Thursday, June 05, 2014

The Michael Morton Act five months in: Too much? Too little? Too soon to tell

The Texas Tribune's Terri Langford last week had a brief overview (May 29) discussing implementation of the so-called Michael Morton Act, which readers will recall was Texas' open-file discovery statute for prosecutors in criminal cases. The big complaint: "Prosecutors say the [law] ... is driving up evidence costs." The article closes with this summation of perceived flaws of the Michael Morton Act according to the sources in Langford's story:
There have been some kinks to work out, though. Besides the cost, there are questions about measures in the Morton law that prevent criminal defense attorneys from disclosing some information to their clients. The law prevents lawyers from disclosing certain information, primarily to protect victims. A motion has been filed in a Lubbock case that claims the Morton Act violates a defendant's Sixth Amendment right to effective assistance of counsel because preventing full disclosure impedes a thorough investigation.

And back in Dallas County, the law has raised questions about whether prosecutors should get more access to grand jury transcripts. 

Brad Lollar, a Dallas County public defender who is defending a client charged with capital murder, said the district attorney is fighting his request for a grand jury transcript.

Defense attorneys are not permitted in grand jury proceedings. But they can ask a judge for transcripts of the prosecution witnesses' testimony before the grand jury.
Defense attorneys must prove that they have a "particularized need" for the information. Lollar argues that because a transcript of any witness testifying before a grand jury could potentially help his client, the particularized need requirement has been expanded by the Morton law.

“We routinely request grand jury testimony in our pre-trial motions. That is routinely granted by the judges,” Lollar said. “I think they are concerned that the Michael Morton Act will require them to turn over grand jury transcripts across the board, if [transcripts] exist. We’re saying a reading of the Michael Morton Act will require that.” 

Kepple said his reading of the new Morton law says it does not “disturb” the protections of grand jury secrecy already in place.

“I would argue that grand jury testimony is still covered under the same rules beforehand,” he said. 
Grand jury testimony, though, is not specifically addressed in the Morton law, so lawmakers may re-examine questions about access to it during next legislative session.
Those aren't the only hiccups, though. For a few more examples, let's return to Grits' notes from the May 1 gathering of the Court of Criminal Appeals' Criminal Justice Integrity Unit (TCJIU), reviving a few aspects of the event that didn't make it into my earlier writeup from the meeting.

Judge Barbara Hervey and others expressed concern that, while prosecutors are responsible in the courtroom for revealing exculpatory information held by any arm of the state, folks like crime-lab employees or local police may not fully understand that the state is responsible for revealing every detail of their work. For example, said Hervey, some agencies have begun scanning officers' written field notes and attaching them to incident reports while others have been resistant, fearing the notes and the report may contradict. Calling these debates "fallout" from the Michael Morton Act, she suggested that the Texas Commission on Law Enforcement expand training for police officers on Brady/Michael Morton Act obligations as well as report writing. She also suggested that crime lab workers receive similar training, which in my experience is sorely needed.

Another Brady issue raised but left unresolved from the TCJIU meeting: Many if not most District Attorneys keep a list of police officers in their jurisdiction who have had disciplinary problems that might impeach them as witnesses on the stand. In Harris Tarrant County this has been dubbed "the pink list," while in other counties DAs call it a "do not sponsor" list. The problem: Police departments sometimes fail to notify DAs of significant disciplinary actions. Worst case outcome for the state: The information is discovered independently by defense counsel and sprung on prosecutors at some critical point in the process. El Paso DA Jaime Esparza told the integrity unit that information on his county's version of a do-not-sponsor list often comes from defense counsel.

In non-civil service cities (the biggest are Dallas and El Paso), incomplete reporting about police disciplinary histories would eventually backfire because the bulk of disciplinary files are open records under the Public Information Act. So often defense counsel can independently find them, if they try. But thanks to 1989 amendments to the statute, the +73 cities which have adopted the state civil service code now keep two personnel files: A public one where they keep commendations and brief summaries of disciplinary actions (defined as suspensions or demotions), and closed files that include most workaday disciplinary violations and potentially other information that arguably should be turned over to the defense under the new discovery law.

If those lesser violations include, for example, confirmed allegations of lying, does the Michael Morton Act trump the civil service code? How much of the second, secret personnel file must civil service departments reveal to prosecutors or for that matter defense counsel? At the moment, that's being interpreted differently by different departments. And that doesn't even take into account disciplinary actions against an officer by past law-enforcement employers: Even police human resource officers can't seem to crack that nut.

At the TCJIU, panelists mostly suggested more training as the remedy for most Michael-Morton-Act related complaints they discussed, and for now, I agree. It's too early yet to tell if the law needs to be "fixed." By 2017-19, it'll be clearer exactly what is and isn't working with the Michael Morton Act. These issues will have either worked themselves out or wound themselves into a knot; the same is true for prosecutors' concerns about the law raised in Langford's story.

Whether one considers the Michael Morton Act too onerous or incomplete, the statute only took effect five months ago and Grits would argue that it's too early yet to talk about significant changes in the coming 84th legislative session. The Lege should give the law a couple of years to get its legs under it, for prosecutors and cops to train on it, for judges to rule on it, for appellate courts to interpret it, for analysts to study more than anecdotes, before looking to alter a law that at most needs tweaking.

CORRECTION/Ed. note: An earlier version of this post erroneously stated that Harris County maintained a "pink list" of police officers with significant disciplinary problems. It was actually Tarrant County.  My apology for the error and thanks to the commenter who listened to the TCJIU audio to do the needed factchecking. My bad. Lo siento.

Y MAS: Paul Kennedy has little sympathy for complaints with the Michael Morton Act. 


Jefe said...

I spoke to several reliable ex-prosecutors from Harris County and none had heard of a "pink list." Are you sure about the source? Because, if true, I would add it to discovery requests.

Gritsforbreakfast said...

I haven't seen the list, Jefe, but it was openly discussed at the recent Criminal Justice Integrity Unit meeting in the chambers of the Court of Criminal Appeals. I've only got my own, handwritten notes to back it up, but they recorded the event. Here's the audio of the meeting.

Anonymous said...

There seems to be nothing new in the requirements of the Morton Act that the feds haven't been dealing with for years. If people are complaining they simply are trying to bullshit their why out of being ethical in their actions.

As for lying cops, why wouldn't everyone want to know who the liars are? If they previously perjured themselves, for example, they need to transfer to the fire department. If they lie on the stand, they lie to their supervisors. Just saying. :~)

Anonymous said...

Jefe and GFB-

The prosecution's end-run to the unfortunately discovered "pink list" is to have a co-worker/substitute testify to the report/notes written by the person "pink listed." There's plenty of precedent rulings declaring this a "confrontation clause violation", but that doesn't stop prosecutors from attempting it, and getting away with it.

Or, in the case of forensic labs, the evidence is tested a second time by the analyst the DA (or Crime Lab) wants to testify (i.e. a non-pink listed). The results of the first lab report will, of course, disappear from existence, because no one (i.e. defense attorney) can really knows how many times an item is tested inside the lab or if the person signing the report (presented in court) had anything to do with the analysis. And no one (i.e the State) wants to explain why the "pink-listed analyst" is not testifying to the results that they got the first time the evidence was tested. (This is similar to "shopping" for an expert.)

The fact that "pink lists" exist is proof positive that something is very, very wrong in Texas.

Darrow said...

Rule 608(b) of the Rules of Evidence will not allow the defense to use "pink list" evidence. And the Morton Act did not change existing Texas law: evidence that is not admissible is not discoverable.

Anonymous said...

Here's an interesting little quirk in the Morton Act. The act requires that prior to the disposition or trial of cases, both sides must certify on the record what items of discovery have been produced by the prosecution to the defense. Evidently, in some counties defense attorneys have figured out that they can refuse to agree to this certification an use that refusal as a delay tactic in prolonging case dispositions or trials. In addition, because many court appointed attorneys are compensated, in part, by the number of court appearances they have, this enables them to pad their fee schedules.

Anonymous said...

Since when is admissibility a requirement for discoverability? For example if the ADA in conversation heard an LEO make a statement contradictory to an affidavit or offense report, that ADA's knowledge is probably not admissible, but it leads to admissible evidence from the LEO. The ADA is obligated under Brady and MMA to disclose it...but often will not or if caught will claim he did not catch the inconsistency.

Darrow said...

I suggest you read cases from the Court of Criminal Appeals that impose such a requirement, unlike the Fifth Circuit. Since the Morton Act says nothing on the subject and since the Legislature is presumed to be aware of the CCA's cases, the CCA may very well say admissibility is a prerequisite. I agree with you that it should not be, but no one would listen when I pointed out this flaw in the Act, or that the test for harm if the Act is violated is not the test for constitutional harm. Indeed, in Morton's own case , the State may well have argued it had no duty to reveal his son 's statement because it would have been inadmissible hearsay from an incompetent witness (and I believe Anderson's lawyer did argue this).

Jefe said...

OK, I listened to the whole Justice Integrity Unit meeting audio and at about 1:04:20 Lisa McGinn gives a report on Brady compliance at DA offices. She says that Tarrant County has a "pink sheet." There is no mention of Harris County's policies on the recording.

Gritsforbreakfast said...

Jefe, I will change it in the post; I must have misread my notes, or misrecorded it in the first place. Thanks for fact checking me!


Anonymous said...

evidence that is not admissible is not discoverable.

This is not really true. Many things are discoverable if they may LEAD to the discovery of admissible evidence. So, if a pink list is out there, and one of your cops is on it, that may give you information that you would otherwise not have had to ask specific questions about why that cop is viewed as dishonest. and the dishonesty of a witness IS admissible for impeachment purposes, at least.

For the life of me I do not understand why discovery is so foreign to criminal lawyers. It is LAW 101 in the civil courthouse.


Darrow said...

Sorry, you 're wrong . Read the plain language of Rule 608(b) and the Texas cases on Brady. Find me a case where a conviction was reversed because the court would not let in evidence that a cop had lied . You won't find any, not from the CCA.

Darrow said...

And as to discovery, read Pena v. State, 353 S.W.3d 757 ( Tex. Crim. App. 2011). Never confuse Justice and the Law.

Anonymous said...

Pena is actually found at 353 S.W.3d 797. Before the MMA there was no general right to discovery in a criminal case. Rule 192.3 of the Rules of Civil Procedure allows discovery of any matter that will reasonably lead to admissible evidence. The "admissibility" bugaboo unfortunately applies to evidence that is exculpatory yet not considered "Brady" evidence (that must thereby be disclosed). If the DA thinks/believes/hopes/claims the evidence at issue wasn't admissible, he can sit on it and hold a plausible argument for why he did so if anybody every finds out what he did.

Darrow said...

Thanks for correcting the typo. Maybe it can be argued that the civil rule applies since the MMA does not address the issue. I certainly would continue to ask for discovery of any misconduct by a potential witness for the State, including police officers. You have nothing to lose. And if the misconduct is revealed, you can try to argue that it shows bias under Rule 613. After Morton, I suspect (hope) that prosecutors will be wary of failing to turn over such evidence, but they will continue to fight about its admissibility.

Anonymous said...

The Pena decision was about admissibility under Brady, not under the new 39.14 discovery rules.

The new rules allow discovery of exculpatory, impeachment, or mitigating evidence contained in the state's privileged communications or work product and admissibility is not mentioned:

(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

... so make your discovery requests under both Brady and 39.14 ... admissibility is only a factor under the former.

Darrow said...

If you read Pena, you will see that the Court simply added the admissibility requirement to Brady. Who is to say that they will not do that to Article 39.14 ? Go ahead and make your request under both Brady and Article 39.14, but this potential problem could have been avoided. And the test for harm on appeal could have been the constitutional test, not the statutory one. Why leave anything to the tender mercies of the CCA ?

rbxela said...

To Darrow - subsection (h) of 39.14 is much broader than Brady - covers exculpatory, impeachment and mitigating evidence and information. Courts could read an admissibility requirement into it but that would be a misunderstanding of the intent signaled by such broad language.