President's Message: Discovery and the Legislature - By Bobby Mims

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Saturday, July 20th, 2013

I begin my service as the 43rd President of the Texas Criminal Defense Lawyers Association (“TCDLA”) at the conclusion of 83rd Regular Session of the Texas Legislature. During this session TCDLA lobbyists were able to craft legislation that may result in some of the most significant changes in the practice of criminal defense in Texas in a generation.

At the start of every legislative session, for as long as one can remember, there have been legislative proposals by prosecutors for the defense to be required to provide “reciprocal discovery.” In the past this has been the most divisive issue within the TCDLA and the most insistent demands by the prosecutors. Individually, District Attorney offices have realized that an “open file” policy is good business for the management of their offices. Open file policies promote the settlement of cases and the movement of dockets. As of this writing it is estimated that 90 percent of Texans live in a jurisdiction where the DA has some form of open file policy.

At the start of this legislative session the prosecution forces were, under the guise of agreeing to a statutory open file policy, demanding that the legislature mandate “reciprocal discovery” for the defense. Their proposal would have required a criminal defense attorney to provide the prosecutor with his list of witnesses, their witnesses’ statements, and a notice of defenses in advance of trial. The environment of the multiple exonerations that have occurred in Texas over the last few years, the highly publicized exoneration of Anthony Graves in Washington County, and the more highly publicized Michael Morton case in Williamson County operated to put much political pressure on the legislature to “do something.” Incredibly the “do something” was to demand discovery from defense lawyers. It was the paradoxical position of the prosecutors and a few misguided friends of the criminal defense bar that this would solve the problem of wrongful convictions. They were very close to “selling” this to the legislature.

TCDLA and the Harris County Criminal Defense Lawyers Association (“HCCLA”) joined forces and, along with TCDLA lobbyists, met with legislators and stakeholders to oppose any bill that contained a reciprocal discovery provision. Michael Morton and his lawyers met with the leaders of TCDLA and HCCLA to discuss the reasons why both organizations opposed reciprocal discovery. During these meetings the Morton forces became allies and also opposed reciprocal discovery. Indeed, during the markup of these bills and the negotiations, the prosecutors were faced with an array of opposition to reciprocal discovery that included members of the judiciary.

During the pendency of this legislation the TCDLA Board of Directors passed a strong resolution opposing reciprocal discovery, clearly stating that no one spoke for TCDLA at the legislature other than our lobbyists. This resolution was a strong statement to the legislature and to the public that the 3500 members of the TCDLA stood absolutely against any form of reciprocal discovery. This “froze” the politics in Austin, causing the prosecution interests to relent and agree to support a statutory open file policy. They dropped their demand for reciprocal discovery from the defense. This is an incredibly important development for the practice of criminal defense and for the public in Texas. This issue is resolved for the foreseeable future. The efforts of our lobbyists were very successful, and we owe them a debt of gratitude.

This year the confluence of political forces in the legislature fortunately favored the defense and the righteous position of the TCDLA. This will not likely be the situation in the next session. The challenge for the leadership of this organization over the next two years is to be better prepared for the 84th legislature.

We are underfunded in our legislative efforts. We must find funds to have a continuing presence at the legislature. Our lobbyists dedicate incredible time to this effort, but they have their own practices to which they must attend. We must find additional funds to augment our legislative efforts or we are going to be incapable of meeting the legislative challenges in 2015. The leadership has been meeting to address this situation, and a recommendation will be made to the Board of Directors at the September meeting.

There are many other challenges for TCDLA in the next year, but at least for now the legislature has spoken on discovery and the governor has signed this legislation into law.

I am honored to serve as the 43rd President of the finest organization in the country. We are made up of more than 3500 criminal defense lawyers who daily stand against the power of the government. You can be proud to be a criminal defense attorney and a member of the TCDLA.

Bobby Mims
June 2013