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.