A prosecutor from Wharton County opened the discussion with this June 10 post:
Our defense bar is very unhappy we are using a 39.14 waiver (which only waives further discovery of inculpatory evidence AND NEVER exculpatory evidence). Anybody else dealing with this? [Ed. note: 39.14 is the Michael Morton Act]A prosecutor in Collin County said they required a similar waiver. In an additional post, the Wharton County prosecutor clarified, "All we are asking is the waiver of any further right to inspect or copy discoverable items other than Brady and/or subsection (k) items."
Do we need a waiver?
Should it blow up a plea if counsel won't agree or acknowledge the waiver?
I've also heard some judges won't allow a waiver? Anybody run into this?
I was pretty sure I had thought this all through already, and a waiver was the way to go when we enter a plea. Things are getting messy, though. Anybody out there running into any new related 39.14 issues?
I'm not a lawyer so perhaps some defense attorney readers can explain to me: Why would anybody sign that? The prosecution is required to give the defense statutorily required discovery under the Michael Morton Act, whether counsel signs a waiver or not. I understand why the prosecutors might want a waiver, but what's in it for the defense side? Thoughts?
Also, have defense counsel in other jurisdictions encountered similar waivers? If so, please say where in the comments. (In fact, if you're willing, email me examples if you've got them at email@example.com.)
Anyway, the CCA's integrity unit can add this to the list of Michael Morton Act issues they should delve into this fall. To my knowledge, nobody's really examined closely how the new law is being implemented on the ground. Doing so in a public forum with all the stakeholders in the room will be a mitzvah.