WHY EVERY TEXAN WHO LOVES LIBERTY MUST FIGHT THE ABOMINATION CALLED “RECIPROCAL DISCOVERY”

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Friends-  I dont remember the year. Maybe it was 2005.  Anyway, the Legislature was considering a  bill regarding reciprocal discovery. The Bill called for the following exchange:

 -Da’s would provide copies of police reports (offense reports) to the Defense.

– The Defense would identify all Defense Witnesses prior to trial and the Defense would identify the Defense Theory prior to trial. ( Kinda like Patton be required to tell Rommel his battle plans).

 Back then the Defense  Bar had some animated discussions about reciprocal  discovery. Things got a little heated.  I referred to the State reciprocal discovery bill as ” A Piece of Shit”. I called it that because that was the nicest thing I could  think to call it. Fortunately, back then the so called reciprocal discovery bill failed to get off the ground and it went away for a while…

Well it’s Back.  Now we are presented with the “New and Improved” Reciprocal  Discovery Bill, aka  House Bill  1426.   This Bill is worse than what was  submitted  8 years ago. Every Texan who cares about Liberty needs to be concerned about this evil piece of work.

Reciprocal discovery is basically the notion of  two equally situated parties in a law suit trading information. It makes sense where people are suing each other for money. It does not make sense in criminal law. In criminal law there are not two equally situated parties. Nope. In criminal law there is the Almighty State versus Joe Citizen.  There is no equality in power.  Notwithstanding the fact the State has every possible edge, every two years some genius in Austin will try to give the State just a little more help. The State does not need the help. The citizens need the help. The citizens need to be protected from the overreaching all powerful state.  HB. 1426 is just one more example of some  politicos  try to out-bootlick each other in the race to garner support of the  law and order fanatics. Neither these politicos or their fanatic pals have any regard for Liberty or the rights of the Good Citizens of Texas. 

HB 1426  is a bad bill and Reciprocal Discovery in the Texas “criminal” justice system  needs to be killed once and for all.  

Under HB  1426, What does the Defense Get? Nothing. We get what we are already entitled to under law. We get exculpatory evidence under this Bill.  Thanks for nothing.  Since  the Supreme Court decided Brady v. Maryland  in 1963, prosecutors are required by law to give us exculpatory evidence. Sure, there are prosecutors like Anderson  in Willaimson County  and Sebesta in Burleson County who ignored their duty under Brady, but its still the law.  This bill gives accused citizens what they are already legally entitled to .  They might as well say, ” hey were going to give yall chins”. Thanks, but We already got chins. We got noses too and we can smell BS and this bill is BS.

But wait, there is more. Under HB 1426 the defense gets any deals that the State cuts with any snitches.  Again, thanks for nothing. Since the Supreme Court decided Giglio v. United States in 1972, the state has been required to give us evidence of any deals they cut with their snitches or rats.  

Under HB 1426  the defense  would get copies of Offense Reports.  In May, I will have practiced law for  30 years.  For all  30 years, Harris County and other major metropolitan counties have had open files. Folks That means  that, we have always gotten to read the Offense Reports. In the last 4 years we have been recieving written copies. So again, thanks for nothing HB 1426. 

It is duly noted that in some small Texas counties there are DA’s who like to play, “Trial by Ambush”. They refuse to show offense reports to defense counsel because these DAs  have no concept of due process.  The State Bar of Texas  needs to have a serious sit down with these “Ambushers of Justice” about their sworn duty to do justice. Hiding information, Hiding Offense Reports is not doing justice. Further,  the patently offensive conduct of these few DA’s, should not be any impetus for a reciprocal discovery bill.  To pass a bill that forces these DAs to do what they should already do, at the expense of the accused, is exactly the worst thing to do.  It amounts to rewarding the bad behavior of a few by punishing the many.  This is not a sound basis for any law, yet it is the basis for this abomination called HB 1426.

Under HB 1426, What Does the already all powerful State Get?  Everything. They get everything.  As Quint said, they get ” The head, the tail, the whole damn thing.” This bill reads like Ken Anderson’s wish list  on how to screw defendants.  Did the “always even-handed thing known as Nancy Grace have a hand in this?  Or were some Nazi zombie lawyers enlisted to help  draft this unholy work?

Under HB 1426, the State gets the names of EVERY  witness the Defense intends to call prior to trial , in EVERY  single trial.  Now that may not sound problematic, but it creates an awful scenario and would give rise to endless pre-trial  State abuse of Defense Witnesses.

Having to identify Defense witnesses prior to any trial would  have a dangerous impact on the ability to Defend the good citizens of Texas. Anyone who has ever tried any case of significance knows that the last thing you want is DA investigators out bullying your witnesses prior to trial. If the Defense has to identify our witnesses prior to trial, Cops and/or DA investigators will be out in force attempting to bully these witnesses into either not coming to court or telling a story the prosecution likes.  This is not my imagination. This is quite real. I will give you an example,

 Several years ago,  Stan Schneider and I defended a Pasadena School Bus driver who had accidently hit a  child. The child died as a result of the accident. The case was in the news quite a  bit. The always lovely  prosecutor Warren Diepram, charged our client with Murder. Stan & I went to trial. The Offense report  had a list of all the high school  students who were on the bus. The students were all potential fact witnesses. I  went to each of their houses and in the presence of their parent or grandparent, I interviewed each student with my investigator. I made repeated trips to their houses, always with parents or grandparents present,  and I asked more questions, answered their questions and built up trust.  Not all of these students wanted to talk to the DAs office. One student witness, I think had a family member who had a bad encounter with some thuggish cops. This student witness made it clear he didnt want to talk to the DA.  This high  student was  interviewed by me with his grandmother’s permission and  with her  present. Afterwards,  he was one of many witnesses we issued a  subpoenae to appear in court.

 We picked the jury and  there was a  break.  The next day I got a call from the grandmother of the student witness. The grandmother advised that immediatly after she went to work, ( like someone was waiting for her to leave),  her grandson the high school student witness heard a loud knock on the door. He was maybe 17.  It was very early , around 630 or 7 AM. The student witness answered the door and he was greeted by Assistant District Attorney Warren Diepram & one or two armed DA investigators. They wanted to come in and have a  friendly little chat. The kid was scared. Who can blame him?  He let them in and then talked to Diepram and his goon(s). He did not want to talk to them. But he was intimidated so he talked.

 After I learned of this incident, I brought it to the attention of Judge Carter. Diepram responded that they had gone out to the witnesses house to serve him with a subpoena and did not mean to intimidate him. I pointed out, that if Diepram was concerned about a subpoena, all he had to do was look in the  Court File  where the Defense Subpoena  Return for that witness and others was on file. The apparent intent of the visit was not to issue a subpoena, but rather for the  goon(s) to intimidate this student  witness who was  favorable to the defense. I calmed the witness and grandmother and ultimately the student  testified.

 Stan and I won that case, notwithstanding the State’s best efforts to bully the hell  out of at least one student witness. In that case, the State knew who the witnesses were because their names were in the Offense Report.  Forcing the Defense to identify favorable witnesses prior to trial, subjects those witnesses to all kinds of potential intimidation by police, DA investigators,  unscrupulous  prosecutors as well as family and friends of any alleged complainant.  Witnesses are always reluctant to come to court.  They are all afraid of the State and the police doing something to them for standing up for the accused. We cannot afford to give the State any more power to bully and  intimidate the few witnesses that have the courage to come and testify for the accused citizen.  Under HB 1426, if the Defense doesnt identify all  potential defense witnesses before trial, the prosecutor can ask  the judge to exclude them. So, if this stinking bill passes, the Citizen Accused will either have to tell the State he is calling Grandma and subject her  to police hounding or the Citizen Accused can keep Grandma’s name off the list and instead risk having her  excluded as a Defense Witness.  Under this horror of a Bill, the Citizen Accused is check-mated either way. 

Under HB 1426, the Defense would also have to turn over to the Prosecution any physical evidence or  documents the Defense intends to offer at trial. The Bill also would require the Defense to identify the theory of defense.  In other words if the Accused told his lawyer that he acted in self defense, the Defense would have to tell the prosecutor, ” My guys says he acted in self-defense” prior to to trial.  Why stop there?  If we are going to give the prosecutor everything, why not require that Defense Counsel  to have the prosecutor present every time Defense Counsel interviews the citizen accused- You Know to keep things balanced or reciprocal. 

Please Fight this Bill. Unless you want the ” criminal” justice system to get more criminal and less just, you need to fight it. There are 150 State Reps in Texas, 31 State Senators and one  Governor who cannot remember 3 things.  Please pick up the phone and call your your State Rep, or State Senator.  If you dont want to call them then email them. Tell them that your a Good Citizen and you didnt send them  to Austin to turn Texas into a  police state. You sent them to Austin to protect our rights, not rob us of them.

 Robb Fickman, Houston
 

Robert J. Fickman

 

Attorney at Law

 

AV Rated Preeminent, Martindale-Hubbell

 

 

 

440 Louisiana, Suite 800
Houston, Texas 77002

 

 

 

 

 

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