THE Michael Morton Act

Not willing to settle for his own freedom, Morton decided to lobby the Texas legislature for changes that would help prevent wrongful convictions in the future. Morton invested his own time and money to appear at hearings, attend meetings, and allowed his name to be used for a signature piece of legislation.

SB 1611, also known as the Michael Morton Act, changed the landscape for criminal discovery dramatically in Texas. Prosecutors used to have discretion of how much, if any, evidence to share with attorneys for defendants prior to trial. While many prosecuting attorneys had “open file” policies, allowing attorneys to review all the evidence in the file, there were notable holdouts. But, gone are the days of discretionary open file policies. New disclosure requirements are mandatory and extend to “all material evidence.” The duty to turn over Brady materials now extends indefinitely—as in forever. And, most importantly, the language of the new law suggests that none of its requirements are waivable, though this non-waiver issue is a continuing point of contention for prosecutors and defense attorneys alike.

First, the new law did not take effect until January 1, 2014. When it did take effect, the law only applied to crimes committed after the effective date. It is not retroactive. Many district and county attorneys’ offices began to comply with the law well in advance of the effective date and some have even applied it retroactively, even though it is not mandatory. There is still a continuing debate about the disclosure of prosecution files in older prosecutions for post-conviction writs or testing, but prosecutors still retain significant discretion in that area.

To initiate the discovery process, a defense attorney must “timely” request discovery from the State. The law does not dictate what form the request must take, but some kind of written document or even an email should suffice. The statute is silent as to what constitutes a “timely” request. There is no need to involve the trial court in the process unless there is a dispute about the privileged nature of some piece of evidence or if a defense attorney violates his or her obligations under the new statute.

The mandates disclosure of items in the possession, custody, or control of the State or any person under contract with the State:

1) Offense reports

2) Witness Statements
    (including law enforcement officers)

3) Designated documents or papers

4) Recordings of the defendant or a witness

5) Designated books

6) Accounts

7) Letters

8) Photographs

9) Objects

10) Other tangible things not otherwise privileged
    that constitute or contain evidence material to
    any matter involved in the action (catch-all)

"Plea agreements: Before any plea of guilty or nolo contendere, the State and defense must read into the record a list of all the evidence against the defendant. Reading the list into the record in misdemeanor cases might be feasible, but not in most felony cases. Also, if you ever need to access that list again, you’re going to need the court reporter’s record just to know what was on the list. The better practice will be for the State to produce a list of all the evidence in its possession and have both sides sign it as part of the plea paperwork and file it with the clerk. That way, there is a permanent accessible record all of the evidence against a defendant.

Forensic Testing: Forensic testing under the new law has proven be more troublesome. Sometimes low-level drug offenders want to take a plea deal to get out of prison before the forensic testing on the drug evidence comes back. There may be several ways to go about this. The criminal defendant agrees, in writing, to stipulate that the drugs are what the State claims them to be, and includes the drugs on the evidence list. If the State follows through with testing and the results are exculpatory, the defendant might be entitled to habeas relief despite all of the above work. So, everyone may just have to wait for drug testing. The same applies to DNA testing. In several instances, trial courts, with the agreement of prosecutors, have un-done such plea bargains. Sometimes the test results were a surprise to the defendants as much as anyone else. But, if science can be used to convict people, it should equally be available to clear them.

Some Privilege Remains: The statute provides specific protections for certain information that has traditionally been protected: the work product of counsel for the State, the work product of the investigators, notes, and/or reports. So, essentially, the statute respects the traditional work product doctrine embodied in the Texas Rules of Evidence.

Defense attorneys have several new responsibilities and limits on what they may do with the information provided under the statute. First, they must redact the address, phone numbers, etc. of every witness before showing a statement to a defendant. Second, defense attorneys are not allowed to make copies of discovery items for the defendant. Third, if a defendant represents himself, he must be allowed to see and hear all of the discovery materials, but the State is not obligated to allow him to copy the material. In all cases, the defendant gets to see and hear the witness statements.

Finally, the statute suggests that its requirements are not waivable. The State and a defendant may enter into an agreement that provides protections “equal to or greater than” those provided by the statute. Some prosecutors and defendants have reached plea agreements that include a waiver of the new protections, but no one has challenged these agreements in court as of yet.

The new law standardizes discovery across the State and removes the trial court from almost all of the discovery process. The disclosure of most routine evidence is mandatory. There will still be disputes about what items of evidence are privileged, but gone are the days
when defense attorneys or judges are left to wonder what
evidence exists, at least in the possession of the State.
Prosecutors must declare everything they have and then
explain why any items, documents, or things were withheld.
The law has brought greater transparency to the criminal
justice process at a time when the public is demanding it
as a matter of fundamental fairness.