Immigration Legislative Update

Given the nature of the session and how papers are typically due well in advance with Wesley Duncan. You will get an email about 80-90 page paper — with every text of every single bill that’s in here. So that way what we can focus on for the purpose of this afternoon are several things. The focus will be on what we are hoping are the laws that will change your daily practice –that those you are going to able to see and obviously would say you know the few of them offhand from the rumors that have been flooded around in the session. But there is also a good number of laws that will not affect your daily practice — but when you come across, one it will fundamentally change your client’s life especially if that person is accused of a sex offence, domestic violence, harassment your kind of tri factor child pornography of things that repeatedly cause grief. And the final category are discussions of bills, laws, amendments that you have to ask for the grown men and women who were elected decided to both file [inaudible] of his son. Have a hearing, have a committee hearing, voted out — have a referendum and passed this has — but it’s still the law — so let’s get there. In the framework, some of the laws are slight modifications in tweaks to out of the law if we talk about those – especially changes of the law but the purpose of the update – rather than just give you a shotgun of statutes dwell deeper and talk about the application. First, understanding these provisions and changes in the code;

Second is predicting how we think TCEAA is going to start training this summer and in the fall as to how to interpret those codes. And then we believe our good ripe challenges that even if we couldn’t win those in the legislature as to why they are unconstitutional, avoid for vagueness. You know — right of hand, what those challenge to make are. And at that point we’ll also discuss why [inaudible] all the different local bar associations are very important especially for discovery. Caveat! Gone to this weekend for Vetos — no indication necessary that these will be vetoed but again everything here at this point is still somewhat subject to change.

First topic, Discovery.

The news stats sheet – and I am going to replicate almost every single word from the new 3914 because it is radically different and the fundamental difference is that it is no longer prosecutor driven. It is no longer up to the discretion of the prosecutor. It is no longer up to the request of the judge to get orders for discovery. It is 100% self-executing. It is upon us. It has been coming upon us to make timely requests. I don’t know what that means and I don’t know whether a request could be denied because it was untimely, because you asked the day before trial. But its wiser to say the subject is soon as one is arrested, It would seem to be proven that you start making a request for discovery and the State then can respond as soon as practical — to produce and implement that discovery. Again when we talk about local criminal defense organizations, it’s because these are things that are going to be worked out or expect them just to be the same way that DA’s organizations have said this is how we are going to do discovery in Austin, in Houston and Fort Worth. The same will happen here, and there will be some discussions as what to both are timely request — how you make that timely request and when they will respond to that request. But if you make that request, here’s what you get — by statute. Copies. Not access but electronic duplication copies, photo copying.

Not hand written copies – Copies — okay? Most of the restrictions have this — some don’t. Witness statements from both traditional witnesses and people that might be considered as law enforcement witnesses and any papers, statements, documents related to that. Ah! The concept is, open file policy means — open file policy it doesn’t just mean accessing and it means being able to replicate the other sides files in the exact same way we use our civil discovery statutes. Again, part of civil discovery is that you can make requests for production and for [inaudible] for any evidence that would lead to the discovery of relevant or admissible evidence. We echo the same thing in our statutes now. That the discovery is a design to not just say what is admissible evidence but what — evidence that is material in any matter. And that’s very broad and it’s supposed to be very broad because impeachment, mitigations those are all things that are relevant to any matter whatsoever can happen in a criminal case and the State can be able to write on electronic duplicate of these things. For the first time we also now although [inaudible] are the law, we now have it by statute under 3914. That does not goes far as with way of light. But what we would have liked is that this also applies to Police, to folks that are record holders and not just the prosecutors — but this a start.

Your tri factor is now in by statute of exculpatory, impeachment or mitigating information. Documents that are in the possession care custody or control of the State that are intended of negate guilt or when you put in the reduce charges that includes impeachment. Finally, what you also get is this perpetual duty to disclose and not just documents but information that’s learned and again this is already the law and under Brady, this is what you are supposed to do. So you probably you don’t need a statute but it’s nice to be able to have something to be able to refer to that the State — before doing or after trial and there’s no time limitation, it doesn’t expires. After trial, that State at time must provide the information to either the defendant or the court, if they later learn that a witness was not truthful that a scientific procedure was not accurate. Anything that possibly is concerning to impeachment exculpatory is within that duty disclosed. Yeah?

So two things to be able to deal with those nasty words that I didn’t know it existed and I didn’t know that it was there. There are things that are already designed to stop this idea of putting your head in the stand to say I didn’t know about it and it doesn’t go as far as it needs to so there is some still some work we are supposed to do. But first is the log. What if incase there is a big fight as to whether or not certain items were produced and the testimony I believe by Mr. Anderson was — I would have done that. Defense said -But you didn’t – yes but I would have. And so, it kind of ends in a stalemate. The idea is now, there is no stalemate. The State shall, electronically record or otherwise any document, item or other information provided to the defendant under this article. It’s like an extra bonus for pre motion to be all included. And the parties have to acknowledge this exchange of information because as the DA can likely say – well you didn’t – you can’t make a claim that I didn’t give it to you. So before there is a plea or trial, this is going to be part of a record. And we also anticipate that this is also attempt to be waived. Just like you going to waive certain rights into the discussion of – do we really need this for a jail call plea — on a criminal mischief? while I am going to have to document on everything else that’s there?

This came up time and time again and so we don’t think it should be waived — we think it’s important to include. And for those reasons there’s both– the discovery log and a privilege log. I mean this is no surprise with [inaudible] do all the time. If the State does not produce a document that is subject to these provisions they have to then be able to list. Look, this is what we have on our file and we are not giving it to you so that later on 5, 10, 2 years down the road, there’s no claim well you know we had it on our file and you didn’t see it or you didn’t look for at it. It should be in that privilege log and now so we have a very clear document of what they know — what was disclosed – what was not disclosed — and why. If something turns up on a privilege log, we also have the right then to have a hearing to conduct whether or not it’s appropriate to withhold that from us because we think under Brady or Giglio– or for any reason whatsoever it should be discoverable and we think it’s the first step in kind of lining up the prevention of a Brady violation to be able to say like look — we didn’t know — it was in our possession. The scope, and well a number of folks have significant influence on the drafting of this bill from Senator Ella’s offices. This provision particularly is from [inaudible] work to realize way too many labs are under private contract and the State is saying we don’t have to give this to you because it doesn’t fall within our [inaudible]. This makes it very clear it does.

If you contract with the State, then at this point you are liable for same discovery provisions. Restrictions, you notice these are color coded — we use red for the things that don’t give us rights but the things we need to [inaudible] by. Same restrictions apply as we already have in statute 264408 says you can’t the copy of child advocacy video out of the repeatedly express concerns that somehow defense flares that we put them on the internet because we had nothing better to do so you can’t reproduce a cack video and you can’t reproduce child pornography. You want those materials go to the office and view them at that point as long as they are made available. But here’s where the real restrictions happen, and here’s where we anticipate some relegations and some fights. So throughout many variations of this bill, the main concern was witness safely. Not really for witness safety sake always but for control that we don’t trust you we don’t trust your clients, we don’t trust your client’s mother. We don’t trust your perfective witnesses. We think that once you give them that information.

Ahh, its going to end up resulting in that witness not appearing. You’ll see that later in Christian’s talk about the family violence witness tempering statutes that were, were enhanced. But we divide the word now in two groups for discovery. Group number one, you can get it and you can share it amongst yourselves. It’s the defense team. Turn in investigator expo and subsequent council, you got immigration council or collateral council — you send it to them as well. Police reports, offense reports — you can all share it amongst yourselves if it is for the purposes of defending the client. Makes total sense. However, this other group of people defendant witnesses or perspective witnesses, do not get copies. Again, similar to most discover policies we already have but you can’t give copies out with the one exception that you can get your own statement. You can get a copy of your own witness statement but otherwise you can view these but you can’t give out copies. But if you do that, the lawyer then, at that point wants to show the client, here are all the witnesses against you. Here are the statements we’ve got. You got to redact it and you got to redact the address, telephone number, driver license number, Social Security Number, Bank number any identifying information at that can be used to harass, harm and intimidate, threaten whatever you actually want to do that witness. Yes?

Francisco Hernandez

Author Francisco Hernandez

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