Monday, January 06, 2014

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.


Anonymous said...

Well good. I've run into some unethical prosecutors in my time.

Anonymous said...

Another law with no repercussions for breaking it. Judges are not going to enforce this unless they are ultimately accountable. Looks like we need a Michael Morton II Act. The same holds true with enforcing perjury violations of witnesses. But that's another issue altogether. Sigh...

Lee said...

So, Who prosecutes the prosecutors?

Anonymous said...

So, Who prosecutes those witnesses providing perjury in favor of the prosecutors (e.g. cops, forensic lab analysts)?

Thomas R. Griffith said...

Grits, the very moment that the Bill became a Law without any penalties for Ignoring it, we all knew good and darn well, that come Jan. 1, 2014, the old school would Ignore it as long as possible, as the rest would at least try to make it look like they were following it. It’s the 7th of Jan. and that means Texas spent 5 whole days (minus Sat. & Sun.) Ignoring it. Anyone knowing of additional Courts that have implemented it from day one is asked to share in order to recognize the Good DAs’ & their ADAs’ publicly, along with the Good Judges shown to have properly exercised (umpired) the Law.

Sadly, the MMA of 2013 will be a temporary victory on paper until we demand it be followed by another ACT with mandatory harsh penalties for those that don't. The Rogue DAs & ADAs of Texas (former & current) are laughing their butts off, while the Good ones are nowhere to be seen or heard from as not to rock the boat. Believe it or not, they are all in the same dues paying clique. I encourage the Good to come forward and implore fellow brethren & sisters to actually Do the right thing. Thanks.

Thomas R. Griffith said...

*SOLUTION(S): So far, possibilities come from the GFB Comment Section where one suggested - a need for a MMA II that addresses Judges. Sounds like a no brain-er Clause that should have been part of the original concept, since the damn problem isn't solely a Prosecutor based only problem. Believe it or not, it takes a Team effort to obtain a wrongful conviction folks . It’s a nationwide epidemic and we the people deserve what we allow, as for the cure is our hands since the Judges forgot their original roles in the game. Now, who has the balls and spare time to get another bill in play to correct the lameness of the first one?

*SOLUTION(S): I’m calling for considerations re the following – The Creation of a NEW OATH for anyone wishing to do business in Texas utilizing a Law Degree w/ the inclusion of legalese addressing the taker’s pledge to adhere to the implied logic of the RULES of COURT & PROCEDURES and any & all supplemental ACTS aimed at reducing gamesmanship where a false arrest results in a wrongful conviction due to systemic agreements to forego pre trial investigations and the elimination of Jury Trials. All, despite one’s actual innocence or guilt being a factor. Believe it or not, a 95% - 97% Plea Bargain rate does not mean that the majority of crimes are being cleared. It just means that the system has agreed to FAKE-OUT the public.

*SOLUTION(S): Mr. Rob Fickman (btw, one very bad-ass REAL CDL that does not do Divorces on the side or visa-versa) has embarked on an effort to Reform the Judges starting with the misdemeanor courts via an Open Letter addressed to the Harris County Criminal Court Judges asking them to take a step back and check themselves. While the old school fat cats will Ignore his pleas, the rest will at least think about their actions due to knowing the eyes of Texas are upon them. Believe it or not, all 15 misd. courts in Harris County, Texas will be monitored as election time & annual Judicial Report Cards will be their downfall or bullet points for re-election. Consider taking time to visit his blawg and read it for yourself and if you are feeling froggy, leap at the chance to politely ask them to – Please do the right thing.

*Others with solutions of their own are encouraged to do something positive and share so that others may assist. Thanks.

Anonymous said...

Someone from England or Wales shot an email asking

You 'yanks'(no disrespect intended) had Brady on the books since 1963 and now have Morton. There seems to be two Laws addressing the same problem. Can you kindly explain what the difference is between the two? And if they (Prosecutors) didn't have to follow the first one to the letter, or suffer consequences, what is in the second Law that makes them accountable if they treat it like Brady?

Now, the Brits are scratching their heads as they laugh at us. Toss 'em a bone if you have answers, I don't?

Anonymous said...

Perhaps violating Brady or the Morton Acts should be a capital offense.