Dogs that didn't bark: Open prosecutor files, reduced drug penalties

In the Texas House Criminal Jurisprudence Committee on Tuesday night, the spirit of the room was rather odd when Rep. Joe Moody presented his committee substitute on criminal discovery reform. No longer a reciprocal discovery bill, Moody laid out legislation featuring a one-sided requirement for the state to hand over evidence with no concomitant defense obligation. I'd heard rumor Sen. Ellis might do that on the senate side, but hadn't expected the change in Moody's version. (Happy day for the defense bar, but I hope it doesn't kill the bill. Becky Bernhardt has been working hard.) There was little testimony by anyone but some usual suspects (someone from the El Paso DA testified for it) and everyone's tone and posture was a bit like someone walking on eggshells. It felt like we were all sneaking something past our parents. Surely some prosecutors don't like the statutory give without any get but there wasn't remotely the sort of weeping and gnashing of teeth we heard later in the hearing over extending the Fourth Amendment to cell phone location. Can a one-sided discovery bill get through the Legislature? The reason it hasn't worked in the past is that prosecutors vowed to kill discovery legislation if it weren't "reciprocal." So they'd have to stand aside, as they did in the House on Tuesday night, or just lose their mojo for the bill to pass. I don't think the latter has happened quite yet so one suspects all they have to say on the subject, for now, is being said behind the scenes. How much of a game changer were the Michael Morton and Anthony Graves cases regarding prosecutorial misconduct? Have those episodes sufficiently altered the terms of debate on open files that a one-sided requirement can pass? Over the next month or two, we're about to find out.

Another notable dog that didn't bark in the House Criminal Jurisprudence meeting Tuesday night: Rep. Senfronia Thompson brought a pair of bills, previewed here, to reduce penalties for low-level drug possession from a state jail felony to a Class A misdemeanor and to disallow state jail felony charges for possessing trace amounts weighing less than 2 one-hundredths of a gram. One might have expected a protracted battle over these bills just a few sessions ago, but on Tuesday there was no significant opposition. Indeed, Rep. Lon Burnam asked Thompson if she'd like to send the bill to the local and consent calendar since it seemed to face no opposition, a wry suggestion since she chairs the Local and Consent committee. She replied smoothly that she thought the general calendar would be appropriate. Don't get me wrong: I was grateful. Waiting on a later bill, the last thing I wanted was for someone to launch a lengthy debate over the merits of the drug war. But I was pleasantly surprised to find the committee considered the idea relatively noncontroversial. The main concern from the dais appeared to be potential costs to county jails as opposed to "sending the wrong message," etc.. Surprisingly, given how many jobs it creates, the drug war found no champions on Tuesday.- at least none willing to stay into the evening when the bills were finally heard.