Discovery reform is still reforming. One thing that makes the Legislature entertaining is its unpredictability. For instance, the latest version of SB 1611 by Ellis (D-Houston) and Duncan (R-Lubbock), now titled “The Michael Morton Act,” was passed out of committee and sent to the Senate floor with an understanding that language protecting victim/witness information still needed to be settled upon. The problem is, that has not happened, but the bill is scheduled to be debated on the Senate floor on Monday anyway. That could lead to some fireworks on the Senate floor between the bill’s authors and Senator Joan Huffman (R-Houston), a former prosecutor and judge who is seeking to add her own language protecting that information from distribution to third parties or the public. We’d be lying if we told you we knew how it was all going to shake out, but if you need more information before you make a recommendation to your own senator(s), contact Rob Kepple for additional background.So I looked and, sure enough, as it came out of committee SB 1611 by Ellis on the Senate side has been placed on the intent calendar and includes provisions for a gag order that wasn't in the bill as filed:
On a showing of good cause specific to the case, the court may enter an appropriate protective order that a specified disclosure be denied, restricted, or deferred or that the attorney representing the defendant is prohibited from distributing to a third party offense reports or witness statements received from the state. For purposes of this subsection, "good cause" includes the probable loss, destruction, or fabrication of evidence, the probable compromise of an investigation by law enforcement, or evidence of intimidation, a threat of harm, or danger to the safety of the victim or witness. In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of the document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but, notwithstanding Subsection (a), is not required to allow electronic duplication of the document, item, or information.If Shannon's right, that language was a placeholder for language to be negotiated (that's how they roll in the Senate), but the parties never could come to an agreement.
The bill carries the name, the Michael Morton Act, but one wonders if Morton and other high-profile exonerees would ever have been cleared by the courts if, when exculpatory evidence was discovered, his attorneys and supporters had been required to stay publicly mum outside the confines of a Williamson County courtroom? How much sense does that make? The gag order provision seems a disservice to Morton and others sent to prison based on alleged prosecutorial misconduct. Why not just conduct criminal prosecutions in the open and let the chips fall where they may? Or, barring that, be sure to gag police and prosecutors from speaking publicly about evidence as well.
MORE: From the Texas Tribune (April 9), see "Fight over information security could jeopardize 'Michael Morton' Act."