'Agreed' discovery a bone in DA's race dog fight

Criminal Defense Attorney Jonathan Sibley

Waco – Don't go to jail in Waco. Cross the Brazos somewhere else if you figure you can afford to get locked up.

It's like shooting craps with a set of bones that have no spots, or at least, spots visible only to the house, and none of the other players.

The cops and courts won't even tell your lawyer what evidence and testimony they are prepared to use to prove the case they have on you.

Withholding information costs taxpayers big money. It doubled the cost of housing overflow prisoners from about $3 million a year to $6 million. That will become a big issue in the 2014 Republican Primary race for District Attorney.

In this get tough on crime town, a lawyer isn't allowed to see the list of witnesses or know the specifics of a criminal complaint until after an indictment is returned – if then.

Cases drag out for years.

Some criminal defendants and their attorneys balk not only at plea bargain offers for stiff sentences, but are very reluctant to announce they are ready for trial because a motion for discovery isn't part of the routine of doing business in these parts.

An “Agreed Discovery Order” is the only game in town.

The defense bar hit the issue hard in February, blaming jail overcrowding and skyrocketing costs on the practices of the Criminal District Attorney.

The Sixth Amendment guarantee for compulsory discovery of witnesses and evidence pales under the conditions practiced in McLennan County's criminal district courts.

Item 5 in the standard discovery order agreement offered defendants in the Waco courts stipulates “Copies of police reports concerning the offense alleged in the indictment will be provided to the defendant’s attorney for review. When a copy of the police report is provided to the defense attorney it is to remain in the possession of the defense attorney and is not to be turned over to the defendant or copied and given to the defendant. The police report is intended to remain the property of the McLennan County District Attorney’s Office and is provided to the defense counsel for the convenience of defense counsel only.”

One may read the standard Agreed Discovery Order form used in both district courts by clicking here. (click)

Lawyers get only once chance to review the prosecutors' file – by appointment, at the DA's office – and that chance may not come within 20 days of the first status conference scheduled in the case, as required by the Texas Code of Criminal Procedure. The agreement calls for a deadline of not less than 20 days before the trial. After all, it's an agreement reached by the Court, the Prosecution, the Defense Attorney, and the Defendant.

Funny thing, most defendants don't recall entering into any such agreement. Did they sign the form? Who knows? What would you sign to get out of some hell hole jail for free?

It's hard to remember exactly who to call as a witness in your behalf after sitting in jail for 90 days without prosecution, gaining release on a personal recognizance bond, and waiting more than a year as pre-trial hearing after pre-trial hearing comes and goes and the attorney still hasn't gotten a chance to see the evidence that would be used at trial.

Among attorneys, court coordinators, bondsmen, clerks, law men, jail house snitches and cross bar lawyers, it's agreed. Things have changed since Republican Abel Reyna took over following the landslide year of 2010 when he defeated 20-plus year DA John Segrest.

Compared to a “Defendant's Motion for Discovery and Inspection of Evidence,” the agreed discover order is a pale imitation of what is standard operating procedure in courts throughout the Lone Star State.

To read a typical motion for discovery used in Texas criminal practice, click here. (click)

The issue reached tipping point when a small committee of lawyers confronted District Attorney Abel Reyna in Commissioners' Court, accusing him of practices that cause jail overcrowding, make tax rates rise, and budgets bulge.

Criminal District Attorney Abel Reyna

According to Jonathan Sibley, “This isn’t pointing fingers at anybody or saying anything negative about the process, but at some point in time what everybody has told me is that over the last couple of years they’ve seen — across the board, essentially — plea bargains go up. More people (are) being offered jail time and a longer sentence, which makes the case harder for our clients to accept.”

Robert Callahan told the Court that a minimum of 15 years is the only offer on the table for an accusation of a first degree felony, “regardless of the circumstances.” A conviction calls for not less than 5 years and no more than 99 years.

“The pipe is getting clogged somewhere in between the clients and the defense attorneys and the judge, which means something’s happening with the district attorney’s office,” Callahan said. “Most clients, in my opinion, are willing to plead.”

Mr. Reyna denied there is any truth to Mr. Callahan's allegations. “A lot of them are patently false,” Reyna said. “Either he doesn’t understand the system (or) he doesn’t understand the process, but it’s just false.”

He noted that he inherited a 1,200-case backlog when he took office on January 1, 2011.

Waco attorney Dick Kettler pointed out the obvious. He said the Court should reopen its downtown jail.

Housing overflow inmates in the for-profit Jack Harwell Detention Center inflated from a budgeted $2.6 million item to $5.6 million, and it caused Commissioner Kelly Snell to invite the defense lawyers to present their grievances to the Court.

Commissioner Lester Gibson is on record suggesting the use of more than 300 idle bunks in the disused downtown jail. ““I think the D.A. is doing what he was elected to do. We need to do what we were elected to do, because we have a problem with the jail that’s going to make us or break us.”