TCDLA’s Position on Reciprocal Discovery

Letter from Bobby Mims of Tyler, President President-Elect of the Texas Criminal-Defense Lawyers Association, to the sponsor of Texas Senate Bill 91 and his Chief of Staff:

Senator Rodney Ellis & Mr. Brandon Dudley:

I appreciate the time that you and Sen. Ellis invested in today's analysis of the SB91. We the members of the Texas Criminal Defense Lawyers Association understand and appreciate Senator Ellis' dedication to the cause of justice in Texas. Senator Ellis has an unblemished record standing on behalf of the citizen accused for over 20 years. Senator Ellis is one of the Texas patriots for justice in Texas for Texans. The 3200 members of criminal defense lawyers are unwavering in the defense of the Constitution and to the protection of due process and will not be compromised for the sake of political expediency.

I am directed by the Board of Directors of the Texas Criminal Defense Lawyers Association to advise that any form of reciprocal discovery in criminal cases is unacceptable to the 3200 members of the Texas Criminal Defense Lawyers Association and to most of the criminal defense trial lawyers of Texas. By participating in a meeting of 12 independent individuals to "mark up" a proposed bill should not be interpreted in any way to endorse this measure in any form by TCDLA.

Any legislation that requires the defendant to produce any evidence or disclose anything in the defense lawyer's file is an anathema to justice and to a free and independent people.

You personally and in your role as a State Senator have been a bulwark against an overbearing state in protection of the most vulnerable in our society for many years. You, Senator Ellis, have stood for right vs. wrong and your reputation is stainless and your constituents depend and count upon you for justice.

Recently, there has been a movement to "compromise" by certain interests groups purporting to speak for the criminal defense bar and for the accused by individuals who have an interest that is obtained by interests outside of the State of Texas. The Texas Defender Service seeks, for some reason, a reciprocal discovery bill to be passed by the legislature. They do not speak for TCDLA nor for any other criminal defense group other than themselves.

I can assure you that the 3200 members through the TCDLA will vigorously oppose any such legislation and assure you that the Texas Defenders Service and their spokeswoman does not speak for the TCDLA nor any significant number of actual defenders of citizens. Indeed, they are supposed to be an resource group to assist capital defense counsel in capital murder cases. They are very good at this assistance but they rarely to trial level representation of capital cases. Their advice on capital murder defense is valuable as a resource. However, it is the criminal defense trial lawyers who have the difficult mission of defending the citizen accused in Texas courtrooms. The proposed discovery bill promoted by the TDS will make this important mission even more difficult. However, the purpose of the justice system is to convict the guilty and acquit the innocent. The prospects of wrongful convictions will be increased under this bill rather than lessened.

I am requesting that you consider and vigorously oppose any measure that would mandate any rule or law or regulation that would invade the file or province of the counsel for the defendant in a criminal case. After all we must stand for something and this is the "something"!

I can assure you that if a reciprocal discovery statute is adopted by the State of Texas legislature that the members of the TCDLA will do everything possible to comply until it invades the province of counsel, the constitutional rights of a defendant and the right to present a defense…and frankly this is all unnecessary merely to merely assuage the need of a certain interest group to justify their existence to an outside contributor of a grant to "clean up Texas."

I can expand on the purported issue that this legislation seeks to address at your convenience…suffice it to say that this seeks to cure an ill and impose on prosecutors a remedy for something that the prosecutors of Texas are curing themselves without the intervention of the legislature…

Thank you very much for your service to Texas and to justice.

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