Monday, May 13, 2013

Open-file discovery bill named after Michael Morton soon headed to Governor

Find below the jump a press release from state Sen. Rodney Ellis hailing the passage of the so-called Michael Morton act requiring Texas prosecutors to implement open-file policies.
Ellis/Duncan landmark reform revamps Texas’ discovery statute for first time in half century

(Austin, Texas) The Texas House today passed SB 1611, the Michael Morton Act, landmark reform revamping Texas’ discovery statute for the first time since 1965. The reform legislation now goes to the governor’s desk.

The legislation by Senator Rodney Ellis (D-Houston) and Senator Robert Duncan (R-Lubbock) will provide for a reliable justice system by ensuring that all relevant evidence that speaks to a defendant's innocence or guilt is revealed.  It creates a uniform, statutory "open file" criminal discovery policy for the State of Texas.

“This is an incredible day for justice in Texas," said Ellis. “We must weigh all relevant evidence and ensure we bring all the relevant facts to light to safeguard the innocent, convict only the guilty, and provide justice the people of Texas can have faith in.”

“I have long been an advocate for an efficient, effective and uniform court system across Texas.  This legislation is a giant step forward in reaching that goal," Duncan said. "I am proud that stakeholders from across the state were able to come together and set aside their differences to improve our criminal justice system.”

The legislation is the culmination of weeks of talks between stakeholders and relevant parties  who put countless hours into this effort with Senators Ellis, Duncan, West, Huffman and Whitmire, their staff, judges, particularly Judge Barbara Hervey, prosecutors, criminal defense attorneys, the Governor's office,  Thomas Ratliff,  Michael Morton and his attorneys, and more.   Each of these men, women, and organizations put the interests of justice ahead of self-interest, and by coming together helped created a truly historic justice reform. 

"Passage of SB 1611 will increase transparency and accountability in criminal cases at a stage when we can still prevent wrongful convictions like Mr. Morton's," said Ellis. "I want to thank Mr. Morton for holding our feet to the fire and making this happen."
SEE MORE: From the Texas Tribune, Dallas News, Austin Statesman, and the Houston Chronicle.


dogstir said...

Let’s look at this GREAT new law line-by-line:
“as soon as practicable after receiving a timely request from the defendant”
• How soon is practicable?
• What’s a “timely” request, and who decides if it’s untimely?
• The request must be made by the defendant (not his lawyer)?
“the state shall produce and permit the inspection and the electronic duplication [scanning?], copying [bring our own Xerox machine?], and photographing,”
• So we get to look at the originals and get copies too, okay, not too bad
“by or on behalf of the defendant”
• So the defendant himself gets to inspect and get copies himself… or on his behalf? If the defendant is represented by an attorney, then the State “shall produce and permit the inspection…” etc.?
“of any offense reports [etc.]… that constitute or contain evidence material to any matter involved in the action”
• Who decides what is material?
• We get other offense reports, etc. for other cases, if something is material to that case?
“and that are in the possession, custody, or control of the state or any person under contract with the state.”
• Are the police under the control of the state? The law isn’t exactly clear on this all of the time
• Won’t the State just say ‘we didn’t have it’ (that’s the prosecutors’ excuse all the time now).
“not including the work product of counsel for the state in the case and their investigators and their notes or report”
• So they quit using cops and have their investigators do all of the investigation and then we get nothing?
“The state may provide to the defendant electronic duplicates of any documents or other information described by this article.”
• Does that mean in place of our own inspection of the originals?
“The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state.”
• Isn’t an offense report just a written communication from the cops to the prosecutors?
• If not, won’t the police just quit writing offense reports and email the reports to the prosecutors as “communications” and then we aren’t entitled to the information?
“This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.”
• The rule isn’t “may” be in the presence of a representative, it is “shall” be. So, now taxpayers have to pay for someone to watch us copy discovery?
“If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.”
• So now we get to have hearings on every single redacted piece of information not given to us through discovery? That’s not a waste of judicial resources, is it?
“In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a 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 is not required to allow electronic duplication as described by Subsection (a).”
• But wait a second, the court doesn’t have to order the state to produce, etc. Subsection (a) already says that as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication [scanning], copying [bring our own Xerox machine?], and photographing, by or on behalf of the defendant! Why does the court have to order what the law already says a defendant automatically receives upon timely request?

dogstir said...

“the defendant, the attorney representing the defendant...may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article”
• Who is an agent of the attorney? Can’t an attorney just say anyone is an agent and then share away? Why wouldn’t an attorney not make everyone an agent of the attorney?
“The attorney representing the defendant, ...or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness's own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver's license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.”
• Okay, so we know the defendant cannot be the agent, but doesn’t that mean anyone and everyone else can be?
• Note: this says the attorney gets the information and must make the redactions himself or herself. The state does not get to redact that information anymore. That should make it easier to find people, at least. And, no more of this “the defense counsel cannot contact witnesses without going through our office first” bull crap.
• This means we must also redact the address, telephone number, etc. of our own client. We sure wouldn’t want our clients knowing their own social security numbers?
• Of course, this just says we can’t let them VIEW the information. Nothing prohibits us from telling them any of this information. So long as we speak and don’t show, it’s okay? What’s the point of that? In fact, nothing here says we can’t just type out everything in the report word-for-word (identifying info for identifying info) and give THAT to the defendant. What does this no providing copy and redact everything b.s. accomplish exactly?
• Also, what’s the punishment for violating any of these rules? There are no criminal punishments provided. When DPS or the State doesn’t do something a rule says they should, the appellate courts always point out that shall doesn’t mean shall unless there is a punishment attached. What you say? The State Bar disciplinary process? Hmmm.

dogstir said...

“Nothing in this section shall be interpreted to limit an attorney's ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name…address, telephone number, driver's license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness.”
• This is my favorite part… we can not tell our clients who is accusing them of having committed a crime? I love it! What about the U.S. Constitution? Right to confront? Anyone heard of that? Oh, I see, the complaining witness has to testify in court, but I’m not allowed to tell the defendant ahead of time THE NAME of the person accusing him of having committed a crime? PLEASE! We sure wouldn’t want it to be possible for someone facing life in prison or the death penalty to know who caused charges to be brought against them!
“Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.”
• If the complaint is ultimately rejected, is that a bad faith complaint?
“Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.”
• Who decides what would “tend” to reduce the punishment for the offense charged?

dogstir said...

“The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.”
• Get ready to spend an hour making sure the state actually gave you everything they say they gave you. That flat fee is looking smaller and smaller every day!
“Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.”
• Get ready for two hour long pleas… “Next we have a one page document with no title and no identifying information, it seems to be a blank page included with the reports and it only has the case number at the top” “No, that’s a different page” “Well, did I get that one?” “I think you did.” “I don’t think I did” “Let me see that” “Oh no, we just got this.” “Can we reset for the tenth time while the prosecutor makes me yet another copy of some document he just got?”
“If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.”
• 99 years later? At any time? Let’s see, ten years after your guy gets twelve months in State Jail, the prosecutor is talking to a witness who mentions he knows the defendant. He says that guy went to church with him before he got into trouble. Does the State now have to hunt the lawyer down and provide him with this new information which might “tend” to reduce the punishment for the offense charged?
“A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.”
• I looked it up. 10 cents a page. Plus labor for making copies. If price exceeds $40 they have to tell you first. Can’t we just avoid all of that by bringing our own scanner and making our own scans?
“To the extent of any conflict, this article prevails over Chapter 552, Government Code.”
• This is the Texas Open Records Act
“This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.”
• WHAT?!?! What prosecutor is going to agree to more? What is left, work product? Sure, I can see the state agreeing to provide copies of their word product.

dogstir said...

One last thought and then I'll leave it alone... if the defendant himself does the inspection then he or she will see all of that private information (there is no provision for the State to redact the information, only the defense lawyer). So, the defense lawyer has to redact information before the defendant can view his copies but if the defendant just goes to the prosecutor and inspects it himself he gets to see all of that unredacted information? Who writes these messed up laws?

Anonymous said...

How am I suppose to discuss the case with my client if I can't even tell him the name of the accuser? It's going to make trial prep with the client extremely difficult.

Anonymous said...

This is what happens when only one side (the prosecutors) gets to draft a bill. A defense attorney would have pointed how unworkability of this law.

Gritsforbreakfast said...

Your critiques are coming a little late, dogstir, did you show up in committee to share them with the members or is this just post hoc whining? It's a done deal now.

Anonymous said...

Oh please they went into a close section with just prosecutors. Defense attorneys weren't invited of welcomed because they knew the two sides would never agree. Plus gives defense attorneys a break- we actually have to make a living. No one pays me to go legislate for common sense laws. Unlike prosecutors, who get paid whether they work or not, I have to work to feed my family.

dogstir said...

I'm embarrassed to admit that I have to work for a living. Unfortunately I trusted the wrong people to do the right thing.

Also, not whining. Just pointing out the idiots behind this junk are creating more problems than they are solving. I'm happy about it, though. We lawyers will get paid to straighten it all out.

Anonymous said...

Dog Stir is absolutely right on point. This is a well written and thought out bill from a layman's perspective. For a lawyer (I am sure Dog Stir is a lawyer) the legislation creates three problems for every solution. Instead of deflecting by blaming Dog Stir for not showing up in committee, perhaps Gritsforbreakfast should quit whining and address the valid points DogStir points out.

Gritsforbreakfast said...

Dogstir, you had time to pound out a seven-part critique on Grits, did you send a single email to a legislator about it? Make one phone call? If you had time to write all this you had time to express your concerns to the Lege, whether you work for a living or not.

7:53, responding in detail would be as pointless as dogstir's post hoc complaints. A) it's not my bill so I'm under no obligation to defend it, B) most of the questions are rhetorical, not substantive, and C) it's irrelevant, the deed is done. The time for debating the merits is past.

7:51, it's true the defense bar walked away from the table and refused to negotiate but completely false that they weren't invited to participate. As I said before, if defense attorneys don't like the contents of the bill IMO the main culprit is TCDLA for engaging in demagoguery and refusing to engage in the process.

dogstir said...

1) I'm sorry, I thought I voted for representatives to pass good laws. Is this not a representative democracy? If I had the time to concentrate on every single law then of what use is the Texas Legislature?

2) you still mistake my critique for giving a darn. I don't. I'm pointing out how stupid everyone who worked on that unworkable law is. Sorry if you are offended. They did a poor job. I'm not saying I could do better. That's why I'm not participating. I just expect more than they are capable of, apparently.

Finally, you love saying it's a done deal, as if that is the end of it. It's not. It's just the beginning of our dealing with this mess. C'est la vie.

Anonymous said...

"...most of the questions are rhetorical, not substantative,....' unless of course if you are charged with a crime. It appears that Gritsforbreakfast attacks when you can't defend the drivel about the Morton Act. Gritsforbreakfast can't respond to Dogstir, not because the response is pointless, but because you don't have a point to make. I know now why it's called GritsforBreakfast and not NailsforBreakfast.

Anonymous said...

Good point dogstir. Why do we elect legislatures and pay them if we have to do their job for them.

Thank you for pointing out how impossible this law is going to be for real trial attorneys.

I think they let the prosecutors add in all that b.s. in hopes that Perry won't veto this bill. Unfortunately, the lawyers and courts are going to have to fix it like usual.

Skifool said...

Interested to know more about why the defense bar "walked away from the table." Most of the time, they don't help themselves during the legislative sessions.
Prosecutors draw just as much fire but hang in there.
Of course, there is going to be an institutional distrust between the two groups. However, it has not benefitted the defense bar to refuse to engage, taking their toys from the sand box and going home. New leadership of TCDLA needed, perhaps?

Skifool said...

This bill is a good basic bill that places procedures followed by a lot of DA's today into statute. The part I like the most is the requirement that the DA keep good records of what they provide and when. Sure, it's a lot of trouble, sure, a new computer program may have to be written to capture the information (oh, you mean 20-year-old hand written notes won't suffice???).... But that requirement protects both the State and the defense during the Brady claims to follow. The documentation (or lack thereof) will make it easier for the trial courts and appellate courts to decide the question. The prosecutor arguing the case years later will know what the heck was going on. The defense attorney who does not follow through on information requests and later argues a Brady claim won't be successful and might be encouraged to get another job.

Anonymous said...

Why do we elect legislatures

Why? Because we have to, but as far as a motivation, why can usually be explained as out of fear, ignorance, or partisan politics.

and pay them

Do you know how much a Texas legislator makes?

And you know that as a general rule we think they are so awful at their jobs that we only let them meet once every two years, so they don't screw things up every single year, right?


Anonymous said...

None of this would even be necessary if it weren't for crooked prosecutors. Put a few of them on Death Row and the problem goes away overnight...

Thomas Ratliff said...

This bill was heavily negotiated by ALL parties (defense counsel, Texas Defense Service, DAs, state senators, Governor's office, Innocence Commission-Barry Scheck personally, and the list goes on and on. For those of you trying to say what did or didn't happen in the negotiations, you aren't speaking from an informed perspective so please stop guessing. This bill is not perfect from anyone's perspective, but unless you were involved or offered input during the process, to chime in now from your Monday morning QB chair is worthless and not helpful.

dogstir said...

Mr. Ratliff: to quote the great Mr. Grits, "Notably, the Texas Criminal Defense Lawyers Association wasn't at the table when the final deal was struck." Discovery reform passes Senate with defense bar on the sidelines

You say "This bill is not perfect from anyone's perspective".. then why was it passed? We don't pay those folks to do a half-assed job. To quote the great Yoda, "Do or don't do.. there is no try.:

Then, "unless you were involved or offered input during the process, to chime in now from your Monday morning QB chair is worthless and not helpful."

Worthless? Not helpful? I think it's helpful and worth pointing out that everyone who worked on this bill did an "imperfect" job so we know not to trust those folks in the future. Fool us one, shame on you, ya know?

Anonymous said...

I'm guessing that Mr. Ratliff was "involved or offered input during the process".... that is what a lobbyist does.....for money. Speaking as a lobbyist, Mr. Ratliff informs us uninformed and nonparticipating citizens that what he does for money means more than our worthless Monday morning quarterbacking.

Nothing personal against Mr. Ratliff who may be ethically challenged, I still agree with DogStir.

Anonymous said...

Will the new law affect the Plea & Flee industry?

Anonymous said...

Does it force the Trial Judge to actually respond to defense pre trial discovery motions by way of Court Orders – ‘Agree’ or ‘Denied’?

Anonymous said...

Would it ensure that (appointed / hired) CDLs are actually qualified to take felony cases (5 to 99s) where its required to file Ready for Trial notices?

Anonymous said...

What was the official excuse(s) as to why the TCDLA (3500) refused to partake in this particular criminal justice system reform matter.

*Before the reciprocal? -

*After it was removed? -

Anonymous said...

Get ready to spend an hour making sure the state actually gave you everything they say they gave you. That flat fee is looking smaller and smaller every day!

Dogstir, while I agree that you have pointed out the bad loopholes as well as the good parts and asked good questions, the phrase “flat fee” answers my question as to if you are a professional appointee or a fighter, who else would use those words and complain about working an hour on behalf of a paying client?

Maybe this new law will force you fight or get the hell of the way.

Anonymous said...

“Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.”
• Get ready for two hour long pleas…

The moment you assumed that the new law will force criminal defense lawyers to put in two hours on behalf of the 97% cases, may have answered why the TDCLA stayed home.

With 97% cases plea bargaining without a jury trial, that means that the majority of lawyers would look stupid if the association testified against their ability to avoid jury trials. Btw, you asked some very good questions that I hoped the TCDLA would ask during the process but declined an open invitation to participate in historic judicial reforms. With that, I see you didn’t personally participate due to - “They did a poor job.”

In my opinion, they got away with inserting the craziest crap they could because the other team failed to show up. It’s called Forfeit if you get all dressed up and decide not show up. Those that did show up took what they could get.

Anonymous said...

If 3% go trial and 97% plea bargain, and there are 3500 TDCLA members, how would we learn what percentage of the 3500 are in the Plea & Flee Association?

Hint. You won't get an answer fron the TCDLA.

dogstir said...

I'm sorry to disappoint but I am not on any court-appointed list. I charge my clients a flat-fee that covers all necessary work. If I do more work (which this bill will require), I make less money. Either that or raise my fees.

dogstir said...

I agree. I am maddest at TCDLA. What are we paying them to do?!!!

dfisher said...


It does not matter that dogstir didn't email, call or testify about this bill, as it would have made no difference.

I emailed, called every member of the senate criminal justice committee & house jurisprudence committee, and offered to testify over bills SB-336 & HB-1192 to no avail. Both bills were past and sent to the governor. Both these bills are bait and switch bills use by El Paso CO to hire non-U.S. citizens to be the county deputy & chief medical examiner, which violates both the TX & U.S. Constitutions.

I'm not like most people who simply take a loss and go away. I filed a criminal complaint with Homeland Security detailing how the EL Paso CO Commissioners Court aid the foreign student to submit a false H-1B Visa Petition. Homeland Security took the criminal complaint and recently forwarded it to the U.S. Attorney in El Paso.

Monday, Ector CO removed their medical examiner over a constitutional violation I raised, that makes all death certificated for the last 7 years void and this time I will not be content with just the removal of the ME. I will bring a criminal charge against Ector CO seeking an indictment of a 3rd degree felony for all death certificates filed in Austin for at least the last 7 years. Then I will take the issue federal.

From here on out all ME removals will be followed with criminal filings and I can make them stick.

Longhorn74 said...


For the last several weeks I have read with bemusement your blogging regarding the negotiation of Discovery Bill that is sitting on the Governor's desk awaiting signature as I write.

You were the one who started the rumor that TCDLA was on the "side lines" and unless they came to the table they would be "left at the station."

You quoted sources that said that the bill would be "steamrolled" regardless of what TCDLA did unless a reciprocal discovery provision was agreed to by TCDLA.

You were misinformed. The Texas Defender Service was complicit in promoting a reciprocal discovery bill in a desperate attempt to justify their George Soros Foundation Grant to "clean up Texas". Indeed, they were actively seeking to impose reciprocal discovery on the criminal defense bar and represented themselves as spokesman for the criminal bar of Texas.

Their talking points were that the prosecutors would never agree to an open file statute without TCDLA agreeing to reciprocal discovery.

Any statute containing a reciprocal discovery provision was a non-starter for TCDLA and the real criminal defense bar. If that is not "coming to the table" then so be it.

TCDLA lawyers were very involved in the markup with the staff of Senator Ellis and Senator Duncan. The lobbyists who you called "lame" were diligently involved in the negotiation of this bill at every stage until the TDCAA agreed to drop their demand for reciprocal discovery.

Our lobbyists were involved in this bill intimately and aggressively and the result is a bill which mandates an open file policy for every District Attorney's office in Texas.

In every legislative session for the last 15 years there has been a bill introduced to mandate reciprocal discovery. With this bill that debate is over for years.

If there was any "steam rolling" of the bill it was an attempt by the Texas Defender Service and not by the politicians. The win for the defense was "putting to bed" for the foreseeable future any "reciprocal discovery.

I can categorically say that TCDLA obtained a significant victory for the criminal defense bar:

NO RECIPROCAL DISCOVERY and a statewide open file law. It is not perfect but your files will remain closed.

You are usually right on most criminal justice issues and I read you frequently. However, at it relates to TCDLA you are very misinformed on the efforts of our lawyers and lobbyists who performed admirably behind the scenes.

Bobby Mims
President-elect of TCDLA
Tyler, Texas

Anonymous said...

President Mims, by reading the piece Grits did give a shout out above to those particiapting in this historic moment.

I'd like to thank you for standing up the TDCAA's Reciprocal Discovery that went so far it was absurd. There's nothing wrong with sharing in an effort to cull out the guilty from the not guilty prior to filing ready for trial notices but they got a little carried away. If you were one of the criminal defense attorneys mentioned above, thank you for participating, testifying and working hard to bring some form of dignity to the profession.

Do you believe everyones hard work and this new law will have any affect on the plea bargain fiasco?

Longhorn74 said...

I do not.

Our goal at TCDLA was to "kill" reciprocal discovery.

This bill only affects a few DA offices with closed file policies. While it bears Michael Morton's name it cannot solve Morton-like problems. No law can prevent Brady violations by a prosecutor determined to hide exculpatory evidence.

There is other legislation pending seeking to address the problem of defense lawyers who are involved in plea mill practice. This bill was not designed to address that issue.

The great victory for the defense is reciprocal discovery is dead in Texas for the foreseeable future. For those of us who have fought this demand from the prosecutors for years its a big deal!

Bobby Mims
Presidnt-elect o TCDLA