One reason we needed the Michael Morton Act (which improved on our State’s horrible discovery rules in criminal cases) is that the State was hiding evidence which convicted innocent people. One problem with the Michael Morton Act, and the prior discovery rules is that there is no penalty if the State fails to turn over evidence, and then chooses to surprise the defense at trial with secret evidence. Let’s contrast this situation to the standard that we hold defendants, in which they are penalized at every stage of a proceeding for the slightest error. Defendant has work and misses a court date? Warrant! Defendant objects to the wrong subarticle of the Code of Criminal Procedure, that issue is waived on appeal! They created a new board certification for criminal appeals in Texas. But you don’t have to be an appellate genius to guess the outcome of any criminal appeal. 95% of the time whatever violations of the evidence rules, code of criminal procedure, or Constitution will be overlooked if the court of appeals can uphold a conviction. That’s the purpose of appellate courts in Texas, to uphold criminal convictions, and to reverse judgments for damages against Defendants in civil cases.
This leads me to our case of the day- Laura Sanders vs State of Texas
It’s a DWI blood case, Defendant was convicted and sentenced to probation.
So why was it appealed?
Get this. The trial was in April of 2012. In October of 2011 the Defense filed some discovery motions, which the court granted, that required the State to turn over evidence regarding the blood test within 10 days of the order, and a list of expert witnesses who would testify at least 20 days before trial.
So what does the state do, it files the Defendant’s medical records a month before trial with the clerk (just a few months too late). And then, during the trial, the State hands the Defense Lawyer a notice of the expert witness that is about to testify. So much for 20 days notice.
Fun Medical Fact- You know that HIPAA law that makes it so difficult to get your records from your Doctor? It doesn’t apply to DWI prosecutions. The State and our appellate court laugh at your medical privacy. Fun Medical Fact 2- DPS keeps a database of all the prescriptions you take. They can search it anytime without a warrant.
Back to the story. The Defense objects because clearly the State violated the discovery order and the records are over 112 pages long and they have had no time to learn about the expert who is going testify.
So we have two clear violations of a court order. What punishment awaits the State?
Nothing. The judge rules that all the evidence is coming in anyway, and that the Defendant can have a week continuance if they want. The defense lawyer chooses to proceed because a week isn’t long enough for him to work up these records anyway and the Defendant is convicted. The Defendant appeals this discovery violation.
What’s the law on discovery violations at trial? Basically it encourages the State to cheat because the Defense can only ask for more time to prepare. From the opinion-
The proper procedure when alleging surprise due to violation of the trial court’s orders for discovery is to request a continuance. Duff-Smith v. State, 685 S.W.2d 26, 33 (Tex. Crim. App. 1985); Tamez v. State, 205 S.W.3d 32, 40 (Tex. App.—Tyler 2006, no pet.). If a witness’s name is not furnished to a defendant before trial despite a court order, any error in allowing that witness to testify over a claim of lack of notice is waived by the failure to move for a continuance. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994); see Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) (failure to seek continuance waives error urged on basis of surprise).
Which begs the question, why would the State ever comply with a discovery order? At worst, they get a break in the middle of the trial, at best they can spring secret evidence on the Defense at trial and hope for a conviction if the Defendant won’t ask for a continuance.
Why wouldn’t a lawyer always seek a continuance? One reason is that maybe the Defendant has already taken off so much work for the case that they can’t come back in a week. Wasting a Defendant’s time is one of the ways we get people to plea, but trials are a huge cost to a Defendant when you count how much work they miss. Also, one week isn’t enough time to interview everyone in 112 pages of medical records and hire an expert. You can’t do it.
Holding- The Conviction Is Saved! Prosecutors may continue to hide evidence and ignore court orders.