early pleas and fairer settlements.

      the ills of 1986 are not the ills of 2013 and enlightened prosecutors have realized that it is in their interests to have open file policies.

      This legislation is not needed to force something that is developing so that open file is not the rule and not the exception.

      Bobby Mims
      Criminal Defense Lawyer Tyler, Smith County, Texas


  2. Gideon
    February 25, 2013 @ 7:24 am

    As I said before, I think you’re relying too much on the good will of elected prosecutors in your support of “open file” policies. We have them too, here. They mean different things to different prosecutors. None of these “reciprocal discovery” “traps” have hampered my representation of my clients in the slightest.

    You may be right that it may be limiting in some aspects, but it certainly provides for far more than you were mandated to have so far and there’s no restriction in filing motions for the rest.

    I dunno, just seems a bit dramatic to me.


  3. sethasutton
    February 25, 2013 @ 7:41 am

    Grits, we actually have open file discovery in McLennan. And in fact, it just got open-er!!! Last week, Abel Reyna decided to start giving us photo copies of everything, including pre-indictment cases. I’m not saying that I agree or disagree with your post on this thread…I only seek to give you a little updated news. I love reading your blog!


  4. Gritsforbreakfast
    February 25, 2013 @ 8:24 am

    Thanks Seth, didn’t know that. Local lawyers were still complaining about it earlier this month, see:



    • Mark Bennett
      February 26, 2013 @ 10:06 pm

      You are also incorrect about Smith County. Per Bobby Mims, Smith County has an open-file policy [edit: and has for several years]. The trend is toward prosecutors voluntarily opening their files, and for good reason.

      This makes me wonder whether those who support SB 91 are also misinformed about what is happening on the ground.


      • Bobby Mims
        February 26, 2013 @ 10:46 pm

        The supporters of this bill are a few capital defenders, some academics and prosecutors. This is a bad bill and does nothing for the criminal defendant. These reciprocal discovery bills mandating discovery of defense witnesses and their statements will result in more wrongful convictions rather than fewer.

        When the DA’s investigator reads the defendant’s witness statement then the next call will be to the defense lawyer that his witness is gone!

        The open file policy is now the rule and not the exception in Texas.

        This will be a bad law and its supporters are very uninformed on its affect on the citizen accused.

        Bobby Mims

  5. Josh C
    February 25, 2013 @ 11:25 am

    So, I may be unclear, but this looks like an unqualified victory for defendants.

    The “discovery” from the prosecutor’s side seems to be contrary to the 5th ammendment and the 6th ammendment right to counsel (which IIRC includes confidentiality?), and so will collapse. That leaves only a statutory requirement for prosecutors to disclose. That’s good, right?


    • Bobby Mims
      February 26, 2013 @ 10:52 pm

      You may try to assert the 5th Amendment but there is no privilege in defense witness statements. You might assert work product but the witness belongs to no one so that won’t work. If any reciprocal discovery bill passes it will be a boon to prosecutors.

      So far as Federal reciprocal discovery is concerned it does not compare. The Federal system is a plea mill but the mill is screened by very strict DOJ guidelines. AUSA guidelines require a much higher standard of proof before bringing an indictment. Such results in fewer trials but also fewer indictment. The DOJ guidelines for Federal prosecutors are much higher than those of 254 Texas county prosecutors. There is not a legitimate comparison.

      Bobby Mims


  6. Thomas Stephenson
    February 25, 2013 @ 1:56 pm

    Mark: you are correct, Collin County does have an open-file policy now.


  7. Robb Fickman.
    February 27, 2013 @ 8:50 pm

    This bill grew out of concern over what happened to Michael Morton. In case anyone just came out of a coma: Mr Morton WAS ROBBED OF 25 YEARS OF HIS LIFE BY STATE PROSECUTORS!



    Why in God’s name should the above FACTS ever lead to any legislation requiring the Defense to do anything???? ????!?? ( that could only happen in a state where the legislators thought it ok for innocent good citizens to be robbed of their liberty)


    If the EVIL THAT BEFELL MR MORTON is to give rise to any legislation, that LEGISLATION SHOULD BE DIRECTED SQUARELY AT PROSECUTORS who would engage in the evil
    Conduct Seen Here.

    Senator Whitmire is on the right track creating laws that allow for the grieving of these kinds of prosecutors. Let’s hope the law is never needed. But as Woodrow F. Call said, ” Better to have it and not need it, then to need it and not have it”

    We must not trivialize this Horror if we truly intend to try to stop it. The only way to try to stop it from recurring is to pass two laws and kill this Reciprical discovery bill.

    Unless we want another innocent man to be robbed of his life by unscrupulous prosecutors we need to pass
    1. A law that requires Prosecutors to furnish the Defense with police reports & witness statements In every county in this State. This matter is TOO IMPORTANT TO LEAVE TO THE DISCRETION OF ANY SINGLE DA. If The Morton Case taught us nothing else, it better have taught us that.

    2. We need a law that protects all of us from Criminals who have the authority of a prosecutor.
    It hopefully will never be needed, but it will serve as a powerful deterrent to any shady prosecutor whose considering violating the law to obtain the conviction of an innocent man.

    We need a law that says that it is illegal for any prosecutor to hid or manufacture evidence that leads to the conviction of an innocent man.
    I ask you in the name of all who laid down their lives so that we might be free, how We Can Demand Anything Less.

    I am a Texan. I Demand the State Legislature protect us from “Criminal prosecutors”. Pass these three laws and protect us. Good, law-abiding prosecutors should continue doing there jobs. We need them. But Morton has taught us that we must have these protections from ” criminal prosecutors”. Mr Morton paid too steep a price for the Legislature not to act. The actions must be to protect us from the evil that befell Mr Morton. Anything less is a betrayal of Mr Morton & his family.

    Robert Fickman


  8. Thomas R. Griffith
    February 28, 2013 @ 1:04 pm

    Mr. B., out of all of those above Mr. Fickman’s awesome comment & plausible solution deserves immediate considerations for not only a further detailed discussion, it begs for a DP Posting of its very own. Grits, got one and he only asked a comparison question & I’m still confused as to if he supported the bill or not. Thanks.

    Note: Senator Ellis & Company has sold out the Innocence Project and probably needs to start wearing cargo pants with all of those folks in his pockets.

    *If this bullshit passes, I’m calling on Texas Hold ’em rules to be changed to – Players must show their cards to the Player on their right and Dealers have to wink when they have 17. Lawn Darts Rules are next. I’m also from the great state of confusion and not very proud of it due to crapola like this being created much less condoned.


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