Moody Files Open Discovery Bill

State Rep. Joe Moody, D-El Paso, has filed House Bill 1426, which would require both prosecutors and defense lawyers in criminal cases to open their files to their courtroom opponents.

“These are discussions we have to have to start to make a move toward fixing the system in Texas,” said Moody, a former prosecutor.

It’s not the first time the measure has been filed. Requiring reciprocal open discovery was a recommendation in the August 2010 report from the Timothy Cole Advisory Panel on Wrongful Convictions. Then-state Rep. Pete Gallego, D-Alpine, filed a similar bill in 2011, which did not pass.

Efforts to reform discovery laws, though, have picked up steam in the wake of the 2011 exoneration of Michael Morton. He spent nearly 25 years in prison for his wife’s 1986 murder before DNA evidence revealed that he was innocent and led to the arrest of another man who is awaiting trial for the crime. 

Morton’s lawyers allege that the prosecutor who secured Morton’s wrongful conviction deliberately withheld key evidence that could have prevented the injustice and led to the real killer. A court of inquiry is currently considering whether former prosecutor and current Williamson County state district judge Ken Anderson should face criminal charges for his role in Morton’s case. 

Polk County District Attorney Lee Hon said he expected the legislation would have additional momentum at the Capitol this year given the high-profile exoneration.  

“It’s going to be a very timely discussion in view of everything that has gone on in Williamson County and some of the other exoneration cases,” said Hon, who is president of the Texas District and County Attorneys Association. “I think both sides could definitely stand to be a little more transparent.” 

Defense lawyers in the past have had concerns that reciprocal discovery could require them to violate their clients’ right to avoid implicating themselves. But Rebecca Bernhardt, spokeswoman for the Texas Defender Service, which represents death row inmates, said Moody’s HB 1426 and Sen. Rodney Ellis’s SB 91, which is identical, are important steps forward to ensure those accused of crimes can defend themselves. Many other states, she said, require reciprocal discovery.

“The more sharing, the more broad, automatic disclosure that happens in advance enough of the trial for the defense to be able to prepare their case, the more fair criminal trials are going to be,” Bernhardt said.