Reciprocal discovery would only harm defendants

Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?

No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.

Sounds pretty damn good, doesn't it?

That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.

Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.

The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.

Taking a stroll down by the stream of consciousness

So here I sit at my wife's computer in her study because I'm tired of going back to the office every night. I'm working on my opening statement for tomorrow morning. After being gone for over 12 hours today, the last thing I wanted to do was drive back to the office after I put my girls to sleep. So I did my research on my phone while sitting at the dinner table after cleaning the dishes.

It's amazing to me that my little smartphone has more computing power than the first Apple IIe my dad bought 26 years ago -- and for a fraction of the price. My phone doubles as my calendar and scanner. I can look up any provision in the Texas Penal Code, the Transportation Code or the Code of Criminal Procedure in an instant. Need some quick legal research? There's always Google Scholar in my bookmarks.

It hurts my brain to think about how attorneys practiced law before computers. I can't imagine having to have type every motion or pleading -- even those you used in most cases (the "throwdowns" as we say). Of course, as Brian Tannebaum and Scott Greenfield are wont to point out -- it's not the technology that makes the lawyer. A good lawyer still has to know what the hell he's doing in the first place. If you don't understand the 4th Amendment then it doesn't matter how many toys you have...

It's all in how you use it. Why did that guy buy a Porsche and then proceed to drive the speed limit down Memorial Drive? If you're going to drive it like that, you should've saved your money and bought a Malibu or a Focus.

At the end of voir dire this afternoon I had a lady in the panel ask me why I kept referring to the prosecutor as the "gummint lawyer." It was all I could do to keep a straight face. I mean, I can't reveal all my secrets, can I? I eventually explained to the lady that it was because she was a lawyer for the government.

I love what I do. The challenge of finding any escape from a hopeless case appeals to me. But it carries a heavy burden. We like to sit down and tell war stories over a few cold ones - the more outrageous, the better. It seems like a game at times. But then you suddenly realize that the client sitting next to you at the defense table is a real person and the consequences of a conviction are very real. It's sobering to look into your client's eyes and see the fear of what might happen.

And no little gadget can make that feeling go away.

Now it's time to get back to work. My client's depending on me.

The playlist for trial prep

It's time for some serious trial prep.  I'm in a jazz mood today so here's what I'm listening to as I put together my trial notebook and materials:



Dave Brubeck



Charlie Hunter



Medeski, Martin & Wood



Weather Report



John Scofield

Enjoy.