Friday, April 12, 2013

Discovery reform passes Senate with defense bar on the sidelines

The so-called "Michael Morton Act" (SB 1611) related to discovery in criminal cases passed the Texas Senate yesterday. See mostly laudatory coverage from the Austin Statesman, the Dallas News, and the Texas Tribune. Here's the text of the version that passed the Senate.

Last week Grits mentioned that a proposed gag order related to information released by state - the brain child of state Sen. Joan Huffman - was the last stumbling block in negotiations. That's now out of the bill and a much weaker prohibition on defense disclosure to third parties has taken its place. This portion of the statute promises to be a source of great confusion. Houston criminal defense attorney Paul Kennedy suggested on his blog the bill would "seem to bar defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense." I'm not a lawyer, but I don't think that's correct. (See subsections e, f, and g in the bill text for restrictions on what the defense can share.)

For starters, he should have added a caveat that the legislation allows defense counsel to report alleged official misconduct to an "administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint." Of course, complaints to the state bar are secret and, when filed against prosecutors, rarely upheld. So that's not a meaningful substitute for press scrutiny, which has done more to rein in prosecutor misconduct than any "administrative, law enforcement, regulatory, or licensing agency" you could possibly name.

But it further overstates matters to say that the bill would "prevent the defense from providing information to the press regarding any issues of misconduct ... if that information was obtained through the discovery process." As I read it, the bill would only prohibit releasing the name and identifying information of victims and witnesses disclosed by the state, and then only if that information had not already come out in public documents or discussions in open court. Beyond that, subsection g specifically declares that "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." (See Rule 3.07 for the parameters of allowed communication.)

For the most part, the name of the victim and key witnesses will already be in arrest or search warrant affidavits, be discussed in pretrial hearings, or otherwise become known in the course of court proceedings. There may be circumstances where the prohibition on revealing a hitherto un-released witness name could be problematic, but in routine matters it shouldn't come into play too often. Otherwise, the bill explicitly protects the ability of attorneys to speak publicly about their cases just as they've always done. Sen. Royce West confirmed that through questions to Sen. Huffman on the floor about her amendment nailing down her legislative intent. These modest limits are far from a blanket prohibition on sharing information with the press.

On the upside, Kennedy pointed out that the bill provides more disclosure than required by federal court precedents, exclaiming that "while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment." Still, he lamented, "we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement."

Notably, the Texas Criminal Defense Lawyers Association wasn't at the table when the final deal was struck. Said the Statesman, "Wednesday’s intense negotiations — including not-so-gentle prodding by [Lt. Governor David] Dewhurst, who gathered all the parties into a room in the afternoon and told them not to emerge without an agreement — produced a breakthrough on victim and witness information that saved the legislation." The Trib recorded that negotiations "included Morton, [his lobbyist Thomas] Ratliff, the state prosecutors association, Huffman, Duncan and Sens. John Whitmire and Royce West." It's telling that the prosecutors' association was in the room but TCDLA was not. Watching the defense bar engage on this issue has been like watching a checkers player take their first stab at chess in a competitive tournament.

This bill is now a lot better than prior versions, though Grits would like to see sanctions installed for prosecutors who fail to follow the new rule. Perhaps that's something that could get tacked on on the House side.


Anonymous said...

Grits, prosecutors walked away from reciprocal discovery in order to get this legislation passed. Why? Because it was the right thing to do. I know you find that very hard to believe. Texas prosecutors have been opening their files for quite some time now. We are at least a couple decades past the discovery standards and practices that lead to the wrongful conviction of Michael Morton. In fact, I'd bet you'd have a hard time finding any current prosecutor in Texas who approves of any of the tactics or decisions made by the prosecutors in that case. What you are correct on is that this bill was crafted largely between prosecutors and representatives of Michael Morton. Sen. Huffman added the provisions regarding third party disclosure at the very end of the discussions. Perhaps one day, Texas prosecutors will be given credit for the their efforts and concessions in enabling the passage of this progressive piece of legislation. I doubt it will be on here though.

Gritsforbreakfast said...

3:09, this post had not one bad word to say about prosecutors and instead bashed the defense bar, so I'm unsure what you're complaining about. Is it just out of habit?

That said, if prosecutors agreed to this because it's "the right thing to do," does that mean that all those years they opposed open-file laws they were knowingly doing the wrong thing? IMO people's actual motives on all sides are more complex than that, but that seems to be the clear implication of your comment.

I agree, prosecutors deserve credit for this concession, just as some of them deserve blame for all the episodes that brought this issue to the forefront of public consciousness. Happy now?

Anonymous said...

Yes, I am. Thanks. With that said, I don't believe it's true prosecutors have been opposing open file laws. In fact, there are likely only a couple of prosecutors' offices across the entire state that don't have some variation of an open file policy at present. If you'll recall, TDCAA released a report last year on prosecutor misconduct. Although some on the defense side of the ledger were dismissive of that report and called it self-serving, the report candidly acknowledged that closed file policies (as in the Morton case) had contributed to many of the wrongful convictions. Most prosecutors have been aware of this fact for a couple of decades. That's why you've seen so much movement toward more transparancy (that, and the fact that it cuts down on Brady claims on appeal). To the extent there has been opposition to new discovery laws, it has been most frequently from the defense attorneys who were opposed to any form of reciprocal discovery. You've even commented on this. TCDLA even passed a formal resolution opposing Sen. Ellis' original bill several weeks ago. Once prosecutors decided to forego reciprocal discovery in SB 1611 and the issue regarding disclosure was addressed to the satisfaction of Sen. Huffman, the deal was done.

Gritsforbreakfast said...

4:26, for the life of me I can't tell who you think you're arguing against. One might dispute some of your revisionist history but it's irrelevant to the topic of the post. Otherwise, this blog has fairly harshly criticized the defense bar for their stance on Ellis' bill, so you're not debating me nor anyone else that I can tell. As I said above, you seem to just be complaining out of habit. Hope it makes you feel better.

Anonymous said...

"I'd bet you'd have a hard time finding any current prosecutor in Texas who approves of any of the tactics or decisions made by the prosecutors in that case."

One doesn't have to look any further than Smith County. If you think these kinds of things are not still going on, go spend some time in Smith County.

Anonymous said...

An open file policy doesn't prevent prosecutors from hiding evidence. Smith County allegedly has an open file policy. But, they still manage to hide evidence. See the recent Mineola Swingers Club case, for example.

The primary cause of prosecutorial misconduct has not been addressed - the lack of any accountability. The ridiculous doctrine of absolute immunity is going to have to be changed before we see any real progress on this issue.

Anonymous said...

Seems to me that if Jack Skeen and Matt Bingham were doing such a poor job, the good, law abiding folks in Smith County wouldn't keep electing them.

Prison Doc said...

Anon 5:53 just keep telling yourself that. One problem with criminal justice reform as that the vast majority of citizens don't have a ringside seat at seeing how screwed up, dishonest, and unequal everything is. If they did things would change.

Anonymous said...

I suspect 5:53 is a prosecutor in Smith County. If so, doesn't he/she illustrate the need for reform? This person appears to be indorsing the behavior of Skeen and Bingham which include withholding evidence, lying to the court, hiding a witness, inventing rules of evidence to help the prosecution win, etc. Apparently, 5:53 feels this behavior is okay as long as the official gets reelected. Isn't that some warped logic? Of course, people are often fooled by slick politicians. The voters of Smith County just seem to unusually gullible. Btw, 5:53 referred to the citizens of Smith County as "law-abiding." The statistics call that label into question. Smith County locks up more of its citizens than most counties similar in size. This fact led someone to once comment that if you live in Smith County and haven't been arrested, its just because they haven't gotten around to you yet. So, apparently, Smith County has more than its share of criminals.

I find it amazing that someone is willing to actually endorse the behavior of sociopaths like Bingham and Skeen. But then, I hear Hitler and Stalin were popular leaders also.

Anonymous said...

Yes the defense attorney's lobbyists are as lame as always. VERY lame.

Anonymous said...

I took 5:53's post as satire. Is my satire meter just too sensitive?


Anonymous said...

Who cares who's on first other than the usual suspects and of course himself? Old habits are hard to break.

To the topic of the post - criminal justice system reform, Why? Why in the hell did the TCDLA decide not to take to the field and play ball in the ninth inning?

With recipropcal rightfully removed and leaving the accountability clause to be ignored, beggs to ask if it was done on purpose as a tit for tat. Why else would Morton's coach fail to call for it. Despite the cool nickname, this isn' a Morton moment, it's a human being factor and demands the presense of key players with the power to exact reform at all meetings.

FWIW. Not one single member we asked yesterday or today had an answer. The president should have at least showed up with tape over his mouth or with his hands cuffed behind his back. Playing chicken and hoping the House has the accountability balls is a defenseless defense. Not knowing why you or your associates are no-shows is lame indeed (or a tactical move?).

Anonymous said...