Criminal justice in Texas could be fairer, faster and less likely to convict innocent people if prosecutors and defense lawyers were required to share more information before trial, a report by two legal advocacy groups says.
Texas law does not require prosecutors to disclose information that is commonly shared in most states, including police reports, witness statements and reports compiled by expert witnesses, says the report, “Improving Discovery in Criminal Cases in Texas,” to be formally released Wednesday.
The result is a hodgepodge of rules varying from county to county, with many district attorney’s offices employing a robust open-file policy for defendants while others restrict information, “meaning access to justice can depend, in part, on where the case is filed,” the report says.
What’s more, Texas is the only state that does not require some sort of mutual discovery before a criminal trial, with defense lawyers opening their files to prosecutors to reveal witness statements, expert opinions and other information that does not incriminate the defendant.
“By disclosing all relevant information, both parties are able to investigate and scrutinize the evidence against the accused. This increases the likelihood that a just result will be reached,” concludes the report, which was compiled by Texas Appleseed, a nonprofit public interest law center, and the Texas Defender Service, a nonprofit that represents death row inmates, by examining the practices of more than 40 Texas counties.
The report, available at texasappleseed.net, comes as the Texas Legislature begins work on several bills related to discovery in criminal cases.
The most sweeping — identical bills filed by Sen. Rodney Ellis, D-Houston, and Rep. Joe Moody, D-El Paso — mirror many of the report’s calls for reform, including mutual discovery and expanded access to prosecution files.
Similar efforts have failed in previous sessions, but supporters believe recent high-profile exonerations have created an impetus for reform — particularly the case of Michael Morton, who was freed in 2011 after serving almost 25 years in prison for a Williamson County murder he did not commit.
Some defense lawyers adamantly oppose sharing information with prosecutors, while others support a system “that is working in the rest of the states,” said Rebecca Bernhardt with the Texas Defender Service.
“Our discovery law has been out of date for a long time,” she said, adding that the main focus of the report — and reform legislation — is on broadening disclosure by prosecutors.
“Our hope is to structure a bill that makes it clear that police need share information with prosecutors, that prosecutors need to share as much of it as possible with defendants … and hopefully that will prevent future Mike Mortons,” Bernhardt said.
Prosecutors have warmed to the idea of expanded pretrial disclosure, particularly if discovery rules can be crafted to protect witnesses and victims from retaliation or harassment, said Shannon Edmonds, staff attorney for the Texas District and County Attorneys Association.
“This is just a system that basically every other state uses,” Edmonds said. “Texas is an outlier, and it may be time for the Legislature to re-evaluate that status.”