The goal of the report "was to reveal any persistent roadblocks to a defendant's access to discovery material despite the Act's passage, and to identify best practices that may ease the transition process for district and county attorney offices." The groups reviewed discovery policies from 144 DAs and 79 county attorneys and interviewed defense attorneys and public defenders in 9 cities. So they were able to perform a pretty effective, top-level overview of emerging issues with the Act's implementation.
Granting broad, early discovery to criminal defendants "reduces the risk of wrongful convictions, and promote the efficient resolution of criminal cases," opined the report authors, and though the Michael Morton Act represents perhaps the most important innocence reform Texas has implemented in the 21st century, there have been hiccups.
The report criticizes excessive redaction of documents and improper withholding, in particular highlighting offices which withhold "entire records at the victim's or another witness' request." For example:
A draft of the Harris County District Attorney Office’s redaction policy, which was not adopted but was in its final phases at the time of disclosure, directs prosecutors to notify interested third parties before disclosing certain materials because “[t]his gives them an opportunity to intervene and seek an appropriate protective order.”
Yet, the redaction requirements in Articles 39.14(c) and (e) anticipate that the prosecutors will only redact information that is not subject to disclosure — i.e., privileged information. The defense team—including counsel, investigators and any experts—is responsible for redacting additional information before showing materials to the defendant, a witness, or a prospective witness. This policy balances the defense’s right “to . . . information that [is necessary] to adequately prepare” its case with the prosecution’s duties “to protect the vulnerability of witnesses and victims who find themselves in the criminal justice system, many times, of course, through no fault of their own.” Redacting such information before disclosing materials to defense counsel short-circuits this process intended by the Act.Grits particularly liked this passage explaining why prosecutors shouldn't consult with victims or witnesses about discovery decisions:
inviting third party intervention—particularly that of a complainant—is inappropriate and contrary to Texas law. Complainants do “not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.”The Harris County DA's office also improperly instructed prosecutors to redact offense report information "obtained by a grand jury subpoena," disingenuously conflating confidentiality of grand jury proceedings with the information presented to them to create a new category of information excluded from the defense that's not contemplated in the statute. Other potentially improper redaction policies include exclusion of medical records and lab results, criminal history reports, and bars on dissemination of discovery to defense attorneys who have previously violated the Michael Morton Act. The report says such unilateral prohibitions are subject to abuse and (somewhat lamely) suggests reporting violators to the State Bar instead of prosecutors withholding discovery.
Any privacy interest that a complainant may have in discoverable material is protected by the Morton Act’s safeguards and cannot trump the rights of the defendant to a fair trial. If the prosecutor possesses information relevant to a criminal proceeding that a complainant does not want disclosed, the proper inquiry is whether further prosecution is in the interest of justice; the inquiry should not be directed towards determining how that information can be.shielded from counsel for the defendant who is facing the full weight of the criminal justice system.
Trouble accessing law enforcement files
Disappointingly, the section on law enforcement practices failed to focus on the issues of impeachment evidence in police personnel files or do-not-testify lists maintained by DA offices, which to me are the central, emerging issues related to law enforcement's compliance with the new statute.
Instead, they criticized a "Brady Compliance Form" used by 11 counties which "misrepresents the prosecution's duty to disclose favorable evidence to the defense and mischaracterizes the types of information that may be mitigating, impeachment or exculpatory evidence," focusing on more workaday information in police files that may not be turned over. I agree that's an issue. As Grits has described before, "some agencies have begun scanning officers' written field notes and attaching them to incident reports" to comply with the Morton Act "while others have been resistant, fearing the notes and the report may contradict." But the unaddressed questions surrounding impeachment evidence seem at least as pressing. And there are statutory hurdles to solving that problem, whereas I suspect the courts can eventually work out which parts of police investigators' files the defense bar may see under their own, present authority.
Timing of Discovery
Perhaps the most interesting portion of the report for me regarded the timing of discovery, focusong on the need for defense attorneys to have information as early in the process as possible and decrying prosecutor policies that delay discovery until later in the process or even waive it as part of a plea. Grits particularly liked their framing of this as an innocence issue:
An even playing field during the initial phases of a case also increases the accuracy of plea dispositions. Prosecutors frequently incentivize guilty pleas during the initial phases of a criminal proceeding by offering some concessions—typically a reduction in the charges in exchange for bringing the case to a swift resolution. In theory, this bargaining process is conducive to a streamlined criminal justice system.As a result of this information disparity, "Wrongful pleas are a particular concern in Texas," particularly at the misdemeanor level, where many defendants may appear pro se or accept fast-turnaround plea deals.
Yet, when coupled with unequal access to information, such promises of favorable treatment substantially increase the risk that an innocent defendant will admit guilt for a crime he did not commit. Prompt access to the state’s evidence allows the defense to enter informed decisions regarding how to proceed and minimizes this “innocence problem.”
There's a chronic "innocence" issue that nobody ever discusses.
Addressing a topic on which this blog has commented in the past, the authors lament that "the defense's access to information continues to be used as a bargaining chip during plea negotiations and other pretrial proceedings." At least "50 jurisdictions across the state produced a form that a defendant would sign waiving at least some discovery rights," we learn in a footnote.
Some counties leave production of discovery at prosecutors' discretion, ignoring the Morton Act mandates. Others "require defense attorneys to waive objections to evidence in exchange for access to particular materials." And some "ask defense attorneys to waive the right to make certain applications to the presiding court as a condition of receiving discovery." Such "discovery contracts are not only problematic, say the authors, they also are illegal and unethical."
Grits was particularly pleased that, to demonstrate the problems with such waivers, the report used the Jonathan Salvador forensic error case as a hypothetical:
case law suggests that favorable evidence [arises] in a significant number of cases after disposition. This favorable evidence may include the discovery of new evidence, such as previously untested DNA or the confession of another person. It may also include evidence of forensic failure, such as the discovery that a lab technician perjured himself, putting all cases in which he testified in doubt, or a forensic scientist who falsified results. This latter example is taken straight from the headlines. As discussed in the Introduction, after chemist Jonathan Salvador was found to have falsified test results in drug cases, questions were raised about convictions in thousands of cases that he had worked on throughout his tenure.The report closes out with discussions of disclosure formats, discovery documentation, and costs. There's lots more detail than I've included here (the thing rounds out at 222 footnotes), so anyone interested in the topic should go to the source.
While district attorneys in several affected counties notified defense attorneys of the discovery soon thereafter, the Fort Bend County District Attorney waited almost a year to do so. Many defendants whose convictions rested upon this chemist’s fake test results languished in prison for more than a year before they were notified of this scandal. Had those defendants signed blanket waivers of the right to discovery without an exception for the production of information subject to Article 39.14(k), they might never have received word of Salvador’s falsifications.
Grits thought the groups did a decent job for a first-cut analysis but suspect that unmentioned issues - particularly regarding impeachment evidence in police disciplinary files - may become more central flashpoints of contention than some of the other, albeit important subjects raised in the report. And some of these problems will diminish as appellate courts begin to rule on the Act and supply guidance. Big ships turn slowly, it would be folly to expect everything to go completely smoothly. Still, the Morton Act was a major turning point and the growing pains described in the report don't diminish its critical importance for ensuring a fair justice system and preventing false convictions.