Randall Sims and R. Marc Ranc 2014-11-27 11:24:44
When the Michael Morton Act took effect in January 2014, it changed the way criminal cases are handled in Texas—and how prosecutors and defense attorneys work. THE PROSECUTION Texas made national news in 2011 when a Williamson County man, Michael Morton, was freed from prison after spending 25 years behind bars for killing his wife before DNA evidence linked her murder to another man. In light of Morton’s actual innocence—and prosecutorial misconduct by the district attorney who tried his case— the Texas Legislature in 2013 passed mandatory discovery rules through the Michael Morton Act (S.B. 1611). This new law has changed criminal discovery dramatically by codifying open-file policies. Until the Morton Act’s passage, the Legislature had made no major changes to the Code of Criminal Procedure Art. 39.14, which regulates criminal discovery, since 1965. And in the opinion of many—including myself—it was still working very well. When discovery was first codified in the 1960s, closed-file policies (meaning that the prosecutor’s case files were not made available to the defense) were the norm for Texas prosecution offices, and judges were very involved with the discovery process because they constantly had to rule on discovery motions. By the 1980s, however, many prosecutors’ offices instituted open-file policies of their own volition, making case files readily available to defense counsel, and by 2013—before the Morton Act had taken effect—all but two Texas prosecutors’ offices had an open-file policy. Now, judges seldom have to rule on discovery motions. The Morton Act, which became effective Jan. 1, 2014, says that the state “shall produce and permit inspection and the electronic duplication, copying, and photographing” of listed evidence “as soon as practicable after receiving a timely request from the defendant” without a court hearing or order.1 The state may withhold items of discovery with notification to the defense attorney that there has been information withheld. The defense may then file with the court to have the judge make a ruling as to whether those items should be disclosed.2 Third-party disclosure of discovery is prohibited with three exceptions: 1) a court-ordered disclosure upon a showing of good cause after notice and a hearing considering the security and the privacy of any victim or witness; 2) the materials are already public;3 and 3) the “entrusted circle,” which includes the attorney, an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant.4 Before allowing the expanded circle (which includes the defendant, a witness, or a prospective witness) to view the items, the person in possession must redact all information, except the name, that might identify someone. Members of the expanded circle may only view—not copy—the information, although a witness may keep a copy of his or her own statement.5 Defendants cannot be agents nor can they receive anything other than a copy of statement unless one of the exemptions from subsection (e) applies.6 Brady v. Maryland7 has long required the state to disclose to the defendant any exculpatory, impeaching, or mitigating document, item, or information in the state’s care, custody, or control that tends to negate the defendant’s guilt or would tend to reduce the punishment for the offense charged—but now it and its case law progeny have been codified.8 The Morton Act added a requirement that the state electronically or otherwise record any document, item, or other information provided to the defendant.9 Such changes to the statute have resulted in sweeping shifts for prosecutors. Three major issues for the state have cropped up. First, already overloaded prosecutors’ offices must put together discovery on each case, provide it to the defense, and document which items were provided and when—all with the same number of employees. Many offices are also filing with the district clerk a 39.14 Notice of Discovery, which enumerates the items given to the defense, as well as keeping a copy for their case file and providing a copy to the defense attorney at the same time they convey the discovery it documents. Making this trickier, a few offices are paperless, so discovery (both in the state providing it and in the defense receiving it) occurs electronically. But the vast majority of prosecutors’ offices still use paper, at least to some extent, and the task of duplicating case files, video recordings, audio clips, and other evidence has burdened stretched-thin staff, budgets, and equipment. Such paper-pushing offices have a couple of choices. The first is to make paper copies of everything for the clerk and defense counsel. The second is to go electronic by scanning the discovery items and report and then providing an electronic copy to the defense by email, cloud storage, thumb drives, or something similar while retaining the electronic file. The majority of district clerks in Texas are already mandated to be fully paperless on civil matters, and it is coming soon for criminal cases. Perhaps prosecutors should start moving that way with discovery. Second, prosecutors must wrestle with how to handle pro se defendants. Pro se defendants may only inspect the items in the case file and have no rights to duplicate anything.10 Most non-lawyer defendants are unfamiliar with the law and the court system, making discovery and its documentation difficult for those attorneys who represent the state. Lastly, prosecutors must figure out how to do discovery when the defendant wants to plead guilty before all the discovery evidence has been made available. And with the vast majority of criminal cases that are disposed by plea agreement—especially misdemeanors—this is of major importance. Many offices are drafting waivers for defendants who are pleading guilty before discovery has occurred to explain the situation and note that the defendant voluntarily waives the right to discovery. Many prosecutors, defense attorneys, and judges believe the Legislature should revisit these issues and exempt misdemeanor crimes from the reporting requirement. The Morton Act has put an extra burden on county offices, and those who want to plead guilty before discovery have made this year a challenging one for prosecutors, to say the least. But overall, the employees of prosecution offices have stepped up to these challenges and adjustments, as we know that our duty is to seek justice, no matter its cost. RANDALL SIMS NOTES 1. Tex. Code Crim. Proc. Art. 39.14 (a). 2. Tex. Code Crim. Proc. Art. 39.14 (c). 3. Tex. Code Crim. Proc. Art. 39.14 (e). 4. Tex. Code Crim. Proc. Art. 39.14 (f). 5. Tex. Code Crim. Proc. Art. 39.14 (f). 6. Tex. Code Crim. Proc. Art. 39.14 (f). 7. 373 U.S. 83 (1963). 8. Tex. Code Crim. Proc. Art. 39.14 (h). 9. Tex. Code Crim. Proc. Art. 39.14 (i). 10. Tex. Code Crim. Proc. Art. 39.14 (d). RANDALL SIMS is a prosecutor of 30 years in the Texas Panhandle with over half of those as an elected district attorney. He is active in the Texas District & County Attorneys Association and with criminal law issues in the Texas Legislature. THE DEFENSE What has the Morton Act brought the criminal defense bar? Throughout Texas, all prosecuting attorneys must now have mandatory open-file discovery. The defense has also been given certain duties in handling the information that is made available, and finally we had the much-needed codification of Brady duties. One thing is for certain: it has made a world of difference. Having practiced criminal law in both Williamson and Travis counties for more than 20 years, I have been at the epicenter of the cause for change in how discovery is handled in Texas criminal cases. I started out in 1993 as a young prosecutor in the Williamson County Attorney’s Office, working in the misdemeanor and juvenile courts. After two years, I was hired by the Travis County District Attorney’s Office as an assistant district attorney prosecuting felony crimes. After seven years, I left to become a criminal defense attorney. For the past 14 years, I have spent most of my time between Williamson and Travis counties representing clients. I quickly learned that how each county dealt with the defense bar was drastically different, particularly in how the two district attorney’s offices handled discovery. In both counties, the misdemeanor courts of the county attorney’s offices had open-file discovery practices. Offense reports were always readily available for copying and inspection. Any other media or evidence was turned over with the proper order and, in many instances, even without an order being necessary. It was an entirely different experience with the district attorney’s offices. Travis County policies were not too onerous. You couldn’t make copies of anything, but you were able to go to the prosecutor’s office and pretty much receive a complete open file to review. You just had to make your own notes by hand. It was a little tedious, but at least you had access to whatever you needed or requested. On the other hand, in my experience, the Williamson County district attorney’s policies presented problems. Discovery was typically handled by the defense attorney having to sit across from the prosecutor in charge who would read out loud the parts of the case file that the prosecutor felt were pertinent to the case. You were allowed to take notes as you listened and you would receive a copy of your client’s own statement(s). But for the most part, you were not allowed copies of witness statements until after the witness testified at trial. Personally looking at any of the reports or other statements that the state had in its possession was out of the question; if you were lucky, you might get the opportunity three or four days before trial to sit down and look over some of the reports. Obviously, if your client did not want a trial, then there were possibly reports, evidence, and statements to which you may never have had access—another problem in and of itself in trying to negotiate a fair plea deal. There was the philosophy advocated by the district attorney’s office that a defense attorney didn’t need to see all of the reports or other statements, because the defense attorney could just get the information from the defendant. Even with court orders from the judge, discovery was accomplished in this manner as well. The district attorney would further assert the idea that if the prosecution gave the defense an open file, the information would prompt the defendant to concoct a story in defense of the accusations against him or her. I think most defense attorneys would agree that this idea is preposterous. This kind of “hide-the-ball” mentality with the belief that the ends justify the means is what I believe went on in Williamson County for some time. Until the very end, the belief was propounded that if the state’s files were completely open, then the state could never win a prosecution. What an absurd position especially when the goal should be to seek justice. In my view, this would have continued had it not been for the strength of Michael Morton and the resulting Morton Act. I believe the most important change we are experiencing with the Morton Act is in the steady flow of information from the prosecutor’s office. Now with a simple request, on a daily basis, I receive copies of full offense reports, most of which are delivered by email and easily saved in clients’ folders. Gone are the days of “Here, I’ll tell you what is in the offense report.” For those of us who have been doing this long enough, we know that having a full offense report is half the battle. It is the starting point for what moves need to be made next in the discovery process on behalf of the defendant. As to other evidence, such as media, Children’s Advocacy Center videos, or any other items necessary to the prosecution and defense of your client’s case, these are made readily available as soon as they come in. There is no more hiding the ball. The prosecutors no longer decide what is material and relevant or what they think may be admissible. It is now given in its entirety. This is of course wonderful for defendants and their defense attorneys, who now have an opportunity to see everything the state has and may use to prosecute. But this can be a double-edged sword. So much information exists even in what we may consider the simplest of cases. For instance, you now get to watch and listen to every single video in a DWI case, from every angle, from every camera, from beginning to end. Who knows when, all of a sudden toward the end of disc five, you stumble across a great piece of evidence that shows your client’s innocence or you hear an officer’s mistake. With a true open-file policy, the defense is now given more but it also has to be more meticulous about the review of all materials. The Morton Act is giving those accused of a crime crucial access to necessary information to better defend against accusations that have been brought against them. The Morton Act continues to evolve. I am sure at times the prosecution and the defense have differing views on what it specifically requires, but those differing views are few and far between. The main reason for this is the cornerstone of the Morton Act: the codification of Brady and its duties. By opening the state’s files, the argument over what is considered Brady material is greatly quieted. Williamson County is a much better place to practice criminal law because of the Morton Act. I firmly believe that no matter how long it takes, the truth comes out. Our judicial system was not perfect, and it was definitely broken in Williamson County. But we are now on the right track. The Morton Act has leveled the playing field. It will make all of us—prosecution and defense—better lawyers. After all, we are all officers of the court and integral parts of the judicial system, and we all want the same thing: justice. R. MARC RANC TBJ R. MARC RANC is a partner in the firm of Hines, Ranc and Holub. He is board certified in criminal law and has practiced criminal law in the Central Texas area for more than 20 years EXONERATIONS According to statistics from the National Registry of Exonerations, Texas has consistently been one of the top three states with the most exonerations, and two of its counties have some of the highest numbers in the United States. The registry’s figures must be considered alongside several factors, including population, local presence of active innocence organizations (such as the Innocence Project of Texas), and exonerations that are discovered by the registry years after the charges were dismissed or the defendant was acquitted. It is therefore difficult to determine whether higher exoneration numbers indicate a trend in wrongful convictions, increased efforts toward freeing innocent people, or more thorough searching for data to add to the registry. “We don’t know how many [exonerations] there are, and I don’t think we will ever know definitively,” said Maurice Possley, senior researcher for the registry. “In New York and Texas, we have spent considerable time examining cases where compensation was awarded. As a result, we have found cases we did not previously know about.” The charts below provide statistics on state cases (including acquittals and dismissals due to overturned convictions) from Jan. 1, 1989, to Oct. 30, 2014, unless otherwise indicated. The registry selected 1989 as its starting point based on when the first DNA exoneration was recorded. “It just seemed like a logical beginning point,” said Possley. “It ushered in the DNA era as we know it.” For more information on the registry, a project of the University of Michigan Law School, go to law.umich.edu/special/exoneration. For the Innocence Project of Texas, go to ipoftexas.org. LINDSAY STAFFORD MADER
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