President's Message: Criminal Discovery—A New Law and New Obligations for Defense Counsel - By Bobby Mims

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Wednesday, November 20th, 2013

On January 1, 2014, the Michael Morton Act becomes effective. This law represents a “sea change” in criminal discovery in Texas. However, it also imposes new obligations and responsibilities on criminal defense lawyers. With this landmark legislation come new obligations and responsibilities for defense counsel.

As officers of the court each criminal defense lawyer is obligated to provide zealous defense of the accused within boundaries of the law and the canons of ethics. However, the legislature has now imposed obligations on prosecutors, defense counsel, and judges to form a closed “universe” for criminal discovery. The thrust of the Michael Morton Act is to make criminal discovery more transparent between the parties. However, this legislatively mandated transparency is strictly limited to only those who have a need to know within this “universe,” and your client may not be one of those entitled to know everything. Defense counsel will have the obligation to redact certain information provided by the prosecution. In the event that counsel wishes to disclose, or the prosecutor wishes to protect, the Act provides that the court should make appropriate orders.

During the legislative process the parties were involved in protracted negotiations. Some of the prosecution interests opposed the Michael Morton Act because they did not trust defense counsel to act responsibly with the full disclosure of discovery. Responsive to those concerns, the legislature imposed limitations on defense counsel and the dissemination of discovery. Defense counsel may not disseminate discovery outside of the defense team and may not give copies of discovery to defendants. The defendant can view the discovery, properly redacted, but may not be given copies.

There are other reasons for withholding discovery from the defendant as a means of client management. My law firm has a long-held policy of not disclosing discovery to defendants until we have obtained a full and credible debrief. This promotes truthful disclosures to counsel and avoids having clients fabricate stories to fit the discovery. Additionally, when an incarcerated defendant is provided copies of discovery, it frequently finds its way into the facility “grapevine,” and jailhouse snitches suddenly appear to “parrot” back exactly what is in the discovery. It is in the interest of counsel as effective advocates to treat discovery very confidentially and only share with the defendant as needed to provide for his or her defense.

Some defense lawyers have expressed concern about their ethical obligation to turn over files to the defendant after the case is closed. After all it is the client who owns the file. However, the statute gives guidance and protection to defense counsel to withhold discovery. The file may be the property of the defendant, but arguably, all discovery contained therein is held in trust by defense counsel and may not be disclosed without compliance under the statute or protection from the court. This Act prohibits the dissemination of discovery except in some very limited circumstances. There will be litigation in this area as the law matures and cases are decided.

The Texas District and County Attorney Association has started training programs for prosecutors to educate them on their obligations under Brady and the Michael Morton Act. TCDLA has scheduled training to educate defense counsels on their obligations to protect against the dissemination of discovery that would violate the act. This edition of the Voice for the Defense contains several articles from respected defense lawyers that may be used as a starting point for understanding the new obligations of defense counsel.

In this “new world” of criminal discovery in Texas, it is hoped that the parties involved, the prosecutors, defense counsel, and the judges will remember that each is an important part of the judicial process. Each has an obligation to the system and to its integrity. Prosecutors should embrace the new law as a tool to settle cases, where they show the defendant their evidence and challenge the defense to “take their best shot” to attack their case. Defense counsel should accept this new responsibility to protect against the dissemination of discovery. Judges should promulgate appropriate orders reflecting the intention of the legislature. All should embrace this act to seek better justice and to promote transparency in the discovery process.

Some may disagree with me, but I do not see prosecutors as the enemy. I see prosecutors as “worthy adversaries” in the judicial process. I am of a generation of criminal defense lawyers who believe that lawyers should be the zealous opponents inside the courtroom but colleagues outside. Recently, my friend and mentor, Buck Files, charter member of TCDLA and immediate past president of the State Bar of Texas, has advanced The Lawyer’s Creed as a guide for all lawyers. He has challenged Texas lawyers to observe the Creed. At the heart of the Creed is “civility” between prosecutors, defense counsel, and judges.

While The Lawyer’s Creed is aspirational, it can also be a guide for defense counsel, prosecutors, and judges as they navigate this new world of discovery in Texas. In this sense members of the Texas Criminal Defense Lawyers Association can accept the new mantle of responsibility, welcome the new world of transparent discovery, and do justice to the act—which bears the name of a man who has suffered from the worst of abuses.

Bobby Mims