Williamson County Discovery

In response to this post, in which I talked about Williamson County, Texas’s criminal discovery policy, WilCo DA John Bradley emailed me:

In Williamson County, a defense lawyer receives full and complete discovery, including access to offense reports, before any trial. Mr. Hampton’s commentary is not accurate. Our discovery is more limited if there is a negotiated agreement, but even then discovery of critical information is provided. jb

It’s good to have more accurate information, but this raises as many questions as it answers.

What is this “critical information” that is provided before the accused has to decide whether to accept a plea agreement?

Who decides?

And, most importantly, how does a Williamson County criminal-defense lawyer help her client make a proper decision on whether to accept a negotiated agreement (a plea bargain) or go to trial, without access to full and complete discovery?

This is, as I’ve said before, where a criminal-defense lawyer earns her keep: in helping the client make the proper go/no-go decision. Trials are important, but most cases are not tried. The trick is to know the case that should be tried from the case that shouldn’t be.

By the time my clients decide whether or not to plead guilty, I almost always have enough of an understanding of the case that I could try it well if I had to. I have read offense reports, interviewed witnesses, investigated criminal histories, visited the scene and consulted with experts. (I have also drafted a jury charge and researched any legal issues that I anticipate arising.) Just as having defense trial experience is critical to a criminal
defense lawyer making that determination, so is having a full
understanding of the evidence and the law.

I don’t know how, if I were only provided what the prosecutor considered “critical information” before helping my client make the key decision, I would be able to advise him on what could happen at trial or how he should respond to it.

Somebody must benefit from the state restricting the amount of information defense counsel can have before plea negotiations break down. I don’t know who benefits, but it doesn’t smell like justice to me.

0 responses to “Williamson County Discovery”

  1. Part of the ‘negotiation’ is finding out what the evidence is against you…

    Kafka comes to mind… Or North Korea…

  2. I fully agree. Here in Canada, the defendant’s right to full disclosure is constitutionally protected (R. v. Strinchcombe [1995] 1 S.C.R. 754), but there is still plenty of room for subjective interpretation. For example, the police are required to hand over an investigating officer’s disciplinary records to the prosecutor if they are “relevant” (R. v. McNeil, 2009 SCC 3).

    Maybe I watch too much TV, but since when do we trust the police to make these calls?

  3. The words “before trial” are certainly open to interpretation. Are we talking 6 months before trial, a month, 30 seconds before the witness testifies?

    And, what is meant by “receives full and complete discovery?” Copies of everything, or does having access mean that the assistant D.A. reads the file to you?

  4. While we’re interpreting Mr. Bradley’s email, this phrase raised my eyebrow:

    “including access to offense reports”

    What does “access” mean? A photocopy? Or (more likely) getting to sit in a room to make notes longhand while a county employee monitors you? And when do you get this access? Sixty days before trial? Or 7?

    Also, Mr. Bradley’s statement that there is more limited discovery in cases involving plea agreements suggests that the practice in Wilco is to enter into the agreements without having fully discovered the state’s case. It doesn’t seem prudent for the defense bar to practice that way, and it doesn’t seem fair for the DA’s office to conduct discovery that way either.

  5. Oh, God. Please forgive the brazen dangling modifier in my previous post. A second degree grammar felony, at least.

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