Posted on May 7, 2008 by Walter Reaves

Why not open the files?

it's not too surprising that almost everyone is commenting on the Dallas district attorneys recommendation that prosecutors be held responsible for not disclosing favorable information.  While I certainly agree with Mr. Watkin's idea, I have somewhat different take on the issue.

Those of us who have practiced for a number of years, learned long ago that prosecutors never think anything is exculpatory.  I have even seen prosecutors argue that an identification of someone else is not exculpatory, because the police excluded that person as a suspect.  The obvious problem with putting the burden on the prosecution is that they always believe the defendant is guilty.  If you think someone is guilty, how can you ever believe something is exculpatory?  The standard practice has been to ask the court to review the file, and make an independent determination.  Sometimes that works, but again I have seen information that I believed was exculpatory, but not disclosed.

Civil lawyers are always appalled to learn about the discovery available in a criminal cases.  You can sue someone for a few hundred dollars  and be able to learn everything about them.  However, you can be fighting for your life, and not be told anything about the charges against you.  How can anyone think that is fair?  We can solve a lot of the problems simply by requiring the state to furnish defense lawyers with every thing they have.  There may be privacy issues,  but those can be dealt with.  If you are trying to take away someone's freedom, there is no reason why they should not know everything you know.  Of course, the prosecutors still may not know some things if the investigators don't pass that on.  But it certainly would be better than it is now.

We've been talking about everything else to prevent convicting the innocent.  There is no telling how many convictions could have been avoided, if only the defense had access to everything the prosecution knew.  This is a simple fix, and there is really no good reason why it shouldn't be implemented.  That's probably exactly why we will never see it happen.

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Posted on March 10, 2008 by Walter Reaves

The big breast defense?

Sometimes its hard to come up with a defense a jury will believe. You generally need something more than I "didn't do it". Most good lawyers develop a "theme of the case" early on, and use that them throughout the entire trial. Sometime you have to think outside the box. Just how far "outside the box" is shown by a Japanese lawyer. His client, a Japanese professional model, had been charged with trespass. It was alleged she kicked a hole in the door of her boyfriend's apartment, and entered. Apparently she is fairly well endowed, which was the basis of the defense. Although she was convicted, the Appellate court acquitted her. They found that given the size of her bust, she could not have squeezed through the door. You have to wonder what kind of evidence they presented at trial?

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