I was recently in court with a young woman (still in high school) who was charged with a felony as an adult. She got offered deferred adjudication, which would normally be a good result. However, she makes good grades in school, plans to go to college, and wants to be a nurse one day. She's hesitant to accept deferred adjudication because she's concerned that it might stand in the way of her becoming a nurse. I can't blame her. Several times a year, we represent nurses or nursing students who get deferred adjudication, and a supervised deferred can potentially be a big problem.
Even if you complete a supervised deferred adjudication successfully and the case is dismissed, you are still not eligible to have the arrest expunged from your record. In addition, although you can get an order of nondisclosure in order to partially seal the record, the record of the deferred is still permanently available to any government agency, including a state licensing board, such as the one that screens nursing applicants. Unfortunately for those wanting to become nurses, a deferred adjudication, even if completed, may be grounds for denial of a nursing license. Section 301.452 of the Texas Nurse Practice Act provides that a nursing license can be revoked or denied to anyone receiving deferred adjudication for either a felony, or a misdemeanor "crime or moral turpitude."
Broadly speaking, a "crime of moral turpitude" is any crime involving an element of deception or violence, such as theft, assault, or false report to a peace officer. If you get deferred for a felony or a misdemeanor crime of moral turpitude, you are not automatically barred from getting a nursing license. But at that point, it is completely within the discretion of the board whether or not you get to become a nurse, no matter how qualified you otherwise may be. As I have blogged here before, people without criminal records are often too quick to jump at deferred adjudication because they want to get their cases over with and they mistakenly view deferred as a magic bullet. It's not. It's a great option for some, but not everyone. Like the young woman I represent who aspires to be nurse, you should definitely think long and hard about what you want to do with the rest of your life before you sign up for deferred.
Over the past few weeks, a couple of fellow Seguin criminal defense lawyers have approached me to complain about the new discovery policies in the Guadalupe County District Attorney's Office. This brings up the whole subject of how a criminal defense lawyer goes about finding out what the State's evidence really is. In Texas, it's not as straightforward as you might think. Although the Texas Code of Criminal Procedure allows courts to order that prosecutors make discovery available to criminal defendants, for the most part, it's not mandatory.
Instead, in Texas, we technically have a discovery system that some have referred to as "trial by ambush," since neither side is required to disclose it's case to the other prior to trial. Back in the Jurassic Period, when I was a prosecutor, it was not unusual for me to see half a dozen defense witnesses being sworn in to testify at the beginning of a trial and for me not to have ever heard of any of them, since they were never mentioned in any police report or witness statement. While legally, pretrial discovery for defendants in Texas is virtually nonexistent, in practice, discovery gets done. Instead of having a universal system of mandated discovery, what has developed is a system where every prosecutor's office decides how many of its cards it will place on the table, and why and when it will do so.
There's an advantage to prosecutors for providing discovery. When the State's case is made known to the defendant, the defendant will either be more likely to negotiate, or at the very least, point out the flaws in the prosecution. In this way, cases can get resolved without necessitating a trial. In addition, the prosecutor in the case protects himself from later charges that he hid evidence that was potentially exculpatory to the defendant -- a big legal no-no. Nevertheless, you find a wide range of policies in different prosecutor's offices. The Comal County District Attorney's Office, for instance, has a fairly broad discovery policy, and discovery is relatively easy to obtain. Usually, we just need to put in an informal written request of what we would like turned over to us in a case, and it usually is. In Guadalupe County, on the other, the District Attorney is attempting to do a limited version of what is known as reciprocal discovery.
It other words, the District Attorney will agree to turn over some items of evidence, as long as you are willing to provide it with notice that you intend to introduce certain types of evidence at trial in return. Mainly, the District Attorney's policy requires defense counsel to give notice of who his witnesses for trial would be to the D.A. sometime during the week prior to the trial starting. Many defense lawyers are leery of participating in reciprocal discovery because they feel that it will hamstring them at trial, by limiting their ability to switch defenses in midstream or to call witnesses at the last minute. However, although there may be some cases where it is in defense counsel's interest to keep the State totally in the dark, I find that those cases are the exception, not the rule.
If I find myself needed to change my client's defense every five minutes or not wanting the State to know ahead of time who my witnesses are, I probably don't have a very good case to take to trial anyway. On the other hand, giving the D.A. notice of witnesses prior to trial is a heads up to them that we intend to mount a vigorous defense, and that they might want to rethink the case. In most cases, it is a price worth paying in order to get a peek at the State's file prior to trial.