Judges must enforce Michael Morton Act, now in effect

Since the New York Times recently decried "rampant prosecutorial misconduct" related to concealment of exculpatory evidence, we should note that Texas just implemented the "open file" reform for which the Grey Lady's editorial board was advocating. The news hook for the Times story was a recent, much-discussed dissent by 9th Circuit Chief Justice Alex Kozinski (whom Grits had the good fortune to dine with last year at a conference at Yale).

The Dallas News editorial board over the weekend had a good piece noting that Texas' new law requiring prosecutors to open up their files took effect at the beginning of the new year.

Effective Jan. 1, there’s a new law in Texas bearing Morton’s name. Reflecting the state’s determination to purge the justice system of gamesmanship, the Michael Morton Act sets out clear requirements that prosecutors must share certain case material — such as police reports and witness statements — with the defense. Had Morton’s lawyers seen the entirety of the case file — had parts not been hidden from him — he would never have been robbed of freedom for a quarter-century.

The DMN cited a death penalty case first called into question by the Dallas DA's Conviction Integrity Unit that shows why such a statute was needed:

A 21-year-old death penalty case that’s still playing out in the courts shows how procedures have changed for the better. In November, the prosecuting and defense attorneys from the original trial of Joseph Roland Lave, sentenced to death in the grisly 1992 Herman Sporting Goods killings in Richardson, were called to testify in a challenge to his conviction.

One of Lave’s former attorneys testified that the defense never saw the 159-page police report on the slashing-bludgeoning deaths of 18-year-old night clerks Frederick Banzhaf and Justin Marquart. That’s almost unbelievable by today’s standards, with the open-file policy of Dallas County District Attorney Craig Watkins.

One side question probed by Lave’s current attorneys is whether authorities manipulated a surviving witness and, unbeknownst to the defense, helped reshape her evolving recollection of the attack before trial. Thus, disclosure of evidence remains an issue two decades later.

The Michael Morton Act is a clear determination from lawmakers that evidence must come completely out of the shadows for airing where it belongs — in front of a jury.

Notably, the Ellis County DA recently requested an additional staff member from the commissioners court to implement the new law, but most others seem to be doing it with existing resources. See additional, recent coverage of the new statute from the Longview News-Journal.

It remains to be seen whether Texas District Attorneys who are used to greater selectivity about what evidence they share with defendants - particularly outside the major urban areas - will fully comply with the statute. They've had time to do their training and set up internal systems. But as written, the new law includes no penalty for prosecutors who violate its tenets. So to the extent its true, as Judge Kozinski wrote, that “There is an epidemic of Brady violations abroad in the land,” his observation that “Only judges can put a stop to it” still holds in Texas, even in the wake of the Michael Morton Act.