September-October 2013

Hot topics at our Legislative Updates

Rob Kepple

TDCAA Executive Director in Austin

By the time you read this column, most of TDCAA’s Legislative Updates will have been completed. I want to say thanks to all of the TDCAA staff who have worked so hard from the first day of the legislative session to the end of summer to get that training done. I still marvel at the turnaround time—the ability of Shannon Edmonds, TDCAA Staff Counsel and Governmental Relations Director, to take everything he has learned during the session and, within two months, provide you with an insightful Legislative Update in a three-hour MCLE program. What’s more, the entire staff works together to get the show on the road to a location near you. Thanks to everyone for making this year’s travelling road show a success.

     No doubt about it, the new discovery law taking effect on January 1, 2014, is the most significant change in a long time because it impacts every case. In concept, of course, Senate Bill 1611 doesn’t seem big: The law mandates pre-trial discovery of offense reports and witness statements, which almost all Texas prosecutors were already providing as part of discovery. So no big deal, right?

    Well, the devil is always in the details, and a number of details will need to be worked out in each jurisdiction. The issues do not revolve around the principle of the new law to provide open discovery. The issues revolve around: 1) the practical aspects of properly documenting the discovery; 2) proper handling of the discovery by the defense team to ensure that victims and witnesses are not subjected to retaliation; and 3) possible sanctions for both the State and the defense for failure to comply with the law.

       At this point in our Legislative Update Texas tour, we are getting a lot of feedback on these issues. We plan to take what we are learning from our members and discuss it in earnest at the Annual Criminal and Civil Law Update in Galveston this September. Our intention is to widely share offices’ solutions later this fall, so stay tuned.

    Today I cannot answer the question about what to do if a defense attorney violates the restrictions concerning the dissemination of the discovery provided. Indeed, there are no provisions in the new law specifically setting out penalties and procedures; you might also note that there are no penalties or procedures set out in the statute if a prosecutor violates its provisions.

    The reason? It is founded in the concept of “the loyal opposition.” Those negotiating the bill entered the legislative arena with a healthy respect for the job of their courtroom opponents and worked from a position of trusting the good intentions of those who are officers of the court. We know that the vast majority of defense attorneys and prosecutors are going to observe the strictures of the discovery law, so focusing on penalties for either the defense or the prosecution was not a priority.

    Naive? No. We all know that there are some who don’t play well with others regardless of the circumstances, so it was wise to focus from the beginning on how this new law will be used by those on both sides of the bar with good intentions.

As a matter of personal privilege

Every now and again during a session, a legislator rises to speak on “a matter of personal privilege.” They are generally given the floor to answer an unfair attack, or on occasion, to scold someone for conduct regarding a measure before the legislature.

    I want to take a moment as a matter of personal privilege to rise to the defense of one of the main actors in the passage of the discovery legislation, Senator Joan Huffman (R-Houston). I describe her as an actor in the passage of the legislation, because Senator Huffman, as a former prosecutor and district judge, supported the concept of open discovery and sought its passage. But before she would sign off on this change, she sought assurances that before the bill left the Senate it had protections against widespread disclosure of victim and witness information. The Senate leadership and the body itself allowed her to take the lead on this, because it is fair to say that no legislator wanted this discovery bill to put victims and witnesses at risk.

    So I was chagrined to see that some media outlets chided Senator Huffman for her work on the bill, as if to imply that she opposed the measure. I am still mystified that anyone would do anything short of recognizing her commitment to justice for taking the time to protect innocent victims and witnesses who are brought into the criminal justice system against their will. Thanks, Senator, for jumping in when it was needed most!

Mandatory Brady training

As part of its focus on discovery and Brady reform, the Legislature passed HB 1847, which mandates that every attorney prosecuting Class B misdemeanors and greater receive one hour of instruction on their duty to disclose exculpatory evidence. This duty kicks in January 1, 2014. Those already in the trade will have a year to comply with this new law. Anyone coming into the profession after that time will have 180 days to complete the course.

    The Court of Criminal Appeals is mandated to write the rules regarding this training and will be working with TDCAA to set up both the training and the mechanism for reporting and recording your participation in the class. So stay tuned as we develop this course for you.

Prosecutor safety

In the wake of the Kaufman County murders, the Legislature moved to help button up some personal information relating to prosecutors and police officers. We live in a pretty information-soaked world these days, but some of your info will be harder to obtain after the Legislature passed HB 1632, which makes confidential the information a prosecutor or prosecutor office personnel submit for the purposes of voter registration. If you’d like more information on this topic in general, please give me a call or contact me by email at [email protected].

Welcome to the newest Texas DA

On September 1, 2013, the newest district attorney’s office sprung into existence: the fighting 452nd Judicial District Attorney’s Office serving Edwards, Kimble, McCulloch, Mason, and Menard Counties. This is the result of a redistricting version of musical chairs necessitated by growth in the Hill Country. Our DAs for the 216th and 198th Judicial Districts, Bruce Curry and Scott Monroe, will continue to share Kerr County as their base of operations, but a third DA will be added to the region. By the time you read this, that appointment should have been made, so keep an eye on the TDCAA website or log into the TDCAA online Membership Directory to see who is at the helm of the new office.

An ethics pop quiz

Every now and then, we come across an interesting issue that serves as good water-cooler talk. Here is one that I want to share, and I would like to hear back from you on it. The hypothetical:

    You are preparing a murder case for trial. You check the court’s file and find that the defendant has subpoenaed two women to court. You interview them and find they are alibi witnesses; they are prepared to testify that the defendant was clear across town with them at the time of the murder. You have a pretty strong case, but you would sure like to poke a hole in this alibi, and you don’t have much time to do it.

    In your investigation, you find that the two witnesses are on Facebook. You quickly create a false Facebook profile and introduce yourself to the witnesses as the mother of the defendant’s child. That seems to chill the witnesses’ desire to participate in the proceeding quite a bit. Indeed, in a follow-up conversation (as the prosecutor, not the false Facebook persona) with one of the witnesses, she says something to the effect of, “I’m not going to lie for that guy.” As you figured, the women turned out to be two sketchy alibi witnesses provided by the defendant.

    So, discuss among yourselves. Let me know what you think of the prosecutor’s conduct here. If you would, email me at [email protected]. I will report the discussion in my next Executive Director’s Report.