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There is a giant hole in Gary Scales’ life: “Missed Thanksgiving, Christmas, my wife’s birthday, my anniversary.”

“Basically it was like I was dead for six months,” he said.

Six months of his freedom was stripped away.

So where was he? In the Harris County Jail, arrested for allegedly being involved in a drug deal.

He says it began on “just another normal day” of work.

But once he got to air conditioning design firm, he says, “the car comes whipping around the corner, and basically the guy jumps out with the gun drawn pointed at me and said, ‘on the hood of your truck now.’”

It was the police with a claim Scales couldn’t believe he was hearing.

“They told me I had dealt or passed along 15 kilos of cocaine to another gentleman and that they saw the transaction go down,” he said.

But there were big problems with their claim.

“What the police had alleged was impossible,” Scales’ attorney Stacey Bond said. “There was absolutely every kind of evidence that you would want that would demonstrate that the police had made a mistake.”

For example, she points to evidence such as her client being at lunch with three colleagues around the time the dope deal went down.

But Bond said even worse was evidence that pointed to Scales’ innocence was known by the prosecution that she said was never disclosed to her.

Take the man police said was on the other side of the drug deal. Scales said she would eventually discover, “that man said he didn’t know who Gary Scales was and couldn’t identify him.”

But Bond said the Harris County prosecutor never told her about it.

“That information should have been communicated to me as quickly as possible,” Bond said.

In the meantime, Gary Scales had been sitting in jail, unable to make a high bail amount, for three months.

And Bond said because the prosecutor didn’t disclose the other defendant’s statement, Scales “sat in jail for another three months.” Then Harris County dropped the case, still with no mention about the “exculpatory information” in Scales’ favor.

Most of the public now knows it’s not supposed to work this way.

A prosecutor is supposed to share evidence the courts may have discovered that points to a defendant’s innocence. It’s called “exculpatory evidence.”

But it turns out there’s a problem: Only the prosecutors get decide what they think is really exculpatory or useful evidence for a defendant. If they don’t think it points toward exoneration, the defense may never see it.

That’s why as a check on prosecutors, many states allow the defense to independently look at the prosecution’s case file through a process called “pretrial discovery.”

But in Texas, 11 News has found that that discovery can be severely limited and even nonexistent in some counties because of the way DAs interpret a state law.

And worried experts say it definitely results in innocent people going to prison.

“The state has all the cards and they’re holding all the cards,” said Phillip Wischkaemper, head of the Texas Criminal Defense Lawyers Association. “The district attorney is the arbiter of what is favorable [evidence]. If he doesn’t think it’s favorable, then you don’t get it.”

What about Texas defense attorneys being able to look at the prosecutor’s file and evidence themselves?

“In some cases, you’re limited from seeing anything,” Wischkaemper said. “Have lawyers tell me they see nothing.” “It’s ludicrous” says prominent Houston defense attorney Katherine Scardino said. So how does she know?

She said it happened to her.

“It was vile, it was unfair, unjust,” she said.

The case was the Harris County capital murder trial of her client, Joe Durett. He was charged with killing his estranged wife and her sister. It was a high-profile case with high emotions.

Durrett was even shot and injured by a mysterious assailant before the trial.

And when Scardino went to the Harris County prosecutor to look at their file she said she was told, “the file was closed, you cannot open it, you cannot look at it.”

That even included a basic document like the police offense report in the case, more than an inch‑thick of information.

“I never saw [it] from the district attorney’s office,” she said.

Scardino said it was a terrible blow to her defense.

And who was the prosecutor on the Durrett case?

It was Chuck Rosenthal, now the Harris County district attorney.

So we asked him about Scardino’s claim.

“I don’t recall that and if we did that it was for a reason,” Rosenthal said.

Scardino also said Rosenthal stopped her from receiving crucial DNA testing reports until the trial was actually in motion.

Rosenthal again said, “I don’t recall that, I don’t think it happened.”

But defense attorney Scardino is emphatic.

“Chuck Rosenthal would not release anything voluntarily to the defense,” Scardino said.

11 News: “Your client at this point is fighting for his life, and he can’t get the results of a lab report that may exonerate him?”

Scardino: “That’s where we were.”

The defense attorney added, “we don’t do that here, this is the United States of America, we don’t do things like that here.”

But the fact is in Texas, state law says that a district attorney doesn’t have to share its file with vital information, such as police offense reports and witness statements, until the author of that document is actually on the stand in an underway trial.

In addition, some Texas criminal courts are interpreting that law so that even complex police DNA lab reports are withheld from the defense until the lab technician who wrote them is on the stand.

In short: In some Texas cases, defense attorneys and any experts they may have hired are not getting to see these intricate reports until the case judge calls what is often a 20 minute recess.

Concerned justice experts say all of the above is courting trouble.

“Trial by ambush is how you would characterize this” said Andrea Keillen of the non-profit Texas Defenders Service. “It cripples your ability to put on a defense. It’s off-the-charts unfair.”

Keillen said it seems to be driven by a “win-at-all-costs” mentality by some prosecutors.

Hence, she said defendants often “have no access to the information they’re going to use to try to convict you.”

But not all counties apply the Texas pre-trial discovery law the same way. For example Williamson and Ellis counties reportedly follow the statute strictly and have a tough closed file policy. There, the defense often sees nothing until trial.

But counties like Tarrant have an open file policy and provide e-mail copies of police and other reports.

But then there are counties like Harris, where as we’ve seen files are sometimes closed but can also sometimes be open. But defense attorneys say there’s a catch.

“Instead of sticking a report in a Xerox machine that would take 30 seconds to copy,” Keillen said Harris and other counties force defense attorneys to spend hours and even days copying any reports “by hand.” Many defense attorneys said they aren’t allowed to take word‑for‑word notes.

“It’s a sham,” said Keillen of DA offices that enforce these rules. “It’s just a game that they’re playing.”

So we asked Harris County DA Chuck Rosenthal why not just copy documents and give them to defense attorneys the way some counties do.

“Because they’re not entitled to it,” he said.

But Keillen said all of the above problems and practices adds up to a state justice system that is out of balance, letting the guilty go free, and leading to “the conviction of innocent people.”

Take the case of Sergio Castillo.

Now he can see his kids off to school. But just recently, he spent 13 years in a Texas prison.

“Convicted unjustly” he says, breaking down into sobs, by the then-Cameron County district attorney.

“It was a very clear constitutional violation,” his attorney Keith Hampton said.

Hampton said an argument at a Brownsville home turned into a shootout.

In the end, Castillo was charged for attempted murder.

But Hampton said there was a big problem.

“The offense reports contained all of the witnesses that exonerated him,” Hampton said.

However the prosecution in the Castillo case never shared those reports with Castillo’s then‑lawyer.

As a result, at trial, Hampton said, “the defense never brought it up and the jury never learned about it.”

Sergio Castillo was found guilty and sentenced to 25 years in prison.

“None of this should have happened,” Castillo said. It took a dozen years for the state appeals process to finally strike his conviction and free Castillo.

But he still mourns for what was lost.

“There’s nothing that, that can give me my time back,” he said.

11 News asked the current Cameron County DA for comment on Castillo, but he declined. Why?

Because he is considering filing new charges against Castillo in connection with the same crime.

The Harris County prosecutor in the Gary Scales case also declined comment, saying she was still investigating the drug crime itself and thus was prohibited from speaking on it.

However Chuck Rosenthal said 99 percent of the criminal cases that come through his office offer an open file to defense attorneys.

He also defends the state law and Harris County’s implementation of it by pointing out that defense attorney’s don’t have to share any of their file or investigative reports with the DA.

But Keillen and other experts say Rosenthal’s last claim is misleading. That’s primarily because they say the majority of criminal defendant’s are poor or indigent and can’t afford their own private police or private investigators and hence there is frequently nothing to share.

They also say that whether the poor get such investigators is up to the court they are being tried in which they rarely do. Keillen also said when that does happen, the money the court allots for such an investigator is extremely limited.

It is because of the above, Keillen said, that it is much more likely that innocent defendants that are poor will wrongfully convicted.

However Keillen said she does think it is in the best interest that both the prosecution and the defense have equal and reciprocal discovery in cases.  She said such a practice would better promote justice.