CCA- Prosecutors can “forget” to follow Discovery Orders in Texas

Remember last week’s post about a DWI case where the State violated a discovery order and hid evidence from the defense and violated a discovery order that required them to turn over evidence in a timely manner? If you don’t, here’s my post about it. Long story short, the Dallas Court of Appeals said it’s ok if the State ignores a court order when it comes to discovery and doesn’t turn over evidence to the defense on time.

Not to be outdone, our state’s highest criminal court, the Court of Criminal Appeals, ruled on the same issue recently in a different case, and guess what? They came to the same conclusion, if a prosecutor hides evidence or “forgets” to turn over evidence and violates a court’s discovery order, that’s fine.

The purpose of our criminal appellate system in Texas is to uphold a conviction at all costs. It’s the reason that our appellate courts bend over backward to say a defendant “waived” all objections on appeal, while at the same time our appellate court allow (if not outright encourage) the State to ignore discovery orders, because the system wants the conviction above all.  The asymmetry of accountability between the State and Defendant is mind boggling.

So what case are we talking about today?

That would be Tracy Francis vs. State, a case out of Houston.

So what happened?

Francis was charged with assault with a deadly weapon, a knife. Three months before trial, the court ordered the State to allow the defense to inspect any weapons that were going to be offered into evidence at trial. Guess what? After the trial started the defense lawyer notices a giant machete on the State’s table. A machete isn’t a knife, and despite the court order the State never informed the defense about the machete, or provided an opportunity to inspect it. So the defense objects to allowing the knife at trial because of the unfair surprise to his client and because it’s a clear violation of the court’s order.

What was the State’s excuse? That they forgot about the machete.
From the opinion-

[PROSECUTOR]: I brought the machete as evidence. And when I was
showing the defense counsel all of the evidence that I was intending to offer
in this trial, that’s when he mentioned that he hadn’t seen the machete. I did
receive the machete from Ms. Thomas when I went to interview her in
preparation for trial. That is the first time I knew about it.
THE COURT: When was that?
[PROSECUTOR]: That was in — I don’t remember.
THE WITNESS: Last month.
[PROSECUTOR]: Yeah. It was before the last trial setting, I believe.
So far in advance. It’s been in my possession since that time. I honestly didn’t
know that the defense didn’t know about the machete. I thought that it was in
the offense report, but it wasn’t.

This is important, because unlike defendants who can be charged with reckless or negligent conduct, or can be thrown in jail and charge with a new crime for “forgetting” about a court date; prosecutors are allowed to forget to follow court orders, because forgetting isn’t considered bad faith. And for a defendant to get anywhere with a complaint about a prosecutor on appeal, you usually have to prove bad faith, which you can’t, unless the prosecutor is willing to confess to misconduct in court, which never happens.

It’s like Batson challenges, for example when the State strikes all the black jurors from your jury panel, and then the prosecutor has to give a race neutral reason, so the prosecutor will say “That juror didn’t make eye contact with me”, or “That juror smiled at the defense lawyer’s joke in voir dire”. It’s might just be BS to cover up what just happened, which is the State struck all the black jurors. But BS can be good enough in Texas. You have to be the world’s dumbest prosecutor to be held accountable for violating discovery orders because you have to tell the judge that “yes I hid the evidence to prejudice the defense”, if you can think of any other answer, you can get away with it.

So let’s assume this prosecutor did forget about the evidence. I have no reason to believe otherwise and it’s possible. We have a drug war going on which means DA’s offices across the State are flooded with meaningless drug cases, so prosecutors have less time to work on real cases, like assaults with a knife.

But, on the other hand, what if a prosecutor keeps up with the cases out of the court of appeals, and knows that by just claiming to “forget” to comply with a court order means they can get away with it, because our appellate courts with never hold them accountable?  If they think it will help them win, and they can’t get caught, what’s stopping them from ignoring discovery orders?

I can tell you what isn’t stopping them, and that is the current case law on violating prosecutors violating discovery orders. Here’s the law (from the opinion)-

“[E]vidence willfully withheld from disclosure under a discovery order should be
excluded from evidence[.]” Because exclusion of evidence in this context is in the nature
of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should
exclude evidence on this basis has been made to hinge on “whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.]” Extreme negligence or even recklessness on the prosecutor’s part in failing to comply with a discovery order will not,standing alone, justify the sanction of excluding relevant evidence.

If you read the first sentence of the law on discovery violations you might actual think we are going to hold the State accountable, but by the last sentence you remember this is Texas. We have given license to prosecutors to be reckless and extremely negligent when it comes to turning over evidence and complying with court orders, which highlights our state’s, and the State’s, indifference to fair trials or preventing wrongful convictions.

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