Wednesday, June 25, 2014

Some prosecutors demanding waivers from defense before handing over Michael Morton Act discovery

Since Court of Criminal Appeals Judge Barbara Hervey's Criminal Justice Integrity Unit announced it will address issues raised by stakeholders related to the Michael Morton Act at their next meeting in the fall, here's a topic for her list from the Texas District County Attorneys Association's discussion forum: Can/should prosecutors seek waivers from defense counsel for any further discovery of inculpatory evidence when they hand over the information required under the Michael Morton Act?

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]

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?
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."

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

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.


Anonymous said...

Brady v. Maryland has been around for 50 years. Prosecutors still routinely disregard it. I don't see how the MMA will change anything.

Anonymous said...

Why would anybody sign that?

Because they have no intention of appealing and the waiver is part of a dismissal agreement or plea agreement that is otherwise a good deal.

Gritsforbreakfast said...

I can see that, 11:18, although on the flip side, if the defense says "no," the prosecutor still must move her cases, especially if the entire local defense bar were collectively refusing. The pleas will still happen.

Still, can't you see the objection to including that as boilerplate in all pleas? Some may be 100% cut and dry with no possible appellate considerations, but by no means all.

Anonymous said...

Because they are rolling their client and want to get paid that day and their client's rights are not as important as that attorney's need to make the light bill.

Thomas R. Griffith said...

Grits, thanks for bringing the public at large another shining example of "Rigging The System 101", in real time. *We need to see one of them there retaliation "waivers" if anyone has a copy. Do you happen to know if the Waivers are to become part of the defendant’s & state’s case files?

Folks that learn about this (and other in-your-face, "I'll-do-what-I-want" Rigging fiascoes and simply shake it off as - bidness-as-usual, are the same exact folks that allowed (via: their complacency) the system to culminate into the three-ways-to plead joke, we have today. Thanks.

*If you see something illegal being conducted in a court of law, report it.

The Homeless Cowboy said...

I'm going to agree with 11:08 today, any defense attorney who would allow their client to sign this kind of document should be disbarred. Any prosecutor that is so afraid of their case that they feel they need something like this should revisit the rules of evidence. Man I do not believe the depths some people will sink to. Anyone who would touch an agreement like that should be in jail themselves. How dare anyone even suggest this completely stupid type of thing as a legal solution. They should be ashamed of themselves for even considering it. In fact who ever thought it up should be drummed out of the legal profession, how completely shameful.

The Homeless Cowboy said...

It's Me again, Im sorry but this runs me really hot. If you are an attorney on either side of the fence Prosecutor or Defense attorney and you asked for or allowed a client to sign something like this, I hope you are disbarred this is as mind numbingly stupid a thing as I believe I have ever heard of my god why not just have people plead guilty for the death penalty while you are at it. Thank You Mr. Griffith for being a sane voice in an otherwise insane thread, I can see Scott laughing his head off at me losing my mind on you people. It is crazy and if it is not against the law it damn well out to be. Holy Hannah Yall